LL Kaplan
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March 16, 2021
Legal Briefs

Legal Briefs: Summing-up the Totality of Circumstances in Use Of Force Investigations

The Fourth Amendment Protects against Unreasonable Seizures

A Brief Recap

In the first and second part of the series, we explored the four elements required for a federal charge under 18 USC 242, Deprivation of Rights: (1) Act under Color of Law; (2) Involve a Federal Constitutional Right or Statute; (3) Be Unreasonable Under the Circumstances; and (4) If Unreasonable, also be Willful. Element 1, Color of Law, is usually not an issue as most excessive force cases involve law enforcement officers on duty. As to Element 2, the Federal right involved is the Fourth Amendment protection against Unreasonable seizures. Arrest or physical harm by a government official is considered a "seizure". We also discussed how Force can be Unreasonable (Element 3), but still NOT Willful (Element 4) and therefore not a violation under 18 USC 242.

I also emphasized that each case is evaluated on its own specific facts, called the Totality of Circumstances (TOC), and how crucial it is to review ALL the evidence available before making a decision. Specifically, even though the bodycam, dash-cam, cellphone or surveillance videos might often appear to tell the whole story, they just as often might not. The videos, while key pieces of evidence, are just that: pieces of the puzzle, not the whole thing. The visual evidence still needs to be placed into context amongst the other circumstances that led to the decision to use force.

What are some of these other "circumstances"? Today we'll explore a few examples of the considerations used in evaluating whether the Use of Force in a certain case was justified.

Mistake or Misperception

As noted last time, the United States Supreme Court (SCOTUS) has long held that mistake, panic, fear, negligence, misperception, or even poor judgement are by definition not "Willful" (so no violation of 18 USC 242). Willful is a higher standard to meet than "intentional". It's a major reason why few cases are made under 18 USC 242. Mistakes can happen in many contexts including misidentification of a person, misperception of a situation, or basing an action on bad intel. In all cases, the "mistake" still has to be reasonable under the circumstances.

For example, if the officer responding to a call is told by a reliable source (dispatch/known informant) that a person is armed/dangerous or has just committed a violent act, unless the officer has reason to doubt the intel, it's reasonable for the officer to rely on that information. Let's say the information is wrong, but the officer doesn't know that. If the officer applies force that would be reasonable if the information had been accurate, then the "mistake" would likely negate any Willful intent (and thus no violation under 18 USC 242). Remember, the point of view for the investigation is from the Officer on the scene, including what was known or thought to be known at the time.

Beside incorrect information, another common "mistake" is the misperception of a non-lethal object, such as a cellphone or wallet, as a weapon. The Officer often has only split seconds to correctly perceive if the partially obstructed object is a threat or not. The short time is often exacerbated by other factors such as poor lighting. All of these details are considered in the Totality of Circumstances.

What does Time have to do with Perception?

This is how my simple brain understands this concept. Bottom line: time matters!

The amount of time an officer has for perception is key. In normal contexts, images travel from the eye (1) through the brain pathway (2) all the way to the visual cortex (3) where the image/situation is processed and evaluated and then sent to the Amygdala (4) for a response. The Amygdala determines whether it's a friend or foe and thus whether a fight or flight response is required. The more time to properly process the input, the higher likelihood the Amygdala's response will be suitably appropriate.

However, in situations where time is short, the normal perception pathway is shortened considerably. Although this happens to just about everyone, officer and non-officer alike, let's stick with our law enforcement situations.

Let's say a person reaches behind their back despite the officer's order not to do so. The officer has mere fractions of a second to decide if the person is dangerous or not, friend or foe. Are they reaching for a wallet or a gun? The visual input goes straight from the Thalamus (2) to the Amygdala(4) (big red arrow) bypassing the processing by the higher functioning visual cortex. The Amygdala, having less reliable sensory input to work with, grasps onto any bits of info it can, right or wrong, from the memory and/or experience. The officer's response will be based on this incomplete data. Thus, the amount of time available to perceive and process the situation is critical.

This perception issue also involves the concept of Action v. Reaction. It is well settled that by the time a situation is fully perceived (eg. a gun pointed right at you), it's likely too late to react "in time" to beat the initial action. Here is a great article on this subject that discusses (much better than I can) the misnomers and misunderstandings as well as the factors involved in these Action v. Reaction situations with Law Enforcement.

