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TABLE OF CONTENTS Mock Trial Case File

Page

Table of Contents 1

Copyright 2

A Note on Civility 3

Introduction 4

Competition Terms 5

Case Introduction 6

2016 Rules of Competition 8

Judging and Scoring Guidelines 13

Procedural Rules of Mock Trial Competition 16

Simplified Ohio Rules of Evidence 23

Examples of Common Objections and Trial Procedure 30

Scoring Error Notification 37

Complaint Form 38

Lori Urogdy-Eiler Award Nomination Form 39

2016 MOCK TRIAL CASE: State of Harmony V. Riley Green 40

Special Instructions 41

Legal Documents 42

Legal Briefs 43

Witness Statements

AJ Bryant 62

Sam Jones 71

Justice Smith 77

Riley Green 88

Chris Abbott 95

Pat Sweeney 103

Exhibit A 112

Exhibit B 113

Exhibit C 114

Exhibit D 117

Case Law 118

Time Keeper Instructions 138

Sample Score Sheet 148

Acknowledgements 149

“Putting on Mock Trials,” published by the American Bar Association Division for Public

Education, 2002. Copyright © 1990 American Bar Association, Reprinted with permission.

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Copyright ©2016

Ohio Center for Law-Related Education

1700 Lake Shore Drive P.O. Box 16562, Columbus, OH 43216-6562

614-485-3510 or 877-485-3510 (toll-free)

www.oclre.org

This publication was funded by the Supreme Court of Ohio. However, the opinions expressed in

this publication do not necessarily reflect the position of the Court, and no endorsement of the

Court should be inferred.

The Ohio Mock Trial program is made possible in part by a grant from the Ohio State Bar

Foundation.

The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.

The purchaser of this copy is hereby authorized to reproduce or make use of these materials only

for non-profit educational use. Use of these materials or reproduction for sale or competition

outside the classroom is prohibited without the written permission of licensing rights from the

Ohio Center for Law-Related Education

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Civility

You may have seen trials portrayed in the movies and TV shows in which the lawyers

show, or barely conceal, contempt for one another and even towards the judge. This makes for

good drama, but real trials are rarely conducted in this manner, and should never be.

The general duty of an attorney is set forth in the Ohio Rules of Professional Conduct,

which are adopted by the Supreme Court of Ohio and govern the conduct of all Ohio attorneys.

The Preamble to the Rules reads, in part, as follows:

As an officer of the court, a lawyer not only represents clients but has a special responsibility for the

quality of justice. * * * A lawyer should use the law’s procedures only for legitimate purposes and

not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for

those who serve it, including judges, other lawyers, and public officials. *** In addition, a lawyer

should further the public’s understanding of and confidence in the rule of law and the legal system

because legal institutions in a constitutional democracy depend on popular participation and

support to maintain their authority.

Specific provisions of the Ohio Rules of Professional Conduct require an attorney to: be

punctual in fulfilling professional commitments, avoid offensive tactics, and treat all persons

involved in the legal process with courtesy and consideration [Rule 1.2(a)]; be honest in all dealings

with courts and other tribunals before which the attorney appears [Rules 3.3 and 3.5]; refrain from

asking questions that have no purpose other than to embarrass or harass a witness or other person

[Rule 4.4(a)]; refrain from engaging in undignified or discourteous conduct that is degrading to a

tribunal [Rule 3.5(a)(6)]; and avoid conduct involving dishonesty, fraud, deceit, or

misrepresentation or conduct that is prejudicial to the administration of justice [Rule 8.4(c) and

(d)].

Students who participate as attorneys in the Ohio High School Mock Trial Program should

strive to follow these principles of civility while representing the interests of their clients, and can

expect the scoring judges to be favorably impressed as a result. The failure to maintain civility can

be expected to have a negative impact on the scoring judges.

With the rare exception where a student is portraying a witness who might genuinely

require some departure from the high standards of civility set for the legal profession, it will usually

be more effective for a witness to respond courteously to the attorneys’ questions, not to interrupt

the attorney, and to wait while an attorney interposes an objection to the question just put to the

witness. It is never a good idea, no matter how obstreperous the character being portrayed, for a

witness to show disrespect to the court.

As for the attorneys, not only is civility expected, it can be surprisingly effective. Being civil

does not mean being a push-over. Stridency often distracts from the inherent forcefulness of the

argument being made. Cross-examination does not have to be badgering to be thorough and

effective to the point where the witness’s testimony is completely discredited; indeed, a badgering

tone may only engender sympathy for the witness.

It is expected that advisors, coaches, and parents will, at all times, model civil behavior towards and

respect for the court and members and supporters of the opposing team

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THE OHIO CENTER FOR LAW-RELATED EDUCATION

2016 OHIO MOCK TRIAL

COMPETITION MANUAL

Introduction Ohio Mock Trial provides an opportunity for high school students to participate in an academic

competition. The Ohio Mock Trial Competition is designed to foster a better understanding of

the American democratic legal system and to encourage development of analytical and

communication skills. In moving from the classroom to the courtroom, high school students add

an important dimension to their learning experience in citizenship education. Students develop an

appreciation for our justice system and the role of laws in our society. Through first-hand

experience, the Mock Trial Competition can teach students about their rights and responsibilities

under the Constitution. The Mock Trial experience prepares students for possible future

involvement as parties, witnesses and jurors in trials; familiarizes students with the rules and

procedures involved in litigation and the roles and responsibilities of judges and attorneys. The

Mock Trial Competition also develops students’ critical thinking skills, poise and public speaking

ability. By working in partnership with the legal community, teachers and students learn how our

legal system works and learn important democratic principles reflected in and protected by our

justice system.

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COMPETITION TERMS The following list presents important terms to know to participate in the Ohio Mock Trial

Competition. A glossary of legal terminology can be found at the following site:

http://www.oclre.org/documents/high-school-mock-trial-documents.

Case Introduction: A narrative setting forth the facts of the case; it may not be used for purposes

of impeachment during the trial.

Debriefing: A discussion by the judicial panelists of the teams’ and individual performances.

Deliberations: A consideration of team performances by the judicial panel, which determines the

results of the trial.

District Competition: The first round of competition run by volunteer district coordinators in

which each team participates in two trials, one as plaintiff, and one as the defense. The district

winners (teams who have won BOTH trials) advance to the regional competition.

Judicial Panelist: An attorney, judge, or magistrate who volunteers to evaluate teams participating

in the competition.

