By Gavin Ellis and Michael Harrison
Assistant District Attorneys in Harris County
Eric Garner, George Floyd, and other citizens who have died at the hands of police are indelibly linked to the work prosecutors do on a daily basis. Even in our own state, Botham Jean and Joe Campos Torres—two men killed by officers—have changed the way many of us see our daily work and our relationship with police. These tragic situations cannot be healed, or even completely understood, by simply sharing platitudes on our social media pages. While the police are on the front lines, prosecutors have not been exempted from the scrutiny, discontent, and responsibility associated with failures of justice in the past.
The opportunity always exists, however, that we see justice done in the future. Prosecutors all have a responsibility to ourselves, the victims we fight for, and the criminal justice system as a whole, to maintain checks and balances and help protect integrity in policing. When that frontline integrity and trust is lost, the structure of everything supporting it begins to crumble.
As prosecutors, our remedies for injustice are, and have been, to recognize the injustice and to use the tools of justice to address the criminal transgression. What has previously impeded justice in police excessive force cases has often been a lack of recognition for the legal violations committed. When prosecutors are willing to and capable of recognizing excessive force, we can more effectively articulate it to juries, judges, and fellow attorneys. For prosecutors, recognition starts with knowing what makes force excessive, being familiar with the relevant laws governing use-of-force, and being willing to apply the law impartially.
One note to those in smaller offices: While many large prosecutor offices, including ours, have civil rights divisions dedicated solely to reviewing, presenting, and prosecuting allegations of excessive force, the two of us recognize this is not true for most counties across the state. Not all jurisdictions have the resources or the number of investigations to justify an entire unit. In these counties, the duty of case review, evaluation, and grand jury presentation is left to the prosecutors who must also handle the rest of their caseload. Such an undertaking can be unwelcome and unorthodox when most of us are not used to using terms like “suspect,” “target,” and “defendant” in reference to the police we often work with and respect. Seeking out assistance, role-playing, and collaborating with fellow prosecutors and investigators can prove essential when navigating these often-uncharted waters. We hope this article, too, can provide assistance for prosecutors who are new to handling use-of-force investigations.
What makes force excessive?
Our laws recognize that law enforcement is one of the few occupations where using non-consensual, physical force against another person is sometimes a necessary duty of the job. That duty does not extend, however, to instances where police use a higher degree of force than is reasonable or use force when it is not immediately necessary.
Situations often arise where officers have a right to use force, but this does not mean they can use any force they see fit. Just because some force may be justified does not mean all force is reasonable. For example, if an unarmed arrested person is not complying during handcuffing and begins to resist, the officers have a reasonable right to use force to place the person under arrest and take him into custody. This force sometimes manifests itself through takedowns, tasing, and striking the arrested person. While some striking to the suspect’s person may be a reasonable use of force in this particular situation, if an officer decides to use a baton to repeatedly and forcefully strike the resisting suspect in the face, the degree of force would likely be deemed excessive. Such force could cause death or serious bodily injury, such as brain damage or skull fractures. The officer would be meeting non-deadly resistance with deadly force, a degree higher than necessary. At that point, the force would exceed what any reasonable officer would believe was a necessary response to obtain compliance, place the person under arrest, or protect himself and fellow officers.
In addition, force may be used only when it is immediately necessary. Balancing immediacy can be understood much like the ripeness and mootness standards in civil procedure. If action is too early or too late, it becomes improper. Police make contact with people daily and develop intuitions about their behavior. Sometimes these interactions can be emotionally charged, and it is normal for police to anticipate conflict in certain situations. Clearly, though, an officer cannot preemptively use force that is not yet necessary. Officers should not tase detained people simply because they believed those detainees could become combative at some point in the future.
Furthermore, when officers are using force and the force stops being necessary to protect from harm or serve another lawful purpose, continued use of force becomes excessive. The Rodney King beating in 1991 is a well-known example of this. Long after King was on the ground and able to be taken into custody, officers continued striking him. King endured 33 baton strikes and seven kicks over one minute and 19 seconds. While some force may have possibly been reasonable earlier in the interaction, the strikes and kicks were not reasonable or immediately necessary at the time of the infamous video. These facts are made more egregious considering that numerous officers were on the scene and participating. Reasonable alternatives to the force used were available, and the force was not furthering a lawful purpose, such as taking King into custody or preventing bodily harm.
