No, Shooting a Violently Resisting Suspect is NOT a Violation of Due Process

I seriously cannot believe we have to have this discussion.

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Image courtesy of startribune.com

 

One of the commonly repeated mantras by the Black (Criminal) Lives Matter movement is that shooting an actively and violently resisting criminal is a violation of due process.

First, let’s pull up the definition of due process, according to the Merriam-Webster Dictionary:

  • law : the official and proper way of doing things in a legal case : the rule that a legal case must be done in a way that protects the rights of all the people involved

Now, let’s look up the Constitutional definition of due process, according to the Cornell University Law School:

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures.

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Image courtesy of teapartyorg.ning.com

So, we can establish now that due process means that law enforcement and prosecutors must follow Constitutionally established guidelines before they deprive somebody of their life, their freedom, or their property.

So, does killing an actively resisting violent suspect qualify as a violation of due process?

In a single word, NO.

Getting right to it: in Graham v. Connor (1989), the Supreme Court ruled that officers effecting the arrest of Dethorne Graham had not violated his 4th Amendment due process rights.

The key points of Graham:

Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

So, out the gate, we’ve effectively disproven the claim that to use lethal force on a suspect who poses a threat to officers or members of the general public is NOT a violation of due process. We have simultaneously proven that lethal force is an appropriate level of force for peace officers in certain circumstances, and that police officers have the right to defend themselves against violent suspects.

Chalk that one up to another asinine BCLM notion.

But, I’m not for an easy win. Let’s analyze another landmark decision, this one of Plakas v. Drinski (1993), decided by the US 7th District Court of Appeals, Northern District of Indiana, Hammond Division.

The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. A volunteer fireman found him walking along the road and convinced him to return to the scene of the crash to be evaluated medically. He complied and returned, at which point a responding LEO noticed the strong odor of alcohol on Mr. Plakas’s breath. This probable cause was enough for the LEO on-scene to detain Mr. Plakas for a breathalyzer back at the station.

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Image courtesy of q13.fox.com

On the way back to the station, Mr. Plakas escaped from the deputy’s vehicle and ran down a road to his fiancée’s parents’ house. His fiancée’s father attempted to mediate between the police officers and Mr. Plakas. During this time, Mr. Plakas had repositioned his handcuffs from behind his back to in front of him. When one of the volunteer firemen and a police officer entered the house, Mr. Plakas became visibly agitated, grabbed a fireplace poker with a hook, and swung it at the officer, injuring his hand. He then chased the volunteer firefighter through the house and into a garage. Deputy Drinski and other LEOs entered the home and confronted Mr. Plakas, and his would-be future father-in-law attempted to calm Mr. Plakas down. Instead, Mr. Plakas fled with the fireplace poker into a  snowfield, with Deputy Drinski and other LEOs in pursuit.

Mr. Plakas ran to a part of the snowfield where thick brush was to his back. Deputy Drinski and other LEOs repeatedly implored Mr. Plakas to drop the weapon. Mr. Plakas repeatedly said that his life was not worth living and that he would either kill the officers or they would kill him. Eventually, Mr. Plakas rushed directly at Deputy Drinski, and in response, Drinski fired a single shot at center-mass that killed Mr. Plakas.

The Plakas estate argued that Deputy Drinski used excessive force. However, the 7th Circuit Court of Appeals ruled:

The undisputed facts in this case are that Plakas was armed with a two to three foot steel rod with a hook on the end of it. He had already assaulted one officer with this weapon. He evaded arrest, fled from the police, and claimed that he would not be taken alive. After speaking to Plakas for almost thirty minutes, Drinski and Perras were unable to calm Plakas or get him to surrender. He claimed that he would kill them both or that they would have to kill him. Finally, Plakas lunged at Drinski with the fireplace poker in front of him. As a matter of law, there can be no other conclusion but that Plakas threatened Drinski with a weapon intending to inflict serious physical harm. Garner, 471 U.S. at 11-12, 105 S.Ct. at 1701-02. Under these circumstances, this Court holds that a reasonable jury could only conclude that Drinski had probable cause to believe that Plakas posed a threat of serious physical harm to himself and/or to others. Ford, 855 F.2d at 1276. Thus, Drinski’s split-second decision to use deadly force to protect himself was objectively reasonable as a matter of law, and under these circumstances there can be no violation of the Fourth or Fourteenth Amendments.

This Court rejects the arguments and intimations made by Plaintiff that Drinski was under a legal obligation to either let Plakas escape, or to effect his arrest by less provocative means. That Trooper Perras had with him a canister of teargas and that a canine unit could have been summoned within thirty minutes, are immaterial to the inquiry of whether the force used to seize Plakas was reasonable. Our jurisprudence does not require this Court to inquire what other means are available to effectuate this seizure. The relevant inquiry is only whether at the time deadly force is used, whether the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.

If that doesn’t spell it out clearly, I don’t know what will.

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The use of force continuum. Learn it if you want to join the discussion. (Image courtesy of gunfighter1.typepad.com)

Given that Black (Criminal) Lives Matter engages in pathological fraudulence and cares nothing for researching case law or the use of force continuum, I doubt this will stop any of them from continuing to perpetuate the falsehood that utilizing lethal force on a suspect that poses a threat to law enforcement officers or those around them is somehow a violation of due process.

However, this will hopefully clearly and factually sway objective observers on the fence.

Featured image courtesy of YouTube.

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3 thoughts on “No, Shooting a Violently Resisting Suspect is NOT a Violation of Due Process

  1. There is a lot of good information in this article. I had forgotten about Plakas v. Drinksi. However, I just attended my agency’s refresher course at FLETC, and they have gotten away from teaching that particular Use of Force model. Now we’re using a Range of Reasonableness wherein an officer’s response should fall somewhere between hesitation and aggressive. They also recognize that there is no perfect answer.

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  2. This has a huge typo in it that screws up what you intend: “So, out the gate, we’ve effectively disproven the claim that to use lethal force on a suspect who poses a threat to officers or members of the general public is NOT a violation of due process. ” What you mean is that we’s PROVEN …

    Otherwise, good, and simple enough for the average person to grasp, if they want to.

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  3. I really like this. Simple, straightforward, and to the point. Well done.

    You do have a pretty big typo in here. “So, out the gate, we’ve effectively disproven the claim that to use lethal force on a suspect who poses a threat to officers or members of the general public is NOT a violation of due process.” I am 99% sure that you meant to say that you have disproven the claim that such IS a violation of due process – which you, and well.
    Doug

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