01/23/2021
https://www.facebook.com/101078411656110/posts/210987680665182/https://www.facebook.com/101078411656110/posts/210987680665182/
The Unicameral reconvened in January and, unfortunately, some senators have proposed “police reform” bills that, even assuming a noble underlying purpose, fail to account for the realities of police work and will make it unsafe to be a police officer in Nebraska. This is the first of 4 posts that will address particular aspects of LB 110, a bill proposed by Lincoln State Senator Patty Pansing-Brooks.
REQUIRING LAW ENFORCEMENT OFFICERS TO INTERVENE TO PREVENT OR STOP ANOTHER OFFICER FROM USING EXCESSIVE FORCE.
Section 1 of LB 110 imposes a new statutory requirement on police: “[a] peace officer shall intervene to prevent or stop another peace officer from using excessive force, without regard for the chain of command.”
Currently, law enforcement agencies across Nebraska are replete with policies that require officers to intervene in situations where they recognize another officer is acting illegally. Unlike those policies, LB 110’s new provision fails to account for the fact that use of force encounters are dynamic and rapidly evolving, and officers do not always have the same vantage point, information, or perspective of the primary officer addressing a suspect in a dangerous situation. As a result, the officer that is observing the actions of another officer will commonly not have the information required to evaluate whether the force used by another officer is excessive. LB 110 would create a legal bind for such officers, who would now be evaluated for criminal liability if, while at a dangerous scene, they may be uncertain as to whether the level of force the officer actively involved in the situation perceives is necessary to address the threat presented is appropriate.
LB 110 ignores the United States Supreme Court law on this issue. Under the U.S. Supreme Court’s standard articulated in Graham v. Connor, the reasonableness of an officer’s force is to be gauged from the perspective of the officer who uses force, not from the perspective of a bystander. The Court astutely reasoned judging force from the perspective of the officer is necessary to allow for the fact that “police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
This Constitutional standard accounts for the fact that bystanders, including witness officers, may not see or perceive the same threats the officer using force sees. For example, a witness officer may not have seen the firearm or knife in a suspect’s hand or may not be able to feel or see the level of a suspect’s resistance from his/her vantage point. This may be due to a variety of factors, including the effects of stress and where each officer’s attention is focused.
In certain encounters, officers may be able to safely intervene and help a fellow officer readjust and reassess the situation. Law enforcement agencies across Nebraska already require such actions. This cannot be safely done in every encounter, however.
Even so, under LB 110 a witness officer who has NOT seen a threat presented by the suspect would be required to intervene and stop every use of force by an officer who HAS seen the suspect’s threat. This could lead to disastrous consequences.