The law governing excessive force
It is unquestioned that a key part of a peace officer’s duties include using force when necessary. Hundreds of courses across the country totaling thousands of hours of instruction focus on teaching officers how and when to use force. The authority of peace officers to use force in appropriate situations changes the way that prosecutors evaluate allegations of excessive force. Prosecutors are accustomed to evaluating cases based on whether the facts of a case meet the elements of an offense. Different from many of the cases that we normally handle, these cases involve a critical question: not who is responsible, but why did the incident occur. Answering the question of why is essential in determining whether the conduct was justified or unjustified. In most force-related officer cases, justification is the central issue, and it is where the legal analysis begins.
Chapter 9 of the Texas Penal Code prescribes a number of legal justifications. Although most of the justifications listed in this chapter may be applied to a police officer’s use of force, our focus will be on self-defense and the law enforcement justification. These two justifications are most often relevant in excessive force cases and are a great place to start evaluating your case.
Most prosecutors are familiar to some degree or another with self-defense. It should be reassuring to learn that our experience with self-defense is easily transferred to the evaluation of an excessive force case. This is because there is not a separate self-defense law for peace officers and everyday citizens. The same self-defense analysis that is applied to an assault case between two neighbors is applied to a use-of-force case involving an officer and a detainee.
Section 9.31 provides, in part, that “(a) person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Section 9.32 requires that the conditions of 9.31 are established but goes on to justify the use of deadly force “to protect [oneself] against the other’s use or attempted use of unlawful deadly force.” It is likely the facts of a case will include an officer’s statement or a police report mentioning that the officer feared for his life or safety before resorting to force. These key words are an indication that a case requires a self-defense analysis. Contrary to popular belief, an officer’s fear or genuine belief that force was necessary does not, by itself, make the use of force justified. A key question in any self-defense case is whether or not the actor’s fear or belief was reasonable under the circumstances. The Penal Code defines a reasonable belief as one “that would be held by an ordinary and prudent [person] in the same circumstances as the actor.” Moreover, in the context of a peace officer’s use of force, courts have further explained that the determination of reasonableness is based on the belief of a reasonable officer in the same circumstance. Determining what a reasonable officer would do in a given situation is not always easy, but it is possible. Policy, training, and an application of basic human experience and interaction are good places to start. An officer’s training and years of experience may alert him or her to a danger that an everyday citizen may not instinctively perceive as dangerous, thus justifying a decision to use force. On the other hand, an officer may claim that a particular action caused him or her fear—for example, a driver reaching toward a glove box when asked for insurance information—but given the context and the application of everyday human experience, the fear may be deemed unreasonable.
When evaluating whether an officer’s use of force was reasonable, the circumstances must be viewed from the standpoint of the officer. Doing so requires taking into account the context of the interaction, as well as the speed at which events are occurring in real-time.
Sections 9.31 and 9.32 not only require that the use of force itself is reasonable, but also that the degree of force is reasonable. In Warren v. State, a jury convicted a Metro Police Department officer of assault for striking a homeless man 13 times with his baton during an altercation, and the Court of Appeals upheld it. The jury decided that although the first several strikes may have been justified, the blows that were delivered as the man cowered on the ground (and continued even after the officer’s partner instructed him to stop) were excessive. Determining whether an officer has exceeded the degree of force reasonably necessary for protection will largely depend on the facts of the case. Looking to policy and training can be instructive. However, it is important not to ignore conduct that—by virtue of the context, words, or demeanor of the officer—appears to be personal or vindictive in nature, rather than serving a legitimate law enforcement purpose.
Defense of a third party
Similar to §§9.31 and 9.32, §9.33 of the Penal Code justifies the use of force or deadly force in defense of a third party. Whether it is in defense of a citizen or a partner, §9.33 may be applied to an officer’s use of force if he or she reasonably believed that the force or deadly force was immediately necessary to protect the third party. The evaluation of a defense of third party justification will require the same reasonableness analysis as self-defense, including an inquiry into the degree of force used.
