Short Relief: Reasonable force depends on a system of reason

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Our attitude toward law enforcement fluctuates wildly.

At one moment, such as in New York and Virginia on 9/11, or in response to all-too-frequent mass shootings, police are selfless heroes, risking their own lives, charging into danger in order to save people regardless of their race, religion, origin or orientation.

Every year for the past 10, about 150 officers have lost their lives in the line of duty.

The next moment, such as in Ferguson, Staten Island or Cleveland, the police are prejudiced villains who kill little children at play and lovable giants engaged in minor peccadilloes.

What’s going on?

We make our own laws, but we don’t always obey them. So, we employ police officers to enforce them. And we give them the powers needed to do so. Those powers include the power to investigate suspicious activity, to protect life and property, and to charge and arrest people who commit crimes. They include the power to use reasonable force to achieve lawful purposes.

It may seem counterintuitive, but the police don’t need any special reason to approach us on the street and engage us in conversation. Like anyone else, the police can ask who we are and what we are doing. And, as if they were anyone else, we can decline to answer. We may resent their attention, but that doesn’t mean that they are doing anything improper.

To the contrary, good police work involves knowing the people in the community, developing relationships and sources, paying attention to details and being inquisitive when things seem out of place. A lot of crimes are prevented and solved that way.

It’s the basis for the “broken windows” approach to policing. New York City’s Son of Sam killer was caught because of a parking ticket. The Oklahoma City bomber was stopped for driving without a license plate. Washington, D.C.’s shotgun stalker was caught when he ran a red light.

But sometimes, police work requires the use of force. When it does, that force must be reasonable.

Reasonable force is sometimes described as the amount of force necessary to achieve a lawful purpose, or force proportionate to the danger presented by the situation. Considerations include the setting, number of persons involved, whether they appear to be armed, what they are doing and saying, and how they respond to the presence of the police. A person’s race alone is not a proper motive for an officer to use force.

So, for example, at the outset of an investigative stop, officers are allowed to draw their firearms in order to get control of the situation. If a suspect refuses a lawful command, or resists arrest, a police officer is entitled to use reasonable force to obtain compliance. And an officer may use deadly force against someone who is threatening deadly force.

There is no right to resist an officer’s lawful order, arrest or use of reasonable force. If an officer uses excessive force, a person has a right to use reasonable force in self-defense. They may have a lawsuit for damages for deprivation of civil rights. The officer may be subject to criminal prosecution.

However, it is rarely, if ever, a good idea to act on that right during an encounter with the police.

The border between reasonable and excessive force is hazy. If you believe that you are being mistreated, wait until the incident is over. Think about it after your anger has cooled. If you still feel wronged, complain to the department and consult an attorney.

The police regularly encounter dangerous, fast-paced situations that require split-second decisions on the basis of limited information. They are challenging for even the most highly trained and experienced officers. They are situations where most of us have little experience, and not much basis to judge. The vast majority of them are resolved without serious issues, and we endlessly second-guess the problematic ones with the advantage of hindsight.

Ultimately, the determination of whether the police have acted improperly or used excessive force should not be made on the basis of untested, second-hand, incomplete information. It should not be made by the media or by vigilantism. Because those are poor ways to determine the truth and do justice. For all its imperfections, the legal system is a better way.

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Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.

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