Posts tagged “Graham v. Conner

Police Use of Force: A Wedge Issue for Grievance Politicians

The use of force by law enforcement has been the issue du jour in the news lately.   While Michael Brown’s death in Ferguson, Missouri has dominated national headlines, the shooting death of unarmed Dontre Hamilton, a troubled 31-year-old man killed by a police officer at Milwaukee’s Red Arrow Park in April, resulted in a smaller, yet similar, protest last Friday.

Some of the African-American political officials present brought a litany of complaints to the table: the high rate of joblessness in the black community, poverty, ignorance, and despair.  While serving in their public capacities, however, many of these same African-American officials have actually done little to pass laws that would significantly curb the use of excessive police force.

For instance, state legislatures can pass laws that expand the rights of individuals beyond those that are constitutionally protected.  One example is Wisconsin state statute 946.75, which criminalizes an officer’s denial of an individual’s request “…to consult and be advised by an attorney at law at personal expense, whether or not such person is charged with a crime” while in police custody.  From my experience, though, the most effective way to curb police abuse is not the criminalization of some forms of law enforcement conduct.   After all, how many officers have ever been convicted for violating § 946.75?  None that I know of, even though there have been documented instances of police officers violating this statute.

Some, especially civil rights attorneys, believe lawsuits are the answer, even though the vast majority of the monetary costs and damages associated with police officer lawsuits are absorbed by a municipality’s insurance.  Consequently, the only persons actually feeling any pain from police officer use of force lawsuits are the taxpayers.

Most law enforcement officers and district attorneys are going to cringe when they read this; nevertheless, the most effective way to marginalize the use of excessive force is the suppression of evidence.  The U.S. Supreme Court appeared to steer the nation’s courts this way in Graham v. Conner, 490 U.S. 386 (1989); whereby, the Court shifted the constitutional protection of an excessive use of police force (for those not incarcerated in jails or prisons) from the Fourteenth Amendment to the Fourth Amendment, in effect, making an excessive use of force tantamount to an unlawful seizure.

Defense attorneys soon realized that a remedy to an unlawful seizure might be the suppression of evidence, and cases began working their way through the courts.   In U.S. v. Watson, 558 F.3d 702,  the U.S. Seventh Circuit Court of Appeals abruptly put the kibosh on such a defense by finding no casual connection between the evidence collected and the seizure of a defendant via an excessive use of police force, even though the sole purpose of suppression is to discourage police misconduct.  The Wisconsin Court of Appeals used the Watson decision as a catalyst to negate the suppression of evidence based on excessive police use of force in State v. Herr, 346 Wis. 2d 603.

Regardless of the U.S. Seventh Circuit Court of Appeals ruling or a Wisconsin court’s finding in State v. Herr, the state legislature can — when it sees fit — offer more rights by law than the Constitution or the courts grant.  If the Milwaukee delegation in the state legislature is so outraged by what it sees as a pattern of excessive force on the part of the police, why is it then that not one Democrat has offered a bill to suppress evidence seized after a police use of excessive force, not even during the Doyle years when the Democrats controlled all three branches of government?

Some officers believe that the police use of force is being used by Democrats as a wedge issue.  In other words, African-American lawmakers use these protests to garner some street credibility and to gin-up their political base, but, when the rubber meets the road, they fail to propose legislation that would suppress evidence gathered as a result of an excessive use of police force.  In this way, the issue of excessive force stays alive for yet another day to be used whenever the grievance political community sees fit.

Unfortunately, based on the turnout at Friday’s protest at Red Arrow Park, it appears that Democrat lawmakers from Milwaukee are playing their base like a fiddle.

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Steve Spingola is an author and retired Milwaukee Police Department homicide detective. His latest book, Best of the Spingola Files, Volumes I & II, is now available at Amazon.com.

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© Steven Spingola, Wales, WI, 2014