Apparent danger doctrine
A complete analysis of a self-defense or third-party justification will require an understanding of apparent danger. The apparent danger doctrine is merely a deeper analysis of the term “reasonable belief” contained in §§9.31 and 9.32. The doctrine is built on the reality that a belief can be reasonable but still be wrong. Furthermore, in some instances, waiting to confirm the legitimacy of a threat may not be possible or wise. If it would appear to a reasonable person that force is immediately necessary to protect oneself or a third party against unlawful force, the law justifies the actor’s use of force without regard to whether the threat actually exists. Excessive force cases involving toy guns, cell phones, and suspects reaching into their waistbands are all likely analyzed using the apparent danger doctrine. However, in addition to requiring that the actor’s belief is reasonable, courts have also held that words alone are insufficient to justify the use of deadly force under the apparent danger doctrine. A person’s verbal threat of deadly force, without any conduct in furtherance of that threat, does not authorize the use of force in self-defense or in defense of a third party.
The question of reasonableness is ultimately a question for the trier of fact. However, when evaluating a potential excessive force case, it is important for a prosecutor to answer these questions for him or herself.
Law enforcement justification
Another frequently visited justification in excessive force cases is §9.51. Unlike self-defense, §9.51 is specific to law enforcement or a person acting at the direction of law enforcement. This section also differs from self-defense in that it does not require the use or attempted use of force against the officer before he or she is justified in using force. Under §9.51, “a peace officer … is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest. …” The language of §9.51 should sound familiar: With the exception of a few key differences, it has many similarities to self-defense and defense of a third party. The reasonableness standard that is applied when analyzing self-defense is also applied under §9.51. Additionally, a focus on the reasonableness of both the use and degree of force is present in both sections.
However, although reasonableness is our first inquiry in a self-defense evaluation, it is the second step in a §9.51 analysis. Section 9.51 justifies an officer’s reasonable use of force to carry out an arrest or a search or to prevent escape after an arrest. When evaluating a case under §9.51, it is important to first establish the officer’s goal. Cases in which force is used against a resisting arrestee or a detainee during a search will most often be analyzed under §9.51. Conversely, in a recent Harris County case, a jury convicted an officer of Official Oppression after he used his Taser on a woman suffering from a mental health crisis; at the time, the woman was bound in four-point restraints in an emergency room bed. The jury convicted the officer over a §9.51 instruction. During the trial, the officer’s supervisor testified that the complainant was not under arrest, and that the officer’s duties had ended once the complainant had been transported to the hospital and was securely placed in the care of nurses. Multiple nurses testified that the officer re-entered the room after the complainant used profanity toward him. The jury decided that because the officer was not attempting to make an arrest, conduct a search, or prevent the escape of the bound complainant, the requirements of §9.51 had not been met. When evaluating an excessive force case under §9.51, it must be determined whether the officer was attempting to perform one of the enumerated job duties, in addition to determining whether the force was reasonable under the circumstances.
The legal analysis in a police use-of-force case requires distinct attention to the justifications that may be present. However, in the absence of a sufficient legal justification, excessive force cases take on much of the same characteristics as any other case. A prosecutor must decide which offense best fits the facts of the case, then pursue that case and ensure that justice is done.
The agency’s role
Generally speaking, an excessive force investigation will be initiated by the law enforcement agency with jurisdiction over the location of the incident. In many instances, this will be the agency that employs the involved officer(s). However, depending on the circumstances of the incident—for example, a motor vehicle pursuit that crossed jurisdictional lines—an incident may involve officers from one jurisdiction while the investigation is handled by another agency. Regardless of who is handling the investigation, the agency’s chief role is to collect evidence, generate a report, and take witness statements, including statements from the officer(s) involved in the incident. Prosecutors must keep in mind that many statements by the officer(s) involved may not be considered free and voluntary under Garrity. After all relevant evidence is collected, the agency will turn its investigation over to the DA’s office with jurisdiction over the incident.
