I have been putting this off for a long time because I know it will piss off lots of people. Today, I am mad at the world, so I will take it out on all of you.
The Question
Did ICE agents use excessive force when detaining Good and/or Pretti?
Legal Standards
Let’s review the basics of what is considered excessive force and some of the appropriate case law.
4th Amendment – Excessive force used during an arrest, detainment, or seizure is governed by the Fourth Amendment protecting against “unreasonable searches and seizures.”
Graham v Conner – The Supreme Court of the United States (SCOTUS) found that excessive force claims are to be analyzed under the “objective reasonableness” standard. Assessed is whether the officer’s actions were reasonable from the perspective of a “reasonable officer” on the scene at the time, not with 20/20 hindsight. Only the objective facts matter. The factors, per SCOTUS, to be considered include:
- Severity of the suspected crime
- Whether the suspect posed an immediate threat to officers or others
- Whether the suspect was actively resisting arrest or attempting to flee
Barnes v Felix – Courts must consider the full context of the encounter. SCOTUS went beyond the Graham Factors and stated that all facts and events leading up to the use of force must be included in the reasonableness analysis. For example, did the officer unreasonably create or escalate the situation before using force.
Tennessee v. Garner – Deadly force is permissible only when the officer has probable cause to believe the suspect poses a significant threat of death or serious physical harm to the officer or others. This does not preclude the Graham Factors.
Summary
A summary of the combination of SCTOTUS findings in the above cases looks like this:
- Objective Reasonableness – Would a reasonable officer in the same situation believe the same or similar force was necessary? It doesn’t matter if the officer had good or even malicious intentions.
- Totality of Circumstances – Must consider all events leading up to the moment of force.
- Severity, Threat, and Resistance – Graham factors remain the primary guideline.
Good – The more I look at Good, the more I lean towards the ICE agents meeting the above standards. While the agent who shot her made some mistakes in how he moved around the scene, the agent had to react to a fleeing person who used a vehicle in such a way as to be perceived as a deadly weapon. The agent could reasonably decide that deadly force was needed to protect himself as well as others nearby.
In Good’s case, the severity of the crime, the threat to the agents on the scene, and her resistance to being detained meet the guidelines of the Graham factors.
To be clear, it was a horrible situation. However, Good was interfering with ICE operations by purposefully blocking the road, refused to exit her vehicle when lawfully ordered by agents, and she attempted to flee the scene. I feel confident that Good’s intentions were not to try to kill ICE agents, but a reasonable officer could perceive the situation as attempted use of deadly force by Good.
Pretti – This one is very different. To summarize, Pretti had been pepper sprayed multiple times, was clearly under the control of multiple ICE agents who had him on the ground and used their weight to control him on the ground, and he made no attempt to use his firearm. There is almost no way anyone could contend that Pretti was a threat to any of the agents on the scene. He was in a fetal position trying to survive the beatdown he was receiving, and he probably couldn’t even see because of the repeated pepper spraying.
Pretti was not a threat at the time of his shooting. He was well under the control of the agents on the scene and was not a flight risk. He didn’t try to use a deadly weapon even if he carried one. A reasonable officer, even in this highly volatile situation, would not have used a firearm to shoot Pretti.
I want to note that legally carrying a firearm at a protest is not a violation of the law.