Legal Advisor: An attorney, or judge who volunteers to coach teams participating in the

competition.

Pretrial Conference: A brief meeting of judicial panelists, legal advisors, teachers and student

attorneys before each trial to address questions and unresolved issues.

Regional Competition: The second round of competition run by volunteer regional coordinators

in which each team that advances from the district competition will participate in two trials, one as

plaintiff, and one as the defense. The regional winners (teams that have won BOTH trials) advance

to the state competition.

State Competition: Rounds of competition take place in Columbus. The teams that won BOTH

regional trials compete with teams from across the state. At the state competition, teams will

compete in at least one trial. Teams are guaranteed one trial. Winning teams (see exception page 8,

section I, letter A) keep advancing until two teams remain to compete in the Championship Round.

Simplified Ohio Rules of Evidence: Rules regarding the admission and exclusion of evidence.

Team: A group of 5-11 students from a school are called upon to present both the plaintiff and

defense sides of the Mock Trial case using students as attorneys, witnesses and bailiff/timekeeper.

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Case Introduction

The Ohio Center for Law-Related Education presents its 33rd

annual Ohio Mock Trial

Case: The State of Harmony v. Riley Green. In this year’s case, AJ Bryant and his/her friend

Sam Jones are attending the Medieval Faire. Due to a slight costume malfunction, AJ and Sam

stopped at a convenience store on the way to the Faire, where AJ caused a disturbance by playing

in character with a bow and arrow. While it was a toy, the store owner believed that it was a

weapon and that the teens were robbing the store, prompting a call to 911. Officer Riley Green

was dispatched to the scene in response to a suspected armed robbery and upon arrival, found

Sam and AJ arguing in the parking lot. During the argument, AJ was flexing the bow and arrow,

which led Officer Green to determine that there was an imminent risk of serious bodily harm

and, as a result, he/she shot AJ in the shoulder. Officer Green was subsequently charged with

felonious assault.

The case will be conducted as a criminal trial and the proceedings have been bifurcated

so the Court will first consider Officer Green’s affirmative defense that the use of deadly force

was legally justified. This year, students will only consider Officer Green’s Affirmative Defense

and NOT the underlying criminal charge of felonious assault. As an affirmative defense, the

Officer has the burden of proof by a preponderance of the evidence. The defendant will

therefore present arguments and witnesses first, followed by the prosecution.

The defendant will argue that the actions giving rise to the charge of felonious assault

were legally justified, pursuant to the 4th

Amendment. The defendant will present evidence that

the seizure of AJ Bryant was reasonable, given that AJ was holding what was reasonably

perceived to be a real weapon, that AJ failed to respond to lawful commands of Officer Green,

and that AJ posed an imminent threat to the officer and others at the scene.

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The State of Harmony will present evidence to rebut Officer Green’s affirmative defense

that the use of deadly force was reasonable. They will argue that Officer Green failed to take

enough time to determine that the toy bow and arrow posed no imminent threat of serious bodily

harm, that the officer did not issue clear and direct warnings before using deadly force, and did

not follow the policies of the Buckeye Police Department.

The attorneys who have prepared the case materials have based the facts upon actual

court decisions, with an eye toward framing the case in a manner that is evenly balanced between

the arguments of the Prosecution and the Defendant. You should not rely on any court decisions

or other legal information beyond that provided to you in these case materials.

The Ohio Center for Law-Related Education and the Case Committee for the State of

Harmony v. Riley Green hope you will find this case challenging and thought provoking. It is

our hope that this case will give you a greater understanding of the Fourth Amendment to the

United States Constitution. It is also our hope that all who participate in the High School Mock

Trial competition will have a great experience. It is expected that advisors, coaches, and parents

will, at all times, model civil behavior towards and respect for the court and members and

supporters of the opposing team.

Also, please remember that the competition coordinators and judges are volunteers who

have taken time out of their schedules to participate in this program. Understand, as it is in

authentic trial situations, that judges may demonstrate different degrees of preparedness and may

make rulings at their discretion that the parties may not always agree with or like. We urge the

Mock Trial participants to be flexible and understanding throughout the competition process.

Best wishes and Good Luck!

The 2015-2016 High School Mock Trial Case Committee

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PART ONE

2016 RULES OF COMPETITION

I. Competition Structure

A. Competition consists of two trials at the district level, two trials at the regional level and at

least one trial at the state level. OCLRE staff has the option of providing two trials after

determining how many teams will be present at the State Competition. If there are an odd

number of teams present at the district, regional or state competition, a team with an

adequate number of team members will be scheduled to play both Plaintiff and Defense at

the same time in order to create an even number. OCLRE will use its best efforts to assign

at least 4 teams to each regional site. In the event no team at a regional competition wins

BOTH trials, one team with the he highest number of total points (excluding the team

performance score) will advance to the state. If after the completion of Trial 1 and Trial 2

at the state competition, the number of teams advancing is more than 8 or 16, Trial 3 will

be used for a Play-in Round to reduce the number of advancing teams to 8 or 16. Teams

participating in the Play-In Round will be drawn at random from the pool of advancing

teams. For example, if 11 teams advance from Trial 2, then Trial 3 would have 3

matchups with 6 teams and 5 teams will automatically move on to Trial 4. From the 6

teams that compete in the Play-In Round, the 3 winning teams will join the 5 teams that

automatically advanced, for a total of 8 teams in Trial 4. Play-In Round participants will be

announced the morning of Day 2 at the State Competition. If after the completion of Trial

1 and Trial 2 at the State Competition, the number of teams advancing is 5, 6, or 7, the

number of teams necessary to bring the remaining number of teams to 8 shall be selected

at random from the group of teams with one loss to complete the quarterfinals bracket.

The remaining 8 teams will then proceed with Trial 3 of the state competition. If after the

completion of Trial 1 and Trial 2 at the State Competition the number of teams advancing

is 4, Trial 3 will be held as the semi-final round with the remaining 4 teams. If after the

completion of Trial 1 and Trial 2 at the State Competition the number of teams advancing

is 3, 1 team will be selected at random from the group of teams with one loss to bring the

remaining number of competing teams to 4. If after the completion of Trial 1 and Trial 2

at the State Competition the number of teams advancing is 2, Trial 3 will be held as the

State Final trial. If after the completion of Trial 1 and Trial 2 at the State Competition the

number of teams advancing is 1, that one advancing team will be named the State

Champion and no further trials will be played. If after the completion of Trial 1 and Trial

2 at the State Competition the number of teams advancing is 0, 8 teams will be selected at

random from the group of teams with one loss to complete the quarterfinals bracket and

Trial 3 will be played with 8 teams.

