Over the last few weeks, in the midst of our ongoing national discussion about law enforcement use of force, both the Supreme Court and the Massachusetts Supreme Judicial Court (“SJC”), in Kingsley v. Hendrickson and Commonwealth v. Asher, have joined the conversation with decisions reviewing use of force incidents. While these two recent cases are very different in that they address distinct areas of the law and distinct factual contexts for the use of force, they share at least one striking similarity: in both Kingsley and Asher, the high courts give no deference to claims by law enforcement officers that their use of force was reasonable. Instead –and in contrast to the many other decisions where courts have shown a troubling willingness to rationalize even the use of deadly force by law enforcement – these recent decisions suggest that in certain cases courts may now be willing to engage in a more careful review of law enforcement action.
In Kingsley v. Hendrickson, a decision issued Monday, June 22, 2015, the Supreme Court assessed what a pretrial detainee alleging that jail officers used excessive force against him would need to show to prove that the force used was unreasonable. Michael Kingsley was arrested in Wisconsin on a drug charge and detained in a county jail pre-trial. During his detention Kingsley refused multiple requests by officers to remove a piece of paper covering the light fixture above his bed. When officers eventually came to his cell to remove the paper, Kingsley refused to comply with their directions. He was removed from his cell, handcuffed, and placed face down on a bunk with his hands behind his back. An officer then placed his knee in Kingsley’s back. According to Kingsley, that officer and another officer slammed Kingsley’s head into the concrete bunk. (The officers denied this specific allegation.) All parties agree that Kingsley – who was still handcuffed with his face on a bunk – was then stunned with a taser to the back of the head for approximately 5 seconds.
Kingsley sued, claiming that the officers’ use of force violated his rights under the Due Process Clause of the Fourteenth Amendment. The question before the Supreme Court was what Kingsley needed to prove at trial to demonstrate excessive force. Did Kingsley need to show that the officers intended to violate his rights through their use of force (a subjective standard), or did he merely need to show that the force used against him was objectively unreasonable? The Supreme Court held that Kingsley only needed to meet an objective standard: he only needed to prove that the use of force was objectively unreasonable, regardless of what the officers actually intended. In other words, the Supreme Court refused to rely on an officer’s intent to determine whether the force used was reasonable. While the Supreme Court struck a careful tone in discussing the use of force, its decision was consistent with Justice Stewart’s admonition (highlighted in an amicus brief to the Court) against relying on the subjective intent of law enforcement officers: “[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97 (1964).
Just a few weeks earlier, on June 9, 2015, in Commonwealth v. Asher, the SJC upheld the criminal conviction of a police officer for his use of excessive force during a traffic stop. Asher’s victim was an individual who had been stopped for a traffic offense and had attempted to run away from the police. One officer grabbed the victim in a choke hold and bent him forward over a police cruiser with his head facing the windshield and his legs apart. Asher then went over to the victim and hit him around the head repeatedly with a flashlight; at least three strikes made contact with the victim’s head and upper body. When Asher realized that many of his blows were hitting the cruiser rather than the victim, Asher moved and delivered three hard blows with the flashlight to the victim’s upper leg, then hit him behind his left knee. The victim fell to the ground with officers on top of him, and Asher continued to hit him as he was lying still. The victim sustained fractures to his eye socket and nose, a choroidal rupture (an injury caused by blunt force trauma to the head and resulting in loss of vision), and an ongoing loss of vision in one eye. A jury found Asher guilty of assault and battery with a dangerous weapon and assault and battery.
As the SJC noted, “this case was fundamentally about the reasonableness of a police officer’s use of force against a civilian.” Because of the way Asher had presented his defense, the trial judge did not give the jury specific instructions about Asher’s right as a police officer to use force. The SJC explained that this was an error, noting that “the judge’s [jury] instructions should have acknowledged the defendant’s status and explained that, as a police officer, the defendant would have been justified in using force in connection with his official duties, including effecting an arrest, as long as such force was necessary and reasonable.” However, the SJC quickly concluded that this error was not prejudicial, in part because the use of force in the case was so clearly excessive.
While an appellate court must try to see the facts in the same light as the jury – in Asher, that means looking at the facts that support the jury’s decision to convict him – the SJC’s decision is still notable for the extent to which the SJC pointed out problems with Asher’s testimony and that of his fellow officers. For instance, the SJC did not defer to Asher’s rationale for the use of force, questioning both his factual assertions and his logic. Asher stated that he believed the victim was trying to grab an officer’s gun and that he therefore acted reasonably in response to that belief. The SJC noted that “based on the officers’ positioning around the victim, it was implausible if not impossible that the victim could have reached the gun” (and with obvious skepticism, highlighted other implausibilities and inconsistencies in the various police officers’ testimony). The court then explained that even if Asher were justified by a belief that the victim was reaching for a gun, any such “danger would have completely dissipated by the time the victim was on the ground; yet even then, the defendant continued to strike the victim.”
While it is too early to tell whether our national debate over police misconduct and use of force will propel courts to look more carefully at other claims of law enforcement misconduct, these recent decisions suggest an ability to review objectively (Kingsley) or even skeptically (Asher) the reasonableness of law enforcement actions. As such, these cases indicate that courts may be willing and able to play a meaningful role in holding law enforcement officers accountable for their actions.