The prosecutor’s role
After the law enforcement agency turns its investigation over to a prosecutor office, a comprehensive review must be conducted. Like most cases, this includes reviewing all evidence provided by the police agency; making contact with the victim or accuser; making evidentiary evaluations about the case; and closing the case, charging it, or presenting it to a grand jury. When undertaking an investigation, it is important that prosecutors know if their office has specific policies with regard to handling use-of-force cases. These may provide specific directives on how these investigations should be handled in a given jurisdiction.
In some cases, an allegation may be proven unfounded by the evidence or insufficient to legitimize a criminal charge. These cases can often be simply closed. It may be beneficial to draft a memorandum about the case and place it in the file to explain the issues and document why the case was closed. In most cases, public statements and press releases are not necessary after the administrative closing of a use of force investigation. Certain cases will, however, attract scrutiny from media and the public. In these situations, consult with leadership in your office about the best course of action with regard to handling public statements.
At times, an investigation may not be clear-cut. It is common for uses of force to be exhibited against suspects who are charged with serious crimes, who are currently incarcerated, or who have prior felony convictions. Also, uses of force are most often initiated after some sort of non-compliance or force by the victim or suspect. While these factors do not excuse an officer’s use of unlawful force, they can be mitigating, can negate the credibility of victim testimony, and can garner the sympathy of jurors. Weighing these factors can create a complicated web of legality, morality, and justice in a prosecutor’s mind. In such cases, presenting to the grand jury can be a valuable tool. A grand jury allows the prosecutor to empower the community to make decisions regarding the reasonableness of force and avoids having a single prosecutor making a unilateral decision about an important case.
Before presenting to a grand jury or making a charging decision, effective communication can help make the rest of the process run more smoothly. In some cases, the officers under investigation will have hired attorneys to provide them counsel. As is true in most cases, it helps to keep the defense updated, provide them a target letter, and give them notice when you decide to close, charge, or present a case to a grand jury. A standard target letter should notify the officer and counsel of the time and date of presentation and, in most cases, allow them to avail themselves to testify in front of the grand jury. Sometimes, attorneys will willingly make their clients available to testify at the grand jury. Effective communication also applies to notifying the officer’s agency. Often, the agency will want to be able to promptly make decisions regarding the officer’s employment, depending upon the result of the case. If there are officer witnesses or agency trainers you wish to testify at trial (should the case be charged), consistent communication can keep witnesses in the know and foster goodwill.
Seeking help from DA investigators
Prosecutor office’s investigators can be highly valuable resources for evaluating the techniques and degree of force used. Reviewing use of force incidents often means understanding the perspectives of a reasonable officer, and investigators can provide insight into officer practices, training, techniques, and procedures. Furthermore, many have been in similar situations and have the knowledge to help prosecutors better understand the dynamics of citizen interactions.
We’re not advocating that an investigator’s opinion should be the determining factor in the reasonableness or illegality of another officer’s force. Our own investigators and trusted officers may have an unrefined or overly sympathetic understanding of the reasonable bounds of force. This does not, however, negate their potential experiential and scientific contributions to an investigation. Even in cases where investigators have a different perspective from that of grand jurors or other prosecutors, their viewpoints can be valuable in evaluating a case’s trial readiness or preparing for trial arguments from the defense.
In the courtroom
Prosecuting the “good guys” often presents unique hurdles. Criminal cases against police defendants are often scrutinized heavily, especially when the victim has a criminal record. Some judges, prosecutors, and jurors have issues believing that an officer may have done something wrong, even when the evidence clearly suggests that a crime was committed. This can make trying cases against officers highly contentious. The State must overcome this difficulty and see justice done impartially. We must hold the other parties to that same standard.
Sometimes, judges may need to be encouraged to treat police defendants the same as other defendants. The optics of a judge’s preferential treatment of a peace officer defendant may communicate unconscious suggestions about guilt to jurors, victims, and family members. The court may be less rigid about character evidence, let the defendant walk around the well during breaks, or even use the bathroom in chambers. These issues may be particularly challenging in smaller counties where the criminal justice community is smaller and more close-knit. It may not seem improper to the judge to allow more freedoms to someone he may have previously seen as a witness or for whom he may have signed a warrant. Trial prosecutors must be prepared and willing to endure the uncomfortable position of asking the court to enforce its own standards.
