7-1 Policy Analysis Memorandum: Compromise and Avoiding Conflict: Policy-Making Does Not Occur in a Vacuum

CJ 520 Sample Policy Memorandum

Note: The headings below are ones typically seen in a legal policy memorandum. Keep in mind,

however, that different professions—and companies within these professions—may use different

headings or formats for their memorandums.

MEMORANDUM

TO: District Judge of the Third Circuit

FROM: Assistant Prosecutor

RE: Graham v. Connor Case – Judging Use of Force Issues

DATE: January 1, 2016

Issue Presented

When one of our police officers is involved in a use of force incident, what perspective should be

used in judging the reasonableness of that officer’s use of force?

Short Answer

When judging reasonableness, in the application of force, the perspective to be used is that of a

reasonable objective officer standing in the shoes of the officer at the time the application of

force is used. That officer is additionally briefed to disregard 20/20 hindsight.

Statement of Facts

The case of Graham v. Connor, 490 U.S. 386 (1989), is the applicable precedent and rule of law

applicable to these situations. In Graham, supra, an officer made a traffic stop on an individual

who was diabetic. As a result of low sugar, Graham was attempting to buy orange juice. He was

driven to a convenience store by Berry, pulling in expeditiously. Graham ran into the

convenience store and rapidly exited after seeing the line was too long. Berry and Graham then

swiftly pulled out of the convenience store parking lot. Based on the aforementioned events,

Officer Connor, observed this behavior and was troubled by the situation. Connor believed some

type of crime or a robbery may have occurred in the convenience store. The officer conducted an

investigative stop to determine whether or not criminal activity had taken place. Graham was

incoherent and refused to comply with officer requests, running around the vehicle as a result of

low insulin. Due to his behavior, Graham was subsequently handcuffed and detained while

officers were conducting a preliminary investigation. The officers at the time had no idea that

Graham was diabetic. Graham was not charged with a crime but sustained injuries while being

handcuffed. Graham brought suit against the officers for a violation of his civil rights under 42

U.S.C § 1983, for excessive use of force and violation of his Fourth Amendment right to be free

from unreasonable search and seizure. Graham contended that the officers disregarded the fact

that he was diabetic. Id at 392-394.

Discussion

As a result of recent use of force issues across the country, there has been intense media scrutiny

placed on law enforcement. As grand juries have convened, in both Ferguson and New York City,

there has been unparalleled attention and protests as to why these officers have not been indicted.

This is a result of the public having a general misunderstanding and misconception of how the

law is applied. It is paramount that the general public understand the context when judging the

reasonableness of incidents involving the use of force. A complete and thorough understanding

of the law is critical when analyzing these incidents. Grand juries are instructed on the law when

reaching their conclusions. This, in fact, is the dispositive reason as to why these grand juries

have refused to indict these officers. When judging reasonableness, in the application of force,

grand juries are advised that they must stand in the shoes of the officer at the time the application

of force is used. They are additionally briefed to disregard 20/20 hindsight based on the

aforementioned Graham standard. That judgment should be based on the “objective

reasonableness” standard outlined in Graham. Police officers often have a fraction of a second to

make a life and death decision. After the fact, that decision, may in fact, be wrong. However, the

incident cannot be judged with hindsight. Under Graham, we must stand in the shoes of the

officer at the time the force is being applied to determine its reasonableness. The realization that

a gun is in fact a toy after the application of deadly force is a perfect illustration of this point.

However, using the Graham analysis, was the officers’ application of deadly force “objectively

reasonable?”

Conclusion

In reaching its conclusion, the United States Supreme Court ruled in favor of the officers stating

in a pertinent part:

All claims that law enforcement officials have used excessive force—deadly or not—in

the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly

analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than

under a substantive due process standard. Graham at 392-399.

This “objective reasonableness” must be applied while “standing in the shoes of the officer” at

the time the incident takes place. The Supreme Court recognized that officers have to make split-

second decisions in the course of executing their duties. The benefit of 20/20 hindsight must be

disregarded when judging “objective reasonableness”. Id at 399. Obviously, had the officers

known that Graham was diabetic, they would have taken different action. However, this

information was revealed after the incident took place.

Recommendations

The general public has a general misunderstanding and misconception of how the law is applied

in use of force situations. It is paramount that the general public understand the context, when

judging the reasonableness of incidents involving the use of force, before judging the incident. A

complete and thorough understanding of the law is critical when analyzing these incidents. The

understanding of this approach is the dispositive reason as to why grand juries have refused to

indict many officers. It is imperative that our agency deals with this negative public perception

with an informational campaign on the Graham standard. This information should be

disseminated proactively before another incident becomes the lightning rod of controversy and

reactionary public perception. It is also important that our officers be trained in the proper use of

force, the use of force continuum, and from what perspective their actions are going to be

judged. If these strategies are followed, there should be better public awareness of the situation,

better trained officers, and a thoughtful/mindful approach to the application of force.

Reference Graham v. Connor, 490 U.S. 386 (1989)