Appeals Court Tells Seattle Cops New Use Of Force Policy Doesn't Violate Their 2nd Amendment Rights

from the stupid-is-as-stupid-sues dept

When the Department of Justice handed down remedies for the Seattle Police Department's excessive use of excessive force, it told officers they would need to dial back their penchant for deadliness. Just prior to the DOJ's civil rights investigation, the PD was responsible for 20% of the city's homicides. The DOJ recommended officers work on their de-escalation tactics, as well as partake in training meant to steer officers away from viewing anything strange (medical conditions, mental health issues, drug impairment, behavioral crises) as something to be shot at or beaten.

Seattle PD officials adopted the DOJ recommendations and altered the department's use of force policies. Rather than comply or quit, several police officers decided to file a federal lawsuit against the DOJ. The officers asserted a nonexistent right (the "right" to make it home alive) and hammered an existing right (the 2nd Amendment) to it in hopes of persuading a federal court that using less force less often somehow violated their right to keep and bear arms.

The crowdfunded lawsuit didn't get very far. The district court pointed out the 2nd Amendment does not create a "right" to defend yourself, much less attempt to guarantee officers' personal safety. Gun ownership is regulated, not a free pass for cops to violate PD use of force policies as they see fit. It also tossed a variety of other rights violations claims, noting these were even more tenuously connected to the officers' protest of the new use of force policy than the 2nd Amendment claims.

The officers appealed this decision because of course they did. Despite raising less than $4,000 of their $100,000 legal defense fund goal, the officers apparently had enough funding to lose twice. The Ninth Circuit Court of Appeals has rejected [PDF] the officers' ridiculous rights violation assertions. (h/t Kevin Gosztola)

As the court points out, the use of force policy these officers felt needed to be addressed with a civil rights lawsuit does zero damage to the officers' civil rights.

The UF [Use of Force] Policy explicitly recognizes that Appellants may use their department-issued firearms in self-defense in an encounter with a suspect—including the use of deadly force with a firearm. The UF Policy states that “[d]eadly force may only be used in circumstances where threat of death or serious physical injury to the officer or others is imminent[,]” and recognizes that “sometimes the use-of-force is unavoidable[.]” As a result, the UF Policy does not impose a substantial burden on Appellants’ right to use a firearm for the purpose of lawful self-defense.

The court goes on to note the restrictions placed on force deployment do not undermine officers' ability to defend themselves if needed.

The UF Policy requires Appellants to employ de-escalation techniques only “[w]hen safe under the totality of the circumstances and time and circumstances permit.” Thus, the UF Policy expressly contemplates that de-escalation techniques will not be feasible in every situation, and even states that “sometimes, the use of force is unavoidable.” The UF Policy also provides that Appellants may use deadly force where an objectively reasonable officer would conclude that the “threat of death or serious physical injury to the officer or others is imminent.” These provisions ensure that Appellants may use their department-issued firearms to defend themselves and the public.

The court also reminds officers use of force policies are written with more than police officers in mind. Their rights are not more important than the rights of the people they serve.

The UF Policy also requires that Appellants use “[d]e-escalation tactics and techniques . . . when safe and without compromising law enforcement priorities,” and states that Appellants “shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on” a variety of factors. Those provisions advance the City of Seattle’s important government interest of ensuring the safety of the public by mandating de-escalation techniques and reducing the likelihood that a firearm will be drawn or used where such force is not “objectively reasonable,” “proportional to the threat or urgency of the situation,” or “necessary to achieve a law-enforcement objective.”

Also struck down is the officers' attempt to restructure the 2nd Amendment to cover their use of deadly force while on the clock. As the court notes, the rights are limited to "defending hearth and home." Nowhere is it written police officers have a right to make it home safely, and there's nothing in the Constitution that allows public employees to unjustifiably take the lives of others in order to ensure officers suffer no harm. That ends this particularly misguided attempt to turn the Constitution into a free pass for excessive force… unless there's still enough left of the $3,730 to crank out a Supreme Court petition.

The 123 suing officers represent about a tenth of the Seattle PD's police force. Why this percentage thought the new policy was worth suing over is unclear. The lawsuit was so misguided the Seattle police union didn't offer its endorsement or support, and it's in the business of suing over anything that threatens officer autonomy. The only thing this lawsuit has done is provided a list of 123 officers who would apparently prefer to shoot their way out of any situation, whether or not the use of force is justified.