B. In the district and regional competitions, each team will participate in two trials and will

play both Plaintiff and Defense. District site assignments will be released on Friday,

January 8, 2016. The Center will attempt to provide teams with side playing first

information no earlier than two days before the district, regional and state competition.

This information will be sent by email to team and legal advisors. Be aware that changes

can be made to side playing first up until the start of the trial without notice due to

unforeseen circumstances (e.g. the addition or drop of teams or weather). No side playing

first requests will be considered for any reason. The district/regional coordinator will not

under any circumstances shift teams and times on the day of the competition. Regional and

State competition sites and times will be released after the District Competition.

Courtroom assignments will be provided to teams at registration. Opponents will not be

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released in advance. At the State Competition, teams will advance in a single elimination

tournament. Winners will play winners and losing teams will not advance (see exception

page 8, section I, letter A). Advancing teams will be matched at random, and to the greatest

extent possible, each side played in the previous trial switched. Scrimmage arrangements

are the responsibility, and at the discretion of, the teacher. Note: Please keep in mind

when scrimmaging with a team in your area; you could meet them again in competition.

C. If a team has questions on the mock trial case or competition rules only the team and/or

legal advisor may submit questions to the case and competition committees by contacting

Caitlyn Smith, Mock Trial coordinator, at 877-485-3510 or csmith@oclre.org. The

question must include the name and e-mail address of the submitting advisor. The question

will be forwarded to the case or competition committee depending on the nature of the

question, and if necessary, the answer will be posted on an errata sheet which can be found

at www.oclre.org. The errata sheet will be updated every two weeks, beginning Tuesday,

October 13, 2015 and ending on Tuesday, January 19, 2016. The last day to submit a

question is Tuesday, January 12, 2016.

D. After the district competition, score sheets from the district competition will be sent to

teams advancing to the regional competition. Individual team score sheets for all teams

from all levels of competition will be provided no later than one month after the end of the

State competition: April 12, 2016. Scoring errors must be brought to OCLRE’s attention

using the included Scoring Error Notification Form.

E. The state champion earns the right to represent Ohio in the National High School Mock

Trial Competition, if one is held, and will receive a stipend from the Ohio Center for Law-

Related Education to help defray expenses for national competition. If the state champion

team decides to represent Ohio in the National High School Mock Trial Competition, all

state championship team members MUST be given the option of attending. If a team

member is unable to attend for any reason, a written note must be provided to OCLRE by

the student and the principal of the participating high school before the stipend will be sent.

OCLRE understands that the winning team may need to add members to complete a

roster for the national competition, and team members may be added as needed from the

winning school. If team members are added, they must be confirmed by contacting

OCLRE before the stipend will be sent. The winning team should contact OCLRE

following the state competition to receive further information.

II. Competition Day Logistics

A. Teachers must report to the registration table to register the team and to turn in an official team

roster. Teams will receive score sheets upon check-in at the district, regional and state

competition. Please fill out your team’s relevant information on ONE score sheet when

playing Plaintiff and TWO score sheets when playing Defense. Upon meeting with the other

team you will exchange score sheets and fill in the needed information before the judges meet

with you. DO NOT SEPARATE THE SCORESHEET COPIES. Score sheets must be filled

out identifying team members and their roles. Teams will receive their courtroom assignment

after the roster is turned in at registration.

B. Teams will fill out the score sheets prior to the pretrial conference. This requires the

cooperation of teams, advisors, and legal advisors.

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C. Teams (including team and legal advisors and others associated with and supporting the

competing teams) may not observe other trials but team members may view their own team

members’ trials when they themselves are not competing.

D. Teams may videotape their own trials at the presiding judge’s discretion. Videos may be shared

only with the teams featured in the specific videos.

E. Teams may not use a laptop computer, tablet, phone or other similar device during the Mock

Trial competition.

F. The competition will run as scheduled RAIN or SHINE. The only way to guarantee that a team will compete is to arrive at an open competition site. Teams travel to and from Mock

Trial at their own risk, and each team’s advisor must determine whether it is safe for the team

to travel to the competition site. The Ohio Center for Law-Related Education is not

responsible for the safety of team members who travel to or from the Mock Trial competition.

Teams MUST immediately contact the OCLRE office and the district/regional/state

coordinator if weather or any other reason prevents their participation. In the event that a

significant number of teams are not able to compete due to weather at the district or regional

competitions, the OCLRE will make an effort to provide a suitable make-up competition for

those teams, but cannot guarantee this will occur. If a make-up competition occurs, it will be

scheduled within seven days of the original competition date established by OCLRE and teams

may have to travel and compete on a weekend. If a team drops out of competition after district

or regional schedules have been released, the team must fax the Drop Form to both OCLRE

and the district or regional coordinator.

G. If a situation develops whereby a team is left without an opponent, e.g. their scheduled

opponent withdraws from the competition at the last moment, teams already competing at that

site will be expected to fill in. If a team can play both sides at the same time, it will be assigned

to do so and then the team members are finished for the day. The second round will be

shortened by one trial. If there are no teams that can fill in, then a third trial will be scheduled

between the two teams that were left without opponents.

H. All students should wear a nametag (name only) so the judges can identify them. Witnesses

should wear the name of the character they play. All others should wear their own names. It is

the responsibility of the team to bring nametags with them.

I. Team and legal advisors are the ONLY individuals from each team who may approach a site

district/regional/state coordinator or volunteer with questions or concerns.

III. Eligibility for Competition

A. Teams entering the Ohio Mock Trial Competition will be guided in the current case by a team

advisor and an attorney, both of whom shall be rostered. The Ohio Center for Law-Related

Education believes the teams should be teacher-driven to insure that educational standards are

met. The attorney enriches the students’ knowledge by providing essential in-depth

understanding of the law and its role in democracy. Teams wishing to make an exception must

apply in writing to the OCLRE staff. Decisions will be made by the OCLRE Board of

Trustees.

