Law prof: Excessive use of force cases made more difficult by Supreme Court ruling

By Jamie Kelly | Jul 9, 2016

NEW ORLEANS—The father of a man shot and killed by St. Tammany Parish deputies in October has sued the sheriff’s office, claiming excessive force, but a  2014 U.S. Supreme Court decision might make his case difficult to win. 

The high court's ruling in Plumhoff v. Rickard allows officers to use any force necessary when authorized to protect themselves or arrest a suspect, according to Bob Herman, who teaches law at the Washington University School of Law and the St. Louis University School of Law.

Herman said that the U.S. Constitution doesn’t offer a distinction between kinds of force that police are allowed to use.

“Once police are authorized to use force to subdue someone or to protect themselves, they're authorized to use any force, up to and including deadly force,” Herman told the Louisiana Record. “Now, of course, they've got to be authorized to protect themselves in the situation or to restrain or arrest the person. There's a lot of cases that define when force can be used, but once you cross the line where force is authorized, there is no constitutional requirement that there be a gradation of use of force.”

Late last month, Richard Greenwood, the father of Darien Greenwood, who was shot and killed by St. Tammany Parish deputies in October, brought a federal lawsuit claiming the deputies had used excessive force when trying to arrest Darien Greenwood. Greenwood was a suspect in a burglary, and police said he threatened a deputy with a knife and then stabbed a police K-9 officer that was trying to subdue him. He was shot seven times and pronounced dead at a local hospital.

The suit claims that deputies violated Darien Greenwood’s constitutional and statutory rights by “(u)sing brutal and lethal force and restraint in a situation under circumstances not requiring such force and restraint,” among other claims.

Supreme Court rulings have allowed much leeway in the area of use of force, though, Herman said.

“If a police officer feels their life is in danger, whether it's mortal danger or danger of injury, they're entitled to use force all the way up to and including deadly force,” he said. “There's no requirement they try this first and then that.”

He pointed to the Plumhoff v. Rickard ruling, where the majority held that police were justified in killing a fleeing motorist; and that if police were right to use force to stop someone to protect themselves or others, then they were justified in using as much force as necessary to accomplish that goal.

In that case, the justices referred to the Fourth Amendment and ruled that the standard for use of force is what a reasonable officer would do given the totality of the circumstances. Herman said that although legislators at the state or federal level could require police to go from one level of force to another in a certain order, that might not work.

“I'm not sure how much good it would do in the big picture, because decisions like this have to be made in terms of what a reasonable officer at the time would do, rather than second-guessing,” he said.

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