OLR Research Report February 1, 2008 2008-R-0074 USE OF DEADLY FORCE BY LAW ENFORCEMENT OFFICERS By: George Coppolo, Chief Attorney You asked what procedures Connecticut law requires to be followed when a law enforcement officer uses a deadly weapon that causes someones death. SUMMARY The law requires the Division of Criminal Justice to investigate whenever a law enforcement officer, while performing his or her duties, uses deadly physical force that causes someones death. It must also determine whether the officers use of deadly physical force was appropriate under standards established by statute and submit a report of its findings and conclusions to the chief states attorney. The division is a state executive branch agency headed by the chief states attorney, and is in charge of the investigation and prosecution of all criminal matters in the Superior Court. The statutory standards allow an officer to use deadly physical force when the officer reasonably believes it is necessary to (1) defend himself or herself or a third person from the use or imminent use of deadly physical force or (2) arrest or prevent the escape of someone the officer reasonably believes has committed or attempted to commit a felony involving the infliction or threat of serious physical injury, and, if feasible, the officer has given warning of his or her intent to use deadly physical force. If the division concludes it cannot adequately investigate the incident, the chief states attorney, or a states attorney may apply to a panel of judges selected by the chief justice for the appointment of an investigatory grand jury to investigate the circumstances of the death. The appointment is discretionary and will happen only if: 1. other normal investigative procedures (a) have been tried and have failed, (b)reasonably appear to be unlikely to succeed if tried, or (c) are too dangerous to employ or 2. due to the specific nature of the alleged crime or the nature of the investigation, it is reasonable to conclude that the use of normal procedures would not result in obtaining information that would advance the investigation or would fail to secure and preserve evidence or testimony that might otherwise be compromised. The investigatory grand jury must submit its finding to court within 60 days after completing its investigation. It must also file a copy with the panel that authorized it and with the chief states attorney or a states attorney who applied. The grand jury findings must state whether or not there is probable cause to believe that a crime has been committed. STATUTORY STANDARDS FOR USING DEADLY PHYSICAL FORCE The law authorizes law enforcement officers to use deadly physical force only when they reasonably believe it is necessary to: 1. defend themselves or a third person from the use or imminent use of deadly physical force or 2. make an arrest or prevent the escape from custody of a person whom they reasonably believe has committed or attempted to commit a felony involving the infliction or threatened infliction of serious physical injury and, where feasible, they have given warning of their intent to use deadly physical force (CGS § 53a-22 (c)). The law defines “deadly physical force” as physical force that can be reasonably expected to cause death or serious physical injury (CGS § 53a-3(5)). It defines “serious physical injury” as physical injury which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health, or serious loss or impairment of the function of any bodily organ (CGS § 53a-3(4)). The law specifies that a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which, if true, would constitute an offense. If the believed facts or circumstances would not constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not make the use of physical force justifiable to make an arrest or to prevent an escape from custody (CGS § 53a-22(a)). CONSTITUTIONAL REQUIREMENTS FOR USING DEADLY FORCE The U.S. Supreme Court has ruled that the Fourth Amendment to the U. S. Constitution prohibits the use of deadly force to effect an arrest or prevent the escape of a suspect unless the police officer reasonably believes that the suspect committed or attempted to commit crimes involving the infliction or threatened infliction of serious physical injury and a warning of the intent to use deadly physical force was given, whenever feasible (Tennessee v. Garner, 471 U.S. 1 (1985)). Thus, our statutory standards for using deadly force seem to parallel the federal constitutional standards. The Court has said that the test of reasonableness under the Fourth Amendment is not capable of “precise definition” or “mechanical application.” “[T]he reasonableness of a particular use of force must be viewed from the perspective of a reasonable officer at the scene, rather than with 20/20 vision of hindsight….” Moreover, “allowance must be made for the fact that 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.” The question is whether the officers actions are “objectively reasonable” in light of the facts and circumstances confronting them “(Graham v. Connor, 490 U.S. 396, 397 (1989)). PROSECUTION OF LAW ENFORCEMENT OFFICER FOR USING DEADLY FORCE A law enforcement officer who is prosecuted for murder or manslaughter would be able to claim as a defense that he complied with the statutory standard for using deadly force. Once this defense has been properly raised at trial, the state would have to disprove it beyond a reasonable doubt in order to get a conviction (State v. Hardwick, 1 Conn. App. 609, cert. den 193 Conn. 804 (1984)). To meet the initial burden of proof to establish this defense either the state or the defense must present sufficient evidence to raise a reasonable doubt in the mind of a rational juror as to whether the officers use of deadly force was justified under CGS § 53a-22 (State v. Lewis, 220 Conn. 602 (1991) and State v. Bailey, 209 Conn. 322 (1988)). The test for evaluating self-defense claims under CGS § 53a-22 is a subjective-objective test. The jury must first determine whether the defendant honestly believed that the use of deadly force was necessary in the circumstances. If the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendants circumstances (State v. Smith, 73 Conn. App. 173, cert den. 262 Conn. 923 (2002)). Thus, if the officer properly asserted a defense that he used deadly force to defend himself from the use or imminent use of deadly physical force, the prosecutor would have to prove beyond a reasonable doubt that (1) the police officer did not believe that the person was using or about to use deadly force against him, (2) the officer did not use the deadly force to protect himself, or (3) the officers belief was unreasonable. Division of Criminal Justice The Division of Criminal Justice is the state executive branch agency in charge of investigating and prosecuting of all criminal matters in the Superior Court (CGS § 51-276). The division must take all steps necessary and proper to prosecute all state and local crimes and offenses (CGS § 51-277). Duty to Investigate The law requires the division to: 1. investigate whenever a law enforcement officer, while performing his or her duties, uses deadly physical force that causes someones death, and 2. determine whether the officers use of deadly physical force was appropriate under legal standards established by statute (CGS § 51-277a(a)). The law requires the division to ask the appropriate law enforcement agency to provide whatever assistance is necessary to determine the circumstances surrounding the incident. The law defines “deadly physical force” as physical force that can be reasonably expected to cause death or serious physical injury (CGS § 53a -3(5)). Designation or Appointment of Prosecutor The law authorizes the chief states attorney to designate a prosecutor from a judicial district other than the one in which the use of deadly force occurred, or appoint a special assistant states attorney or special deputy assistant states attorney to conduct the investigation. If the chief states attorney designates a prosecutor from another judicial district or appoints a special prosecutor, he must also appoint a special inspector or special inspectors to assist in the investigation if asked (CGS § 51-277a(b)). The law allows anyone to make a written request to the chief states attorney or the Criminal Justice Commission asking that a prosecutor from another judicial district or a special prosecutor be designated. Investigation Report When the investigation is finished, the division must file a report with the chief states attorney that includes: 1. the circumstances of the incident, 2. a determination of whether the use of deadly physical force by the officer was appropriate under the standards established by statute, and 3. any future action the division will take as a result of the incident. The law requires the chief states attorney to provide a copy of the report to the chief executive officer of the municipality in which the incident occurred and to the commissioner of public safety or the chief of police of the municipality, as the case may be (CGS § 51-277a(c)). INVESTIGATORY GRAND JURY Investigatory Grand Jury An “investigatory grand jury” is a judge, constitutional state referee, or any three judges of the Superior Court appointed by the chief court administrator to conduct an investigation into the commission of a crime (CGS § 54-47(b)(3)). Application for an Investigatory Grand Jury The law authorizes any Superior Court, Appellate Court, or Supreme Court judge, the chief states attorney, or a states attorney to apply to a panel of judges for an investigation into the commission of certain crimes whenever the applicant has a reasonable belief that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime has been committed. The panel consists of three Superior Court judges designated by the Supreme Courts chief justice to receive applications for investigations into the commission of crimes (CGS § 54-47c). Each application must be made under oath in writing and must include: 1. the applicants identity and authority to apply; 2. a full and complete statement of the facts and circumstances the applicant relied upon to justify a reasonable belief that the investigation will lead to a finding of