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B. An official Competition Registration Form, team roster, signed behavior standards form and

registration fee for each team must be returned to the OCLRE office postmarked by Friday,

December 4, 2015. A confirmation will be sent from OCLRE to the email address on the

registration form. If the competition registration form and roster are returned AFTER Friday,

December 4, 2015 each team registered will be penalized a late registration fee of $30. If the

Competition Registration Form is returned AFTER Monday, January 4, 2016 the team will be

able to compete only on a space available basis and, if allowed to compete, will be penalized a

late registration fee of $30. If no spaces become available, the entire registration fee will be

returned to the team. A team roster is required to complete the registration process. Team

rosters must be submitted online via www.oclre.org by January 4, 2016 in order for that team to

be assigned to a competition site. Teams that submit rosters after this date will only be able to

compete on a space available basis.

C. It is understood that changes to the team roster may occur due to unforeseen circumstances.

Please send in a revised roster as it becomes available. Team advisors though are NOT allowed

to switch team members from the same school between teams if those teams are assigned to

different competition sites AFTER the district placements are announced on Friday, January 8,

2016. No roster additions will be permitted for ANY reason after the district competition

occurring on Friday, January 29, 2016 though advisors are able to drop team members if

necessary. If you must update your roster after sending in your registration form please mail, e-

mail or fax a revised roster to the OCLRE office, and we will accommodate you to the best of

our ability.

D. A school may enter more than one team. Every effort will be made to accommodate second,

third or more teams, although teams who are able to travel may be assigned to travel to other

competition sites. All teams will be matched at random at district, regional and state

competitions with the exception that two teams that play each other in one trial cannot be

paired against each other in the following trial. If possible, no more than 50% of teams in a

district competition site will be from the same school. If the majority of the teams assigned to

one competition site are from the same school, the Center will make an effort to select a

team(s) at random to travel to a Center selected location to compete.

E. In order to compete, all teams must be accompanied on site, at the district, regional and state

competitions, by a teacher or school official, legal advisor or other designated adult. If a school

has more than one team, each team must be subject to the supervision of a designated adult

who can adequately supervise the team's behavior. While the supervisor does not need to be in

the room at all times, he or she must be available to respond promptly if there is a need. The

adult shall be listed on the team roster as the "designated adult supervisor." Failure to comply

with this rule may, at the discretion of the coordinator in charge of the competition, be grounds

for disqualification.

F. The Center can, upon request, make revisions to materials and the competition format to

accommodate students with I.E.P.’s and/or 504 plans.

IV. Team Membership and Roles

A. A mock trial team may be a school or a community team and consists of a minimum of five to

a maximum of eleven students (including alternates) on the official roster from the same high

school (if the team is affiliated with a high school), a team advisor, and a legal advisor. A

community team is a mock trial team which consists of students from a single high school or

multiple high schools which does not sponsor a mock trial team. A community team may only

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exist with the approval of OCLRE. The team will have two attorneys (two different students),

two witnesses (two different students), and a bailiff/timekeeper, playing Plaintiff and Defense

sides of the case. If for any reason, including illness or other commitments, your team drops

below the minimum number of students (five) your team will forfeit its right to continue in the

competition. This is without exception. An individual student can be listed and serve on only

one team. Members of the team must be listed on the Official Team Roster that is available

online. Only those students listed on the Official Team Roster may participate in District,

Regional and State Competition. Although the team members must remain the same between

the District, Regional and State competition, the members may change the parts they play. It is

strongly suggested that a school submit a complete roster of eleven team members. A student

at a school which does not have a mock trial team may compete at another area high school or

join a community program with permission of OCLRE. A student from a school that has a

mock trial team may compete on a community team provided that no more than 50 percent of

the students on the community team are from a school with a mock trial team. No student may

participate on both a school and community team.

A student attending a career and/or technical school that sponsors a mock trial team whose

home school also sponsors a mock trial team may participate on either, but not both, teams.

B. A student may play one role per side. Students may change roles when presenting the

other side of the case. The roles are as follows:

Plaintiff Defense

Attorney Attorney

Attorney Attorney

Witness Witness

Witness Witness

Bailiff and/or Timekeeper (Official) Timekeeper (to assist

with running clock)

Each team must call and question two witnesses. Each team must have a student

serve as bailiff & timekeeper during the trial. Each team must use two attorneys for

each side played. Each attorney must conduct a direct and cross-examination and

an opening or closing statement. Only the attorney who conducts the direct

examination of witnesses may raise objections during the cross-examination of that

witness.

1. All team members and any props or uniforms must pass through local courtroom

security. As a general rule, courtroom security will not allow any weapon or object that

looks like a weapon into the courthouse. Be sure to leave adequate time and be

prepared to comply with courthouse security.

2. A timekeeper will be supplied by both teams and must use ONLY the provided time

cards in the competition manual, timekeeper’s sheet and two stopwatches. If a time

keeping discrepancy of more than 15 seconds is discovered between the plaintiff and

defense teams’ timekeepers, the timekeepers should notify the presiding judge as soon

as the discrepancy is discovered. In this event, one of the timekeepers should stand,

wait to be recognized, and say “Your honor, we have a time discrepancy of more than

15 seconds.” The presiding judge will ask the nature of the discrepancy and then rule

on the discrepancy before the trial continues. Once the presiding judge rules, the

timekeepers shall synchronize their stop watches to match the ruling of the presiding

judge. The decisions of the presiding judge regarding timing disputes are final, and no

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timekeeping disputes will be entertained after the trial has concluded. Timing will

begin at the Opening Statement, after the introductions are made.

C. The student presentations should be the work product of the students themselves, guided,

of course, by the teacher and legal advisor. It is important that presentations be the

student’s work rather than having the student simply memorize the words prepared by an

adult.

V. Legal Advisors

A. Teachers and legal advisors should work together to prepare the team for competition. The

Ohio Center for Law-Related Education will help locate a local attorney, judge, or legal

professional, if asked. A legal advisor must be rostered. A legal advisor may not serve as an

advisor for more than one school.

B. A legal advisor can help the team as a constructive observer and critical teacher listening,

suggesting, and demonstrating to the team. A legal advisor should:

1. Discuss the legal issues raised in the case;

2. Answer questions that students may have concerning general trial practices;

3. Explain the reasons for the sequence of events/procedures found in the trial;

4. Listen to the students’ approach to the case;

5. Discuss general strategies and raise key questions regarding the enactment;

6. Explain the role of judges and the decision-making process

VI. Judging and Scoring Guidelines

A. Every effort will be made to provide each trial with a three judge panel, all of whom will

complete score sheets. In some instances a trial may have to move forward with only two

judges. If this scenario occurs, and the two judges split on which team won the trial, the judges

will add up each team’s total points. If a split still persists, the scoring judge’s decision will be

the determining score. The judicial panel will hear the trial as a “bench trial.” This is not a jury

trial and students should address the Court and not a jury. One judge will serve as the

presiding judge and will control the courtroom and rule on motions and objections. The other

judges will serve as scoring judges and evaluate the team and individual performances. All

attempts will be made not to have the same judicial panel assigned to judge the same team

more than one time.