We have the responsibility to seek justice, no matter who is accused. Doing so protects the integrity of our criminal justice system and validates the good work of so many of the law-abiding, community-protecting officers who are not committing unlawful acts. While prosecutors have no right to demand perfection, we do have a right and a responsibility to hold officers accountable to the laws of the State of Texas. To do so, we must have the knowledge and the conscience to recognize excessive force when we see it. If the State is not actively recognizing it and willing to prosecute it, we are enabling it—and if we are enabling it, we are failing to protect our communities and neglecting our oath to the constitution.
 While the officers in this case were acquitted in the state case, two of the officers were convicted on federal civil rights violations and served federal prison sentences.
 See, e.g., Tex. Penal Code §9.21 (Public Duty); Tex. Penal Code §9.22 (Necessity).
 See Tex. Penal Code §§9.31 and 9.32.
 See Tex. Penal Code §9.51.
 Tex. Penal Code §9.31(a).
 It is worth noting, especially in the context of law enforcement use of force, that §9.32(a)(2)(B) justifies an actor’s use of deadly force “to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.”
 Tex. Penal Code §9.32(a)(2)(A).
 See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010); Bell v. State, 566 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Warren v. State, No. 14-19-00589-CR, 2020 WL 7866798, at *5 (Tex. App.—Houston [14th Dist.].
 See id.
 Tex. Penal Code §1.07(42).
 See Escobar v. Harris Cty., 442 S.W.3d 621, 629 (Tex. App. 2014); Graham v. Connor, 490 U.S. 386, 396 (1989).
 See Tennessee v. Garner, 471 U.S. 1, 15-20 (1985).
 Gonzales v. State, 838 S.W.2d 848, 870 (Tex. App.—Houston [1st Dist.] 1992, pet. denied) (determining that the jury had to view the altercation from the defendant’s standpoint, rather than the complainant’s, when deciding the issue of self-defense).
 Graham, 490 U.S. at 396 (opining that triers of fact should make “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation”); see also Shannon v. State, 36 S.W.2d 521, 523, (Tex. Crim. App. 1931)(noting that a self-defense analysis should take into account the “manner and character of [the interaction], taken in connection with all the surrounding circumstances happening at the time or beforehand, as viewed from the defendant’s standpoint alone.”).
 Tex. Penal Code §9.31(a); Tex. Penal Code §9.32(a)(2)(A).
 Warren, 2020 WL 7866798 at *1.
 See id.
 See, e.g., Ryser v. State, 453 S.W.3d 17, 27 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“If an officer uses more force than is reasonably necessary, [the officer] exceeds [the officer’s] statutory authority and may be subject to criminal liability.”).
 Tex. Pen. Code. §9.33.
 See Valentine v. State, 587 S.W.2d 399, 401 (Tex. Crim. App. 1979) (concluding that the term “reasonable belief” in the jury charge sufficiently instructed the jury that a reasonable apprehension of danger, whether actual or apparent, is sufficient to entitle an actor to exercise the right of self-defense).
 Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996) (“a person has the right to defend himself from apparent danger to the same extent as he would if the danger were real”).
 Espinoza v. State, 951 S.W.2d 100 (Tex. App.—Corpus Christi 1997, pet. ref’d)
 Section 9.51(c) justifies the use of deadly force when reasonably believed to be immediately necessary to make an arrest, or to prevent escape after arrest, “and 1) the officer reasonably believes the conduct for which arrest is authorized included the use or attempted use of deadly force; or 2) the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed.”
 Tex. Penal Code §9.51(a).
 See, e.g., Kacz v. State, 287 S.W.3d 497, 504–05 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
 When reviewing statements in an excessive force case, it is very important to be familiar with Garrity v. New Jersey, 385 U.S. 493 (1967). In short, under Garrity, any statement that is made under threat of removal from office or termination—including statements made to internal affairs—is not a free and voluntary statement. Such a statement cannot be used by prosecutors.