What Other Factors Might Impair Proper Perception?

Amount of Light/Weather

Bad weather and bad light can also impair perception. Compare these two slides with the same objects in different lights. Though it might still be hard to discern between the two even in broad daylight, the lack of light just adds an extra level of difficulty. All of these factors are taken into consideration during an investigation.


Look-a-Likes or "fake" firearms present particularly difficult situations even with plenty of light and time. Although the below photos are a few years old, they are just as instructive. Let's assume for this first photo that time and light are not factors. Would you be able to tell which is real or fake?


Give up? The bottom one is real. How about this next one below? Pretend it's dusk or dark and you only have half-a-second to decide.


The one on the right is real. Now, in the one below, there is only one authentic firearm. Which is it?


The bottom right (circled) is the real one. The rest are fake!!! All were confiscated from subjects after being used in crimes.


And then there are items out there like this:


Yes, this is, or was, a real cellphone holder. To my knowledge it was not involved in any shooting case, but it's included here to show the types of "look-a-like" objects that officers may face. Would you think this is real from a distance?

Or how about this one below, just seized this past week. We've been talking about fake guns looking real, but how about a real gun trying to look fake? What problems might this pose for law enforcement?

Seized as part of drug raid in North Carolina

Use of Force investigations where "fake" or "replica" guns are the reason for the application of force involve two questions. First, was it reasonable for the officer to be mistaken about the gun? In situations like the ones pictured above, where replicas are meant to look real, the answer is usually yes and the mistake is usually deemed "reasonable". But even if the mistake was reasonable,a second question still has to be addressed. Namely, had the gun been real, would the officer have been justified in using force in that situation? If the answer is yes, then there is no violation. Why is the second question important? Because in most situations, just possessing a gun, real or not, does not automatically justify deadly, or compliant, force. Again, the case turns on the circumstances.



Although I haven't used situational videos up to now, perhaps this is a good place for one. I used a variation of the videos below in my class presentations to illustrate several points about perception and circumstances. I must warn you again that these are real and graphic and involve a real shooting. If you choose to view the videos, please consider how the factors of bystanders, time of day/available light, and amount of time to perceive and act worked in this situation.

Sgt. Green's - https://youtu.be/0V9AOsWQzpc     Officer Griffin's - https://youtu.be/kSiqfM2GR4E

Did you have enough time to determine if the gun was real or fake? It was a fake, but purposely made to appear as a 9mm handgun. Did you see the firearm being drawn? How quickly do you think you could you react? Was it a surprise that it went from a fairly calm situation to chaos so quickly?

As further explained in this article, the officers' use of deadly force in this situation was deemed justified and reasonable under the circumstances. Although the article does not specifically say it, clearly the Grand Jury also found the officers' "mistake" about the gun reasonable too. No federal charges were filed either. It should also be noted that even though the body-cam footage in this instance was important, an investigation was still conducted. Again, the video had to be placed in context of the whole situation, the Totality of Circumstances.

Some Other Practical Considerations

Authority to Use Force Can Be Fluid

I hope I have made clear that the use of force, either deadly or compliant, rests on the facts of each case. The basic question for investigators is when the "authority" to use force began (if at all) and when it ended. That is, when was the moment the officer was first justified in using force (and what kind) and when did that justification end. Force (deadly or compliant) applied after the authority/justification ends or without any justification is considered "Excessive" and an "Unreasonable Seizure". However, it has to be said that the justification and authority can be fluid and come and go. A compliant subject can suddenly turn non-compliant and threatening as shown in the videos above.

Weapon/Tool Used Is Not Generally Important

Another issue is that neither the "threat" nor the response of "deadly force" has to involve a gun. The weapon itself, whether wielded by the suspect or the police, is not usually important. Think about it. Just about any household or common object (even your hands) could be used as a deadly weapon. It's how the object is used and/or the force behind it that is important, not the weapon itself. Again, the question is whether deadly force was authorized.

Below is a longer version of another video I used in classes to illustrate this point. Now, it is also graphic, so I am issuing a warning. However, while a bit shocking, the subject in this case survived and was subsequently convicted on multiple charges including home invasion and armed robbery and sentenced to 21 years. The Use of Deadly Force was deemed justified in this instance and the Officer was cleared. Although the article accompanying the video will explain, the premise is that the subject, having already committed a veritable violent crime spree, stole a "locked" shotgun and ammo from a local store. An Officer sees him walking along a sidewalk toward a populated area. The Officer repeatedly tries to get him to surrender, but the subject only responds by unlocking and loading the weapon and shooting a round in the air. Now the subject has a live gun and again, proceeding into a more populated area. What to do? Would you have acted differently?