B. All judges will receive a bench brief, competition rules and scoring procedures.

C. If judicial robes are available, judicial panelists are asked to wear the robe during competition.

D. Only the presiding judge is to speak during a trial. The presiding judge’s comments are limited

to ruling on objections and do not include questioning witnesses or counsel.

E. The trial will be judged based on individual and team performance, not the merits of the case.

F. Attorney and witness awards will be based on the scoring judges’ points added together and are

not to be considered as “consolation” prizes. If there is a tie between the scoring judges’

points on a three judge panel, the Presiding Judge’s points will be considered to break

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the tie. If a tie still exists, the scoring judges will make the decision based on a general

consensus. In a two judge panel the attorney and witness awards will be based on both

judges points added together. If a tie exists on a two judge panel, the scoring judge will

decide the winner.

Scoring Process

1. Each judge will evaluate each team member on a scale of 1-10. The team will be

scored on a 1-10 point scale for its overall performance.

a. At the district, regional and state trials, each judge will score individual and

team performances using whole numbers only. The team that earns the

most points on an individual judge’s score sheet is the winner of that

ballot. A judge CANNOT have a tie between the two teams. If both

scoring judges agree on the winner, that team will advance. If the scoring

judges do not agree on the winner, the presiding judge’s ballot will also be

considered, with the team receiving the majority of the three ballots

winning the trial.

b. All teams who win both of their trials, determined by receiving two ballots

per trial, will advance in competition from districts to regionals and

regionals to states.

c. At the state competition, teams will be eliminated after they lose one trial,

though OCLRE retains the authority to allow each team to compete in two

trials depending on the number of teams advancing to the state

competition. Each scoring judge will score individual and team

performances (must use whole numbers) and add the points at the end of

the trial. A judge CANNOT have a tie between the two teams. If both

scoring judges agree on the winner, that team will advance. If the scoring

judge ballots are split, the presiding judge ballot will determine which team

wins and therefore advances.

SCORING JUDGE RUBRIC VII. Scoring Benchmarks

A. Scoring Judge Rubric

1. Attorney Performance Indicators:

Advocacy skills: creative, organized and convincing presentation

Understanding of legal issues: ability to apply law and facts to case

Oratorical skills: poised, able to think on feet, extemporaneous delivery

Demeanor/Professionalism/Civility

Mastery of trial technique: effective use of objections, appropriate form of

questioning, ability to recognize and rehabilitate own weaknesses, mitigate

opponent’s good points

Did not ask questions that called for an unfair extrapolation from the witness

Did not make excessive, unnecessary objections when the invention of fact

had no material impact.

Opening statement: provided case overview, identified theory of the case,

discussed the burden of proof, stated the relief requested and was non-

argumentative

Closing argument: continued theory of the case introduced in opening

statement, summarized the evidence, applied the applicable law, discussed

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the burden of proof, concentrated on the important – not the trivial, and

overall was persuasive

Complies with Competition Rules 2. Witness Performance Indicators:

Knowledge of case facts and theory of team’s case

Observant of courtroom decorum

Believability of characterization and convincing in testimony

Avoided unnecessarily long and/or non-responsive answers on cross

examination

Articulate and responsive

Did not make unfair extrapolations

Complies with Competition Rules

Points, Performance and Evaluation Criteria 9-10 Excellent: Exhibits mastery of all procedural and substantive elements. Significantly

advances team effort.

7-8 Good: Proficient in most procedural and substantive elements. Helps team on the

whole.

5-6 Fair: Moderately comfortable with procedural and substantive elements of the trial

but contains some imprecise use of trial elements or lacks polish.

3-4 Weak: Does not advance team effort. Minimal comprehension of procedural and

substantive trial elements.

1-2 Poor: No evidence of procedural and substantive trial elements.

3. Team Effort Indicators:

Did the team establish a credible theme for its argument?

Did the team select appropriate witnesses to prove the argument?

Was witness examination organized?

Did witness examination develop the argument?

Was the team’s case carefully crafted and skillfully delivered?

Complies with Competition Rules

4. Penalties

If a majority of the judging panel determines that there has been a material violation of a

competition rule that affected the fairness of the trial, 10 points shall be deducted from the

offending team’s score on each judge’s score-sheet. If the panel believes that a 10-point

penalty is insufficient given the seriousness of the violation, the panel shall consult with the

Competition Committee, which may impose additional sanctions including, but not limited

to, disqualification. One example of a material rules violation warranting a serious penalty

would be communication between team members and their teacher or legal advisor,

whether through signals, notes, or electronically. All objections must be made before the

presiding judge retires to deliberate. After that, complaints may be made only by the

academic advisor after the competition in writing using the complaint form. Such

complaints will not alter the decisions of the judicial panel.

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PART TWO

PROCEDURAL RULES OF MOCK TRIAL COMPETITION

I. Trial Rules and Procedures

A. Preparation

The case and competition sections of the Ohio Mock Trial notebook contain all materials

necessary to participate in the competition. Students playing the roles of attorneys may

make appropriate use of the case materials, including the legal briefs, the Judge’s Order

and all of the witness statements, subject to all other applicable rules of the mock trial

competition. However, this does not include the case introduction, which is not

considered a formal part of the case materials. For purposes of the mock trial, all

documentary facts are stipulated as admissible evidence so they need not be formally

introduced in court. Supplemental materials are also provided to help teachers teach the

case and explain the legal issues and procedures involved. These materials may not be

introduced into the trial; they are for educational purposes only.

If a legal citation is referred to in the case, it may be utilized in development of the legal

theory and cited. However, only facts and information given about that citation in the case

materials may be communicated to the court.

For example, if the Defendant’s brief states,

“The Fourth Amendment to the United States Constitution protects a person from

uninvited governmental intrusions when that person has a legitimate expectation of

privacy that society is willing to recognize as reasonable. Katz v. United States, 389

U.S. 347 (1967); O’Connor v. Ortega, 480 U.S. 709 (1987),”

and the case law provided in Mock Trial Case materials includes Katz but not O’Connor,

then teams may use the full Katz case. However, they may not use any part of O’Connor

which is not quoted or summarized by the case materials.