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  • icon
    That Anonymous Coward (profile), 2 Oct 2017 @ 4:24pm

    If only these officers were as worried about the right of the people they encounter to make it home alive, & not have to worry that "an objectively reasonable officer" thinks they were capable of powering up like a cartoon character.

    reply to this | link to this | view in chronology ]

  • icon
    K`Tetch (profile), 2 Oct 2017 @ 4:25pm

    "Nowhere is it written police officers have a right to make it home safely"

    WRONG.

    It's written clearly in the talking points groups like the NRA and Omerta-promoting groups like the PBA hand to politicians with their bribes (aka 'campaign donations')

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Oct 2017 @ 5:19pm

      Re:

      Maybe so, but nowhere is it written in the constitution that those are rights.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Oct 2017 @ 5:51pm

        Re: Re:

        well, it is kinda implied.

        The only difference between a cop and a citizen is that a cop has additional "powers", not additional rights. The problem here is that cops are obviously advancing the notion that they have more rights or some such bullshit.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Oct 2017 @ 9:59am

          Re: Re: Re:

          kinda implied that everyone has a right to make it home safely
          - not just people with; money, authority, connections ...

          reply to this | link to this | view in chronology ]

      • icon
        K`Tetch (profile), 2 Oct 2017 @ 7:36pm

        Re: Re:

        That was kinda my point. I forgot the "/s"

        Politicians treat 'the right of cops to make it home at night' as the be-all and end-all, forgetting that in granting this fictional right created by lobbyist groups, it gives them near carte blanche to ensure that other people do not make it home safe at night any time they get a little scared.

        reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 2 Oct 2017 @ 4:27pm

    List of 123 officers suing

    These 123 plaintiffs are officers so entitled they need to be fired...before the city is sued with an adverse inference about whether they are reasonable officers reasonably using force. Hello Snowflakes!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Oct 2017 @ 4:32pm

    Crystal clear actually

    Why this percentage thought the new policy was worth suing over is unclear

    Seems pretty clear to me, they were/are likely trigger happy individuals who have gotten used to their 'shoot first, claim 'self-defense' later' way of working and didn't like the idea that killing anything that might be a threat might not be the best way to go about their jobs.

    Or to put it another way, they sued because they are the sort of individuals who shouldn't be trusted with so much as a potato gun, and who were upset that someone dared suggest they show some restraint.

    reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 2 Oct 2017 @ 5:36pm

      As the police unions say: It's just a few bad apples.

      Well, OK... now we all have a list to go by.

      reply to this | link to this | view in chronology ]

      • identicon
        Devils Avocado, 2 Oct 2017 @ 9:39pm

        Re: As the police unions say: It's just a few bad apples.

        *now we all have a list to go by.*

        But do we? We have a list of cops who let the court decide rather than take it into their own hands...

        ...I'm so confused. Should I support good behaviour even though the motive is bad, or bad behaviour even when they think their motive is good?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Oct 2017 @ 1:08pm

      Re: Crystal clear actually

      Clear only if you are totally anti-cop.

      You are seven times more likely to be murdered …
      15 times more likely to be killed in a traffic accident …
      42 times more likely to be raped …
      … than to have a police officer use excessive force on you.

      990 people were shot by police in 2015.  Here’s the demographic breakdown of those “victims”:
      White — 494, 50%
      Black — 258, 26%
      Hispanic – 172, 17%
      Other — 66, 7%

      Black Americans make up about 13% of the population.
      But according to the FBI, they account for about 50% of murders, and about 38% of all violent crime overall.
      Chicago gives us some great examples.  And let’s not forget the insanely strict gun laws there, by the way.  For example, during the first eight months of 2016 (the most recent period for which the numbers are available), 2,818 people were shot — only 12 by police. (That’s one-half of 1 percent).

      In cities with large black populations, homicide rates have skyrocketed during that same period:
      In Washington D.C., homicides are up 54%. In Cleveland, up 90%. Overall, homicide is up 17%.
      The U.S. Department of Justice says that Black people make up 15% of the population in the 75 largest counties in the United States, yet account for 62% of all robberies, 57% of murders, 45% of all assaults.

      Is this racism or just an inconvenient truth?

      reply to this | link to this | view in chronology ]

      • identicon
        michael, 3 Oct 2017 @ 3:29pm

        Re: Re: Crystal clear actually

        Why are you making this a racial issue?

        Also, cops aren't even in the top 10 most life-threatening jobs in the US. Why are they the only ones you want to allow to kill people with impunity?