Deadly Force "Lite", Winging Subjects, and Warning Shots.

I was often asked or questioned in my presentations why the officer couldn't simply shoot the subject in the arm or leg or fire a warning shot in the air. As I would explain, there is no deadly force "lite". The Use of Deadly Force is authorized for one purpose: stop the threat. Not wound or warn. Television and movies often portray gunfights with officers having flawless aim. In reality, it is estimated by numerous studies over the years that even well-trained officers hit their intended target less than 50% of the time in a real gunfight and often much less than that. Why? Adrenalin, bad light, bad position, bystanders, subject moving and other factors all contribute. It's not like a calm day at the range shooting aiming at a stationary paper target. This is why officers are taught (and I was as well) to aim at the torso, the largest center mass, not the leg or arms, for the best chance of hitting the subject in the middle of a gunfight.

There are also misconceptions about being shot. On television, if the subject is hit once, the fight is usually over and the threat is contained. In reality, there's no guarantee that one shot would stop the subject (as it does on TV). I've shown videos in my presentations where subjects were shot in the leg and stomach, but were still quite dangerous. This is why the number of bullets alone is not definitive of "unreasonableness". SCOTUS has held that officers are allowed to keep shooting until the threat is actually contained or eliminated. 

Finally, as to warning shots, firing in the air, whether as a warning or in celebration, is never a safe practice. The ascending bullet has to descend and might injure or kill an innocent bystander on the way down. Think I'm kidding? I'm not.  See here and here. This is also why officers are careful about their surroundings, including crowds or populated buildings, when deciding whether to shoot. Bullets missing their target may unintentionally injure someone else.

Homicide is Not Murder

Just a quick note here as I've seen and heard these two terms used as synonyms and they are not. A homicide is most often used as a Manner of Death designation by a coroner or medical examiner. The other designations include Accident, Suicide, Natural Causes, and Unknown. Homicide simply means death by the hands of, or involving, another. It is not a legal determination of murder and does not mean that. So, just because the Manner of Death in a Use of Force case is deemed a Homicide, does NOT mean the Officer is automatically guilty of murder. It simply means the person died in part due to the actions of the Officer. As we have seen during this three part series, an investigation is necessary to determine if the Use of Force resulting in death was justified or not. Even where the Use of Force is deemed justified and the Officer faces no criminal charges, the Manner of Death designation will remain Homicide.

Final Thoughts

By now, since I've repeated it often during this three-part series, you know investigators, when considering a possible case under 18 USC 242, look at the Totality of Circumstances facing the Officer at the time of the incident (not hindsight) through statements and other evidence (including any video).The Totality of Circumstances includes any mistakes in perception by the officer. Those mistakes must also be reasonable to negate the "willful" element of 18 USC 242. The investigators then apply the current federal law to determine whether the Use of Force in a situation violates 18 USC 242 and warrants a charge.

My aim in this series was to try and clarify some confusions, misconceptions and myths about federal Use of Force cases by presenting the law and the investigative process. Certainly, there is much I did not cover. I just hope that now when you see one of these situations arise in the news, as unfortunately I'm sure there will be more, you might look at it with the eye of an investigator by waiting for the facts, asking the right questions, and applying the current law. The conclusion you come to of course, is still yours! Be safe and careful out there!


Although I worked for the FBI for many years, I'm now retired and no longer have any official or professional connection with the FBI. Nothing I feature on my website, blog, or other social media should in any way be taken as being from, or on behalf of, the FBI. I am solely responsible for the content in this and all my other blogs (unless somehow noted).

Also, while the information in my blogs is true and correct to the best of my knowledge, the information should not be relied upon alone. Readers are encouraged to explore further on their own and invited to (nicely) let me know if I have cited something incorrectly or made an inadvertent misstatement. If the law has changed or I got something wrong, I want to know!

Lastly, none of my blogs are intended as legal advice either in general or for any particular case. Please consult an attorney or other appropriate legal advisor if necessary.

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