It is the responsibility of the mock trial team to present and advocate the law and

facts of the case to the judges. As in real life, the mock trial team should not assume judges

know the facts of the case.

B. Time Limits 1. A trial is scheduled for two hours including all activities beginning with the pretrial

conference and ending with the closing of court. The presiding judge will enforce

the time limit and may, at his/her discretion, grant a time extension in the interest

of fairness.

2. Each team must supply a student timekeeper. However, the team playing the

Plaintiff side will supply the Official Timekeeper. Both teams may flash the cards

provided in the manual in such a way that all participants can see them. 3. Timing will begin at the Opening Statement, after the introductions are made. 4. If a time-keeping discrepancy of more than 15 seconds is discovered between the

plaintiff and defense teams’ timekeepers, the timekeepers should notify the

presiding judge as soon as the discrepancy is discovered. In this event, one of the

timekeepers should stand, wait to be recognized, and say “Your honor, we have a

time discrepancy of more than 15 seconds.” The presiding judge will ask the

nature of the discrepancy and then rule on the discrepancy before the trial

continues. Once the presiding judge rules, the timekeepers shall synchronize their

stop watches to match the ruling of the presiding judge. The decisions of the

presiding judge regarding timing disputes are final, and no timekeeping disputes

will be entertained after the trial has concluded.

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5. The time clock will stop for objections and responses.

6. The timekeeper will guide the judge’s comments by showing a 1:00 minute card

and a stop card 11 minutes and 12 minutes into the judge’s comments.

C. Courtroom Setting 1. Plaintiff counsel on the right (facing bench).

2. Defendant’s counsel on the left (facing bench).

3. Witnesses behind counsel tables.

4. Judges on the bench (or, if necessary, in the jury box).

5. Bailiff in front of the bench.

6. The Timekeepers (unless also acting as bailiff) and video camera person

in the jury box, if possible.

7. Teachers and legal advisors behind the teams.

D. Conduct During Trial and Trial Sequence 1. The presiding judge controls the courtroom. S/he may ask anyone to leave, if

necessary. Teams may videotape their own trials at the presiding judge’s

discretion. Videos may be shared only with the teams featured in the specific

videos.

2. Until closing arguments have concluded, team attorneys may communicate only

with each other. During the post-trial objection phase of the trial, attorneys may

communicate with the witnesses, bailiff and timekeeper performing in the actual

round. However, none of the performing team members may communicate in any

way with teachers, legal advisors, team members not performing in that round or

any other observers once the judicial panelists enter the courtroom and the bailiff

opens the court. This restriction includes breaks during the trial. 3. If a team prepares a third witness for trial that they do not call, that third witness

may not participate in the trial in any way including, but not limited to, sitting with

the other witnesses and conferring during the trial.

4. Attorneys may speak from a lectern in the center of the courtroom, if one is

available. Lecterns or other furnishings may not be moved into or out of any

courtroom at any time. The Plaintiff’s side is responsible for returning the lectern

and chairs to original position inside the courtroom following the trial. At the

discretion of the presiding judge, attorneys may walk about the courtroom. The

preference of the presiding judge should be raised and determined at the pre-trial

conference.

5. No furnishing/equipment may be moved into the courtroom. Not all courtrooms

are equipped with the same furnishings; therefore, blackboards and other visual

aids may not be used. The rule on exhibits prevails.

6. The trial, including judges’ comments, should not last longer than two hours.

7. Preparing Ballots for Pretrial Conference

Prior to the pre-trial conference, both teams roster the ballots for the round. This

requires the teams to disclose which witnesses they will be calling. Teams must

also disclose which segment of the trial each attorney will perform. All information

will be recorded in the (3) three ballots provided (2) two for the scoring judges and

(1) one for the presiding judge. These completed ballots will be given to the

judicial panel at the pre-trial.

8. Pretrial Conference (10 minutes)

Student attorneys will participate in a pretrial conference with their judicial

panelists. Teachers, legal advisors and/or designated adult supervisors are

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encouraged to attend. This brief orientation will include a discussion of

competition rules and any questions raised by the participants. No motions will be

entertained during the pre-trial conference. Pretrial conference may occur at the

judge’s bench or in a separate room, if available, at the judges’ discretion. Rostered

score sheets will be given to the judicial panel at the pre-trial. The Official

Timekeeper will be identified and all time cards approved by the presiding judge.

9. Opening the Court

When the judicial panelists enter the courtroom, the bailiff opens the court by

saying:

“All rise. Hear ye, hear ye, the U.S. District Court for the Middle District

of Ohio [or whatever the name of the court may be], Mock City, Ohio [or

whatever town in which the court is located] is open pursuant to

adjournment. All having business before this honorable court draw near,

give attention, and you shall be heard. You may be seated.”

10. Opening Statements (4 minutes maximum per statement)

The presiding judge should ask counsel for the Plaintiff to make an opening

statement. Plaintiff counsel should introduce themselves and their team members

and the roles they are playing and then present the opening statement. The same

procedure is used with Defendant’s counsel. The timekeeper will stop and then

reset the stopwatch to zero after opening statements.

11. Swearing in Witnesses

a. The bailiff swears in with:

“Will all witnesses and parties who are to give testimony in these

proceedings please step to the front?”

b. Then the bailiff holds up his/her right hand and says:

“Please raise your right hand. Do you solemnly swear that the

testimony you are about to give is the truth, the whole truth, and

nothing but the truth and your testimony will comply with the

Rules of the Ohio Mock Trial Competition?”

c. Witnesses answer and sit down. They will remain in the courtroom

during the trial.

d. No motion for separation of witnesses will be entertained.

12. Testimony of Witnesses (Direct/redirect 20 minutes; Cross/re-Cross 18 minutes)

a. Counsel for the Plaintiff and Defense will each call two witnesses. Plaintiff

attorneys must call plaintiff witnesses and Defense attorneys must call

defense witnesses.

b. Counsel for the Plaintiff will present their case first. The presiding judge

will ask counsel for Plaintiff to call the first witness. The witness will then

testify in the following examination sequence:

Direct

Cross

Re-Direct

Re-Cross

When the Plaintiff’s counsel calls the second witness, the witness will be

called to the stand and the procedure repeated.

c. The presiding judge will then ask counsel for Defense to call

their first witness. Defense follows the same procedure as the Plaintiff.