probable cause that a crime has been committed; and 3. a full and complete statement of the facts concerning all previous applications known to the applicant for investigation of any one or more of the same criminal offenses involving any of the same people specified in the application, including the action taken by the panel on each application. The panel may require any additional testimony or documentary evidence in support of facts in the application as it deems necessary. The additional testimony must be transcribed (CGS § 54-47c b)). Applications Made by Chief states attorney or States Attorney If the application is made by the chief states attorney or a states attorney, it must also include: 1. a full and complete statement of the status of the investigation and of the evidence collected as of the date of the application, 2. if other normal investigative procedures have not been tried, a full and complete statement of the reasons these procedures reasonably appear to be unlikely to succeed if tried or be too dangerous to employ, and 3. a full and complete statement of the reasons for the applicants belief that the appointment of an investigatory grand jury will lead to a finding of probable cause that a crime has been committed (CGS § 54-47c(c)). If other normal investigative procedures have been tried, the application must also include a complete statement specifying the procedures that have been tried and the reasons they have failed Application Approval The panel may approve the application and order an investigation if it finds that: 1. the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime has been committed, and 2. the investigative procedures employed by an investigatory grand jury appear likely to succeed in determining whether or not there is probable cause to believe that a crime or crimes have been committed (CGS § 54-47c(d)). If the application was made by the chief states attorney or a states attorney, the panel must also conclude that (1) other normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ or (2) due to the specific nature of the alleged crime or the nature of the investigation, it is reasonable to conclude that the use of normal procedures would not result in obtaining information that would advance the investigation or would fail to secure and preserve evidence or testimony that might otherwise be compromised. Appointment of Investigatory Grand Jury, Duration, and Scope of Investigation. If the panel approves the application, the chief court administrator must appoint an investigatory grand jury, and designate the court location in the judicial district where any motions to quash and any contempt proceedings will be heard and any findings and records of the investigation must be filed (CGS § 54-47d(a)). Each order authorizing the investigation must specify among other things the scope of the investigation and the period of time within which it is to be conducted. The investigation must be completed in six months from the date the investigatory grand jury is appointed, unless an application for an extension of time is filed and granted (CGS ß 54-47d). Extension of Time or Amendment of the Investigations Scope The investigatory grand jury may apply to the panel of judges for an extension of time within which to conduct its investigation or for an amendment to the scope of its investigation. The application must specify the reasons for the extension or amendment. The panel may issue up to two extensions or amendments. The extension period cannot be for more than six months. Sealing Order Authorizing an Investigation Any order authorizing an investigation and any application for an extension or amendment must be sealed. The panel must submit to the Chief Court Administrator a summary of the scope of the investigation, and any recommendation as to the court location at which any motions to quash and any contempt proceedings are to be heard, and the finding and record of the investigation are to be filed (CGS § 54-47e). The summary of the scope of the investigation is public unless the panel determines, by majority vote that the summary be sealed to: 1. ensure the public safety of any individual, 2. ensure that the investigation would not be adversely affected, or 3. comply with statutes or court rules that prohibit disclosing the information. The investigation must be conducted in private. But the panel, by a majority vote, may order the investigation, or any portion of it, to be public when the panel deems that the disclosure is in the public interest. Conduct of Investigation The investigatory grand jury may: 1. seek the assistance of the chief states attorney or states attorney who filed the application, or his designee; 2. appoint an attorney to provide assistance if a judge filed the application; or 3. appoint any other attorney to provide assistance when necessary in the interest of justice (CGS § 54-47f(a)). The grand jury can subpoena witnesses and documents (CGS § 54-47f(b) and (c)). Witnesses may be examined by the investigatory grand jury or by any attorney or attorneys it appoints. At the hearing, the official conducting the investigation