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 3 Oct 2017 @ 4:24pm

        Re: Re: Crystal clear actually

        Ah the good old, 'If you're critical of police you must be anti-police', because that one never gets old or is blatantly obvious, mixed in with a 'Look, a distraction' attempt to throw out a red herring involving race.

        As long as we're throwing out numbers, perhaps you missed this one, which noted that one in five of the homicides in the city in question were committed by police.

        Just prior to the DOJ's civil rights investigation, the PD was responsible for 20% of the city's homicides.

        123 cops were involved in not one but two lawsuits against new rules regarding use of force, rules which said they should spend more time focused on de-escalation, using less force, and who argued that the second amendment included the 'right' to use deadly force any time they feel they might be threatened so they can make it back home.

        Someone doesn't sue in an attempt to shut down rules calling for less force unless they want to employ more force, and they don't sue to shut down rules stating that there actually needs to be a threat before employing deadly force unless they plan on and/or are used to using it any time they get jumpy or someone doesn't kiss the asphalt quick enough for their tastes.

        reply to this | link to this | view in chronology ]

  • identicon
    Lord of the Files, 2 Oct 2017 @ 4:39pm

    Double negative?

    "in hopes of persuading a federal court that using less force less often somehow violated their right to keep and bear arms."

    That should read 'using less force MORE often' should it not? We don't want them to use less force less often, lol.

    reply to this | link to this | view in chronology ]

  • icon
    afn29129 (profile), 2 Oct 2017 @ 4:58pm

    Training.....

    " The DOJ recommended officers work on their de-escalation tactics, as well as partake in training meant to steer officers away from viewing anything strange (medical conditions, mental health issues, drug impairment, behavioral crises) as something to be shot at or beaten." Sorry but you can't fix a personality problem (fundamental character flaw) by throwing 'training' at it. There are just some people who should never ever have the sort of power a police officer has and their attitude can't be fixed with some training. Those who sued... well they probably be the first to be removed from police work.

    reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 2 Oct 2017 @ 6:48pm

    123/10% is a sad, sad statistic.

    It takes a special kind of stupid to try not once, but twice to prove have a right to be that big of a piece of garbage. These poor excuses for human beings need to be stripped of their badges for attitudes unbecoming of a public servant.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 2 Oct 2017 @ 9:01pm

    The right to transgress with a gun

    In March of this year, I wrote a thing about this peculiarity of US gun culture. TLDR some people on both sides of the gun rights / gun control debate seem to believe that the second amendment right to own a gun** (or even carry one around) confers also the right to use that gun to kill, which is (to me) obviously not the case.

    This is the first time that I've seen this notion taken to court with the effort to actually infer gun use.

    ** Really, the right to bear arms is the right to own and carry a state-of-the-art military-grade weapon, not specifically a firearm.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Oct 2017 @ 10:09pm

      Re: The right to transgress with a gun

      "** Really, the right to bear arms is the right to own and carry a state-of-the-art military-grade weapon, not specifically a firearm."

      Not exactly, it is a right to bear arms. This means everything that is an armament. A sword, knife, pistol, rifle, machine gun, tomahawk missile, a nuke, body armor, or a full suit of armor if so inclined. Yes, state-of-the-art military-grade weapon is a part of that description.

      The 2nd Amendment is specific towards a singular purpose. The right for the citizens to carry weapons at all times so that they may form a militia and mount a defense against all threats, be they foreign or domestic at any time. People are no longer willing to participate in the defense of their nation, and therefor, deserve to lose it. When you lay down your weapons and remove your defenses and give them to another to serve in your place, that another is your master now for your life rests in their hands.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 3 Oct 2017 @ 12:07am

        The right to bear anything...

        I was referring to military-grade weapons as to say at least as good as the state's got. But yeah, there are not supposed to be separate restrictions for law enforcement and state armed forces in contrast to the civilian militia.

        Even nukes, though nuclear weapons are pretty useless unless you specifically want to kill everyone in a district and turn it into a wasteland. And it's really hard to justify doing that for any reason.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Oct 2017 @ 9:31am

          Re: The right to bear anything...

          The 2nd Amendment does not allow US citizens the right to own military grade weapons.

          No amount of propaganda makes this true.

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 3 Oct 2017 @ 12:05pm

            Military Grade Weapons

            The Second Amendment is interpreted currently so as to let the state regulate civilian access, yes.

            But the threat of the state becoming more powerful than the public and being capable of oppressing it by force (as we see commonly in poor communities) was absolutely a concern when the Constitution was being written, and the Second Amendment was intended as a measure to help prevent it.