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d. Witnesses are bound by their written statements and should not be

assumed to have knowledge of facts set forth in the legal briefs, Judge’s

Order, the statements of other witnesses.

e. Witness statements may be used by counsel to impeach a witness or

refresh a witness’s memory in accordance with the Mock Trial Simplified

Rules of Evidence. Witnesses may not, however, bring witness statements

or notes to use as a trial aid during testimony.

f. Fair extrapolations are permitted only during cross-examination if they are

(i) consistent with the facts contained in the case materials and (ii) do not

materially affect the witness’s testimony. If a witness invents an answer that

is likely to affect the outcome of the trial, the opposition may object.

Teams that intentionally and frequently stray outside the case materials

will be penalized.

g. If an attorney who is cross-examining a witness asks a question,

the answer to which is not included in the witness’s written statement or

deposition, the witness is free to “create” an answer as long as it is not

contrary to the statement. If the answer is contrary to the statement, the

cross-examination attorney may impeach the witness.

13. Exhibits:

Only exhibits that are part of the case materials may be used as visual aids.

If used, the exact page from the case materials may be reproduced on 8 ½ x 11

paper, but not bound in plastic or modified in any way. The trial proceedings are

governed by the Simplified Ohio Rules of Evidence found in this casebook.

14. Closing Arguments (5 minutes maximum each, with an additional 2 minutes

Plaintiff rebuttal)

The presiding judge will allow attorneys two minutes (no longer) before closing

arguments to incorporate results from cross or to collect their thoughts. During

this time the timekeepers will stop both stopwatches and reset to zero. No one

shall leave the courtroom and all rules on communication during the trial prevail.

The presiding judge will ask Plaintiff’s and Defendant’s counsel if they are ready to

present his/her closing arguments. Counsel for the Plaintiff will present his/her

closing argument first, followed by Defense’s closing argument. Counsel for the

Plaintiff has the option of a two minute rebuttal after Defense’s closing argument.

These two minutes do not have to be requested in advance. The optional rebuttal

is limited to the scope of the Defense’s closing argument.

15. Objections During the Trial

In addition to evidentiary objections, objections may be made during the trial by an

attorney who believes that any rule set forth in the Rules of Competition has been

violated. For example, if an exhibit is mounted or modified, the other team’s

attorney may state an objection. Similarly, if an attorney observes what appears to

be communication between a team and their teacher during trial, the attorney may

state an objection. In making these objections, the procedure set forth for stating

evidentiary objections (Simplified Ohio Rules of Evidence and Common

Objections) should be followed. As with evidentiary objections, the objection must

be made at the time of the claimed violation, and the attorneys knew or should

have known of the violation. No objections may be raised during opening

statements or closing arguments. The presiding judge may make rulings as appear

appropriate, including prohibiting use of an exhibit that has been modified,

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requiring compliance with the rule, admonishing individuals or teams, deducting

penalty points from the team’s score (such deductions to be done only by the

entire panel during post-trial deliberations;), etc. All judges will not interpret the

rules and guidelines the same way. The judge’s decision, however, is final, and no

appeals procedure is available. The clock stops for objections and judge’s ruling.

16. Post-Trial Objections

After closing arguments are completed, and after the scoring judges have been

excused to begin deliberation in chambers, the presiding judge will ask, “Does

either team have serious reason to believe that a material violation of any rule has

occurred during this trial? I will remain on the bench for three minutes, during

which time any protest or objection may be brought to my attention by a team

attorney. The team attorneys may communicate with all performing team

members (witnesses, bailiff and timekeeper) involved in this actual round but may

not communicate in any way with legal advisors, teachers, or anyone outside their

performing team members.”

a. Motions for directed verdict or dismissal of the case are not

permitted.

b. Objections that could have been raised during the trial, including

evidentiary objections, may not be raised at this time.

If no objection is made within three minutes, the presiding judge will mark his/her

score sheet and then retire to assist with deliberations. If there is an objection, one

of the attorneys for the team will stand and state the objection and the ground for

objection. The judge may conduct an inquiry in the manner s/he deems

appropriate; the judge in his/her discretion may solicit a response and/or inquire

further into the facts. The presiding judge does not announce a finding but retires

to assist with deliberations. The presiding judge then consults with the scoring

judges and may consult with a member of the OCLRE staff.

17. Gross Rules Violation

If a majority of the judging panel determines that there has been a material

violation of competition rules that affected the fairness of the trial, 5 points shall be

deducted from the offending team’s score on each judge’s score-sheet. If the panel

believes that a 5-point penalty is insufficient given the seriousness of the violation,

the panel shall consult with the Competition Committee, which may impose

additional sanctions including but not limited to disqualification. One example of a

material rules violation warranting a serious penalty would be communication

between team members and their teacher or legal advisor, whether through signals,

notes, or electronically. All objections must be made before the presiding judge

retires to deliberate; after that, complaints may be made only after the competition

in writing using the complaint form and such complaints will not alter the decisions

of the judicial panel.

18. Deliberation

Judicial panelists retire to chambers to add their ballots and discuss remarks to the

teams. Scoring judges will also add points to determine the recipients of the

outstanding witness and outstanding attorney awards. The Presiding Judge Final

Tally Sheet and ALL three competition score sheets will be completed

immediately after each trial by the two scoring judges and presiding judge and

returned to the competition coordinator. Judges may not hang on to score sheets

between trials.

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19. Conclusion of Trial

The bailiff calls court back in session with:

“All rise. Court is now back in session.”

After the judges are seated, the bailiff says:

“You may be seated.”

20. Debriefing and Announcement of Outstanding Witness and Attorney Awards

The presiding judge will provide debriefing comments on the strengths and

weaknesses of each team’s performance. The debrief should be precise, and last

no more than 12 minutes. The timekeeper will give the judge a one minute

warning and then a “stop.”

a. Any penalties assessed on a team will be announced.

b. The scoring judges will announce the outstanding witness and attorney

awards, discuss the highlights of their performances, and present their

certificates.

c. The winning team and scoring information will not be announced.

Results will be announced and posted by the Competition Coordinator at

the end of the district and regional competition and at the conclusion of

appropriate rounds of state competition. The official competition score

sheet may be posted by the district/regional coordinator at the end of the

competition. After the district competition, score sheets from the district

competition will be sent to the teams advancing to the regional

competition. Individual team score sheets for all teams from all levels of

competition will be provided no later than April 12, 2016, one month after

the end of the state competition.

d. Decisions of the judicial panel are final. Fill out an official competition

complaint form and send it to OCLRE. The staff will investigate and

answer the complaint.

