Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 50

The standard for analyzing the use of force under state law is distinct from the constitutional standard, although both are properly understood as legal standards. Without legal training or an unusually sophisticated understanding of the structures of American government, the distinction between state law and constitutional law can be difficult to grasp. Indeed, there is substantial confusion even among lawyers about the relationship between the constitutionality and the legality of a use of force. Strictly speaking, the constitutionality of an officer’s use of force can be entirely distinct from the question of whether the officer violated state law. As Flanders and Welling put it, “The standards for criminal liability in a state criminal prosecution do not have to mimic the standards for a Constitutional tort.”20

The relationship between constitutional law and state law is something like the relationship between the color of a car and the vehicle’s speed. A car can be both red and fast, but a car can be red without being fast or be fast without being red. So it is with constitutional and state law: an officer’s actions can be both unconstitutional and a violation of state law, but it is also true that an officer’s actions can be unconstitutional without violating state law or be constitutional and still violate state law.

An officer’s actions can be unconstitutional without violating state law because although the Constitution limits government authority, it does not require states to impose civil liability or criminal punishment on officials who exceed those limits. That is, states cannot authorize constitutional violations, but they are not required to civilly or criminally punish those violations, either.

An officer’s actions can be constitutional and still run afoul of state law. The Fourth Amendment protects civilians’ right to be free of unreasonable seizures, not officers’ right to use force, which means that the states are free to pass laws that are more protective of individual rights than the Constitution itself by restricting the use of force. The California Supreme Court, for example, held that “state negligence law . . . is broader than federal Fourth Amendment law.”21 Thus, a use of force that may be objectively reasonable as a matter of constitutional law may still be negligent as a matter of state law.

Many states keep state law distinct from, and formally unaffected by, constitutional law. Indeed, many states do not even reference Fourth Amendment jurisprudence when applying or interpreting state law. Some states, however, have on at least one occasion implicitly or explicitly adopted part or all of the constitutional framework into state law. The following paragraphs identify, in both the less-lethal and lethal force contexts, cases in which state courts have incorporated or referenced constitutional law into the interpretation or application of state law. In our discussion, we are not concerned with cases involving the application of both constitutional law and state law, such as those in which the plaintiff brings both a § 1983 claim alleging a Fourth Amendment violation and, distinctly, a state tort claim. Further, we do not mean to suggest that a court that has incorporated constitutional law, at least in part and at some point, into state law will always do so. It is beyond the scope of this book to chart a definitive path of the evolution of state law in all fifty states. Here, we aim merely to provide examples of incorporation and reference. Finally, we note that this analysis is complicated by the fact that most states simply do not have very many, if any, judicial opinions interpreting state statutory or common law in the context of police uses of force. Indeed, in a handful of states, we were completely unable to find any judicial opinions applying or interpreting state law in the police use-of-force context.

In the context of less-lethal force, judicial decisions have incorporated at least some portion of the Graham v. Connor framework into state law in twenty-seven states: Alaska,22 Arizona,23 Arkansas,24 California (in reference to an earlier version of state law),25 Colorado,26 Connecticut,27 Delaware,28 Florida,29 Georgia,30 Illinois,31 Indiana,32 Iowa,33 Louisiana,34 Maine,35 Maryland,36 Michigan,37 Nebraska,38 Nevada,39 New Mexico,40 Ohio,41 Oklahoma,42 Rhode Island,43 South Carolina,44 Vermont,45 Virginia,46 West Virginia,47 and Wyoming.48 Maryland offers perhaps the clearest example of this approach. In a state law tort case, the state Supreme Court described Graham as “the touchstone” for analyzing excessive force claims. It wrote that the principle of objective reasonableness, “announced in the context of a § 1983 claim for the violation of Federal Constitutional rights, is the appropriate one to apply as well to petitioner’s claim under Article 26 of the Maryland Declaration of Rights and for the common law claims of battery and gross negligence.”49 Importantly, though, not every state that incorporates some aspect of constitutional law into state law goes so far as to incorporate every aspect of constitutional law into state law.

Four states—Idaho,50 Kentucky,51 Mississippi,52 and New York53—have referenced Graham v. Connor without incorporating it, or at least without incorporating any aspect of its analytical framework into state law. Mississippi, for example, quotes Graham for the idea that “‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ amounts to a constitutional deprivation,”54 but it does not otherwise adopt Fourth Amendment jurisprudence as a matter of state law. New York provides less complimentary treatment, discussing and ultimately rejecting Graham v. Connor as an appropriate guideline for the state law framework.55

The remaining nineteen states—Alabama, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Minnesota, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Washington, and Wisconsin—do not have any judicial opinions that reference or incorporate Graham v. Connor into the state law regulating the use of less-lethal force by police. Some of those states do have judicial opinions that separately address Fourth Amendment and state law claims, but they do not conflate the two standards or use the constitutional standard to interpret or apply state law.

A different picture emerges when it comes to the state law regulation of deadly force. Ten states have explicitly incorporated some aspect of Tennessee v. Garner or Scott v. Harris into state law: Colorado,56 Georgia,57 Iowa,58 Michigan,59 Nevada,60 New Mexico,61 New York,62 Ohio,63 Rhode Island,64 and Wyoming.65 The purpose for and extent to which states incorporate constitutional law varies. Michigan concluded that the Supreme Court had held unconstitutional the state’s fleeing-felon rule,66 for example, while Nevada followed a slightly different tack by adopting the Supreme Court’s rejection of the fleeing-felon rule.67

Nine other states have referenced constitutional law in a case applying state law: Arizona,68 California (in reference to an earlier version of state law),69 Delaware,70 Florida,71 Kentucky,72 Maryland,73 Minnesota,74 South Carolina,75 and West Virginia.76 A number of the states that have referenced Fourth Amendment jurisprudence have not done so in the context of evaluating a use of deadly force, though. Instead, their focus in on a distinct aspect of Garner or Harris. The Delaware Supreme Court, for example, discussed the Garner Court’s conclusion that burglary was not a serious offense, ultimately disagreeing.77 An Arizona appellate court relied on Tennessee v. Garner (in a footnote) for a different reason. The plaintiff in that case had argued that the officer could not invoke a state statute authorizing the use of force to effectuate an arrest because the officer was not “effectuating an arrest” at the time. Although concluding that the issue was not properly raised on appeal, the court noted that Garner had identified that the use of deadly force was a seizure, and therefore asserted that an officer who had used deadly force was necessarily seeking to effectuate an arrest.78

Thirty-two states, a significant majority, have simply not referenced constitutional law when interpreting or applying state law in the context of deadly force: Alabama, Alaska, Arkansas, Connecticut, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin.