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MEDVIN LAW PLC is one of the very few law firms trusted by Northern Virginia law enforcement officers for the defense of serious internal investigations, criminal investigations, and personal matters. We have represented police officers, their friends, and their family members from many of the local VA/DC Metro area police departments.

References: City of Alexandria Police Department, Fairfax County Police Department, Arlington County Police Department, Metropolitan Police Department of the District of Columbia, and Federal Law Enforcement Agencies (including Quantico Police and Secret Service).

 


Law Enforcement Use Of Force

Police officers in Virginia cannot use excessive force to apprehend a subject, but they may use reasonable force or “effort”, as required in a given set of circumstances, “to compel compliance by an unwilling subject,” as explained by the International Association of Police Chiefs.

In reality, this means that as a situation escalates, an officer makes split-second decisions as to how to control the situation, respond to possible threats, and apprehend their subject.

The Fairfax County Police Department Use of Force Policy can be found here. The City of Alexandria Use of Force Directives can be found here.

 


Police Officer Defense Attorney Consultation Call 888-886-4127

This article is written by award-winning police defense attorney Marina Medvin. Ms. Medvin has represented police officers and military officers charged with Virginia offenses. Ms. Medvin has also served as an advisor to the local Police Department on issues of Use of Force and taser usage. Marina Medvin is an NRA Lifetime Member. We offer significantly discounted legal fee rates to law enforcement officers charged with criminal offenses in the performance of their duties. We are also on the list of Criminal Attorneys recommended by the Virginia Police Benevolent Association / Southern States Police Benevolent Association, and your membership with the PBA may cover your legal fees. Please call Attorney Medvin at 888-886-4127 for more information.

 


Understanding the Legal Use of Force

The first level of force is the mildest one – police officer presence in uniform or with a badge, in itself, is a way for the officer to exert a level of force and authority over citizens.

The second level of force is through verbal commands. Officers issue commands, such as “Let me see your identification and registration,” “stop,” or “don’t move.”

Aside: The Virginia Supreme Court has detailed examples of circumstances that may indicate that a seizure has occurred. Such examples include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” In contrast, a police request made in a public place for a person to produce some identification, by itself, generally does not constitute a Fourth Amendment seizure. McCain v. Commonwealth of Virginia.

The third level of force is physical restraint and physical command over a subject. If the situation calls for it, officers can grab and hold the subject in order to restrain that individual. If this doesn’t work or is not an option, then officers may use punches and kicks to restrain an individual. These actions must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly.

Aside: According to the Virginia Supreme Court, a person is “seized” within the meaning of the Fourth Amendment if, under the circumstances presented, a reasonable person would believe that he was not free to leave the scene of an encounter with the police. United States v. Mendenhall. Thus, a seizure occurs when a law enforcement officer, by physical force or some display of authority, restrains in some manner a citizen’s freedom of movementMcCain v. Commonwealth of Virginia.

The next level of force is when officers have a reasonable need to control the situation by using their tools or weapons. Officers may use a baton or projectile to immobilize a combative person. Officers may use chemical sprays or projectiles such as pepper spray. And, officers may use tasters to immobilize an individual. This type of force must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly. Officers cannot continue beating someone with their baton once the person is no longer resisting or no longer posing a threat, for example.

The last level of force is deadly force. The U.S. Supreme Court’s decision in Tennessee v. Garner placed restrictions on police use of deadly force:

“deadly force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

A Virginia police officer is allowed to use deadly force if he can articulate that his life or the life of another was threatened. This is a type of self-defense or defense of another situation. It is judged from the perspective of the officer at the time of the shooting.

Fairfax, Virginia example of the use of force training: Fairfax Police Department Retrains Officers to Avoid Use of Deadly Force

 

 


The Rights of a Police Officer Being Investigated By Internal Affairs For Use of Force

When a police officer is coerced, under threat of discipline, to provide a statement to IA (Internal Affairs) or the police department about the performance of his duties, the officer’s statement cannot be introduced in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U.S. 493 (1967). Stated more simply, statements obtained from police officers under threat of termination for refusal to answer could not be used in subsequent criminal proceedings.

  • Fifth Amendment provides that no individual “shall be compelled in any criminal case to be a witness against himself.”
  • Under the Fourteenth Amendment, statements that the government compelled a public employee to give by the threat of job loss are coerced and cannot be used in any subsequent criminal proceeding. The 14th Amendment protects an officer’s right not to testify when he is a defendant in a criminal trial but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answer might incriminate him in future criminal proceedings.
  • Many police departments require officers to provide a statement to IA about the use of force. Police verbiage example: “[a]n employee may be ordered to answer questions that are related to their duties or fitness. Failure to answer such questions may be the basis for disciplinary action.”
  • Garrity policy example: “The employee shall truthfully and completely answer all questions pertaining to the investigation, either verbally or in writing. Refusal to truthfully and completely answer these questions shall be grounds for disciplinary action and may result in dismissal from the department. While an employee has the right to remain silent and not incriminate him or herself in a criminal proceeding, the employee’s silence or refusal to answer questions during an administrative investigation will be deemed insubordination and will result in discipline, which may result in dismissal from the department in accordance with Garrity v. New Jersey.”

However, a police officer may not refuse to answer questions relating to the performance of his duties as long as the officer is given immunity (from the use or derivative use of his statements) in a potential criminal prosecution. Gardner v. Broderick, 392 U.S. 273 (1967). This is rare.

If you are being investigated for potential criminal activity for the performance of your duties as a police officer, you need to speak to an attorney before you speak to IA or anyone else in your department. 

The Fairfax County Police Department Conduct and Discipline Policy can be found here.

The Fairfax County Police Department Internal Investigations Policy can be found here.

The Fairfax County Police Department Ethics and Integrity Policy can be found here.


 

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