21. Closing of Court

a. The presiding judge will recognize and thank the teachers, legal

advisors, students, and families for their support and will turn the court

back to the bailiff.

b. The bailiff closes the official proceeding with:

“All rise. This honorable court is hereby adjourned.”

c. The plaintiff team is responsible for leaving the courtroom in the same

condition as it was found. Both teams are responsible for taking their own

papers and notebooks out and disposing of them properly.

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II. Condensed Trial Sequence and Time Guidelines (Running Clock):

Part of Trial Minutes

Pre-trial conference 10

Opening Statement – Plaintiff 4

Opening Statement – Defense 4

Direct and Re-Direct (2 witnesses) 20

Cross and Re-Cross (2 witnesses) 18

Direct and Re-Direct (2 witnesses) 20

Cross and Re-Cross (2 witnesses) 18

Intermission to gather thoughts 2

Closing Statement – Plaintiff 5

Closing Statement – Defense 5

Rebuttal – Plaintiff only (optional) 2

Subtotal 108

Comments 12

TOTAL 120 = 2 HOURS

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PART THREE

SIMPLIFIED OHIO RULES OF EVIDENCE

Rules Unique to Mock Trial

I. Invention of Facts and Extrapolation (special rules for the Ohio Mock Trial Competition)

The object of these rules is to prevent a team from “creating” facts not in the material to gain an

unfair advantage over the opposing team.

Invention of Facts - Direct Examination. On direct examination the witness is limited to the facts

given in his/her own written statement. If the witness goes beyond the facts given (adds new facts

or speculates about facts), the testimony may be objected to by the opposing counsel as speculation

or as invention of facts outside the case materials. If a witness testifies in contradiction of a fact

given in the witness statement, opposing counsel should impeach the witness’s testimony during

cross-examination. [See also, Competition Instructions, “Testimony of Witnesses—Guidelines.”]

Invention of Facts – Cross Examination. If on cross-examination a witness is asked a question, the

answer to which is not contained in the facts given in the witness statement, the witness may

respond with any answer, so long as it is responsive to the question, does not contain unnecessary

elaboration beyond the scope of the witness statement, and does not contradict the witness

statement. An answer which is unresponsive or unnecessarily elaborate may be objected to by the

cross-examining attorney. An answer which is contrary to the witness statement may be impeached

by the cross-examining attorney. [See also, Competition Instructions, “Testimony of Witnesses—

Guidelines”].

Example

The limits on fair extrapolation apply only to cross examination, and no extrapolation is permitted on direct examination.

An accident reconstruction expert (Mr. Smith) has testified that the accident was caused by the failure of the

defendant to maintain an assured clear distance ahead. The defendant has claimed that he was undergoing

a type of epileptic seizure when the driver ahead stopped abruptly. The accident reconstructionist testifies

that even a person experiencing this kind of epileptic seizure would have seen the car brake abruptly.

1. Unnecessary Elaboration

Cross-examiner: “But you’re not a neurologist, are you, Mr. Smith?”

Mr. Smith: “As a matter of fact, I have a Ph.D. in Neurology from Johns

Hopkins University and have written extensively on epileptic seizures.”

If there is no hint in the case materials that Mr. Smith has expertise in neurology, it would

be regarded as an unnecessary elaboration

Elaboration necessitated by the Question

Cross-examiner: “Have you testified before as an expert in accident reconstruction,

or is this the first time that you have ever testified?”

Mr. Smith: “I have testified in 27 trials”

It may be reasonable for the expert to claim he has testified in 27 trials, if his age and

background make that plausible, even if there is nothing in the case materials to reflect an

answer to that question. It is an elaboration necessitated by the question.

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II. Scope of Examinations Scope of Direct Examination An attorney questions the witness she/he has called to stand. On

direct examination an attorney may inquire as to any relevant facts of which the witness has first-

hand, personal knowledge.

Scope of Cross Examination The scope of cross-examination shall not be limited to the scope

of the direct examination, but may inquire into any relevant facts or matters contained in the

witness’s statement, including all reasonable inferences that can be drawn from those facts and

matters, and may inquire into any omissions from the witness statement that are otherwise material

and admissible.

Re-Direct Examination After cross examination, additional questions may be asked by the direct

examining attorney, but such questions are limited to matters raised by the opposing attorney on

cross-examination. Just as on direct examination, leading questions are not permitted on redirect.

Comment: If the credibility or reputation for truthfulness of the witness has been attacked

successfully on cross-examination, the attorney whose witness has been damaged may wish to ask

questions to “rehabilitate” the witness (save the witness’s truth-telling image). Redirect examination

may also be used to strengthen a positive fact that was weakened by the cross-examination.

Redirect examination is not required. A good rule to follow is: if it isn’t broken, don’t fix it.

Examples: 1. Cross Examination of physician called by Plaintiff in murder case:

Attorney: Doctor, you testified on direct that the defendant died of arsenic

poisoning, correct?

Witness: Yes.

Attorney: Isn’t it true that you have a deposition in which you testified that you did

not know the cause of death?

Witness: Yes, that’s true.

Re-Direct: Attorney: Doctor, why did you testify in your deposition that you did not know the

defendant’s cause of death?

Witness: I had not yet received all of the test results which allowed me to conclude

the defendant died of arsenic poisoning.

2. Cross Examination: Attorney: Doctor, isn’t it true the result of test X points away from a finding of

arsenic poisoning?

Witness: Yes.

Re-Direct: Attorney: Doctor, why did you conclude that the defendant

died of arsenic poisoning even though test X pointed away from arsenic poisoning?

Witness: Because all of the other test results so overwhelmingly pointed toward arsenic

poisoning, and because test X isn’t always reliable.

Comment: Neither one of these redirect examinations should have been conducted unless the

attorney had a good idea of what the witness’s response would be. As a general rule, it is not advisable to

ask a question if you don’t know what the answer will be.

Re-Cross Examination After redirect, additional questions may be asked by the cross examining attorney,

but such questions are limited to matters raised on redirect examination. Re-cross is not mandatory and

should not be used simply to repeat points that have already been made.

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Example:

Assume the cross-examination in the example above has occurred. A good re-cross-examination would be

the following:

Attorney: Doctor, isn’t it true that when you gave your deposition you had received all of the test

results except the result of test X?

Witness: Yes, that’s true.

Comment: The cross-examining attorney would then argue in the closing argument that the doctor

testified in