            This is to say that civilians should have access to everything that state agents have, and that anything that is proscribed from civilian control should also be proscribed from state control.

            We cannot trust agents of the state, whether the military or officers of law enforcement or state officials to use their advantages with restraint. Otherwise we get the multi-caste system we have today were officers are above the law, and the impoverished are denied due process. The nation is falling apart, and the dissolution of our rights is a symptom of that process.

            You might argue that we cannot trust common civilians with high-powered weapons. And that does present a dilemma, since we can't trust anyone else with them either. Until we find a way for the people to govern themselves despite themselves, we may just be too feral a species for advanced tech.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Oct 2017 @ 9:39am

      Re: The right to transgress with a gun

      Quoting the linked piece,

      In the 70s and 80s gun ownership implied gun responsibility.

      Where were you in the '80s? "Gun-related crime peaked in the late 1980's and early 1990's".

      ** Really, the right to bear arms is the right to own and carry a state-of-the-art military-grade weapon, not specifically a firearm.

      I don't know about "carry". At the time the bill of rights was written "arms" would have included cannons and warships. But "Gun ownership is regulated" according to this article, and if we allow constitutional rights to be "regulated" despite the lack of constitutional authority for regulation, who knows what's really a "right"?

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 3 Oct 2017 @ 12:50pm

        Gun Culture in the 80s

        There are a lot of scary differences between gun adverts in the 80s and the Man Card Re-enstated gun adverts today. Similarly the NRA in the 80s focused strictly on firearm rights and education and wasn't so attached to the neoconservative movement (and the weapons manufacturers) that rose in the 90s.

        The people that taught me about guns seemed related to police, military and Libertarians (again, of the time), so knowing how to break down and clean your weapon was regarded as a duty, as was practicing at the range regularly and mastering your form. Guns were stowed fully loaded, and all weapons were regarded as fully loaded.

        I was in high school in the eighties and wondered at the time why my one quarter of career development that offset my one quarter of traffic school wasn't turned into a gun safety course. It seemed like a natural step.

        Now, yes, crime had skyrocketed in the 70s and 80s and we want to blame everything wrong about those eras (or attribute the drop in crime in the aughts to things like internet porn), but our best guess is that leaded gasoline was the culprit. Each region's drop in crime rate conspicuously correlates to unleaded gasoline mandates.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 2 Oct 2017 @ 9:16pm

    How does that go now??

    Dont JUMP or I will shoot??
    Dont shoot or I will jump??

    Dont listen to him he has a GUN, BAM BAM BAMBAMBAMBAMBAM...
    Ok, wheres the gun?

    Stop him, He took my Purse..
    BAM BAM BAM BAMBAMBAM...
    Here's your purse mam.. is this your gun?
    BAM..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Oct 2017 @ 8:30am

    Legion of Boom...?

    I think the Seattle Seahawks did not mean for the local PD to take that phrase to heart.

    reply to this | link to this | view in chronology ]

  • icon
    Flakbait (profile), 3 Oct 2017 @ 2:03pm

    It might not be in the Constitution...

    ...but somebody important wrote it down somewhere that it was self-evident we are all endowed with certain unalienable rights, among these are LIFE, liberty and the pursuit of happiness. So I'm going to disagree with this part: "The officers asserted a nonexistent right (the "right" to make it home alive)..."

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Oct 2017 @ 4:09pm

      'My right to swing my fist ends at your nose'.

      Just because they have the right to live, does not mean it includes the right to take it away from others in it's exercise, especially if the 'right' is entirely one-sided(would those same police agree that non-cops have a 'right to make it home alive' when interacting with police? Somehow I doubt it).

      reply to this | link to this | view in chronology ]

  • icon
    Shane (profile), 4 Oct 2017 @ 2:10pm

    Feds

    Who cares what the Feds told the Seattle Police?

    You people trust Feds implicitly and everyone else is supposedly a crook... EXCEPT FOR PEOPLE BREAKING THE LAW.
    THOSE people are just fine.

    The Federal Government has NO BUSINESS handing out guidelines for local government to obey. You won't even let them DEFEND OUR BORDERS.

    Tell you what I'm for. Do away with all police and reverse all weapons restrictions at all. Let's get back to brass tacks, and we'll see how smart you are when you actually need to learn to get along with your neighbors instead of calling on Big Daddy Fed to ram your views down everyone else's throats.

    reply to this | link to this | view in chronology ]


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