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By: Kevin R. Stone and Sara E. Brochstein
I’m bad at baseball. When I step in the batter’s box, I might as well have two strikes against me before the pitcher unleashes his first fastball. For me, it’s no big deal; I’m destined to strike out anyway. The Sixth Circuit, however, recognizes that’s no way to treat law enforcement officers faced with the difficult choice to use force in response to medical emergencies.
In determining whether a Fourth Amendment violation has occurred in excessive force cases, the evidence must demonstrate that the officer’s actions were “objectively reasonable” under the totality of the circumstances. The Supreme Court has provided three over-arching factors to consider in this analysis: (1) the severity of the crime; (2) whether the suspect actively resisted or evaded arrest; and (3) whether the suspect posed an immediate threat. (The Graham factors.)
When responding to a medical emergency, however, two of those factors usually don’t exist: no crime (strike one) and, by extension, no resisting or evading arrest (strike two). Thus, the officer’s choice to use force may rest on a single factor, which the officer may have to assess and act on in a split second. Acknowledging that the Graham factors are not exhaustive and that medical emergencies create unique challenges for law enforcement officers, the Sixth Circuit, in Hill v. Miracle, established a list of additional non-exhaustive factors to consider when determining whether an officer’s use of force is objectively reasonable in such situations:
(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?
(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?
(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?
The court explains: “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity. These questions and answers serve as a guide to assist the court in resolving the ultimate issue of whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”
The Sixth Circuit’s opinion drives home the principle that rote application of the Graham factors may cause an unfair strike out. Objective reasonableness requires an examination of the totality of the circumstances and deserves a careful, fact-specific assessment in each case. Whether other circuits will hit home runs and also apply these new factors remains to be seen.
If you have any questions or would like more information, please contact Kevin R. Stone at [email protected] or Sara E. Brochstein at [email protected].