must inform the witness that he or she has the right to have counsel present and to consult with counsel (CGS § 54-47f(d)). The official conducting the investigation must inform any witness who is a target of the investigation that he is a target and advise the target that he or she has a constitutional right not to be compelled to be a witness, or to give evidence, against himself (CGS § 54-47f(e)). Any attorney appointed to assist in conducting the investigation must disclose to the investigatory grand jury any exculpatory information or material in his possession, custody, or control concerning any person who is a target of the investigation (CGS § 54-47f(f)). Findings and Record of Investigation The investigatory grand jury must submit its finding with the court of the judicial district designated by the chief court administrator within 60 days after completing its investigation (CGS § 54-47g). It must also file a copy with the panel and with the chief states attorney or a states attorney if he or she was the applicant (CGS § 54-47g(a)). The stenographer must file any record of the investigation with the court and the panel and the chief states attorney or a states attorney, if he or she was the applicant. The findings must state whether or not there is probable cause to believe that a crime has been committed. Any part of the investigation record not disclosed with the finding must be sealed. But anyone may file an application with the panel for disclosure. Public Disclosure of the Investigation Record The panel must, after notice, hold a hearing and the panel, by a majority vote, may disclose any part of the record when it deems disclosure to be in the public interest. But no part of the record may be disclosed that contains criminal allegations against an individual if the investigatory grand jury failed to find probable cause that the individual committed the crime unless the individual asks for the release. Any person aggrieved by an order of the panel can appeal for review with the Appellate Court within 72 hours. Access to Grand Jurys Findings The finding of the investigation must be open to public inspection and copying at the court where it has been filed within seven calendar days after it has been filed. But within that period, the chief states attorney or a states attorney may file a motion with the investigatory grand jury asking that a part or all of the finding not be disclosed. The finding may include all or the part of the record as the investigatory grand jury may determine, except that no part of the record may be disclosed that contains criminal allegations against an individual if the investigatory grand jury failed to find probable cause that the individual committed the crime unless the individual requests the release of that part of the record. In the event as much of the finding as has not been sought to be withheld from disclosure must be disclosed promptly (CGS § 47-54). Within 15 days of the filing of the motion, the investigatory grand jury must conduct a hearing. It must give written notice of the hearing to the person filing the motion and any other person it deems to be an interested party. Within five calendar days of the conclusion of the hearing, the investigatory grand jury must render its decision and send copies to all those to whom it gave a hearing notice. It must deny any motion unless it makes specific findings of fact on the record that there is a substantial probability that one of the following interests will be prejudiced by publicity that nondisclosure would prevent, and that reasonable alternatives to nondisclosure cannot adequately protect that interest: 1. the right of a person to a fair trial; 2. the prevention of potential defendants from fleeing; 3. the prevention of subornation of perjury or tampering with witnesses; or 4. the protection of the lives and reputations of innocent people which would be significantly damaged by the release of uncorroborated information. . Any person aggrieved by an order of the investigatory grand jury can appeal by filing a petition for review with the Appellate Court within 72 hours from issuance of the order. Access to Records by Witnesses and People Accused of a Crime Any witness may apply in writing to the presiding judge of the criminal session of the court of the judicial district where the record of the investigation has been filed for access to and a copy of the record of his own testimony. Any witness must be allowed access, at all reasonable times, to the record of his own testimony and be allowed to obtain a copy of it unless the judge finds after a hearing and for good cause shown that it is not in the best interest of justice to allow the witness to have access to and a copy of it. The presiding judge of the criminal session of the court of the judicial district where the record of the investigation has been filed, must grant any written request of a person accused of a crime as a result of the investigation to have access, at all reasonable times, to the record of his own testimony and to obtain a copy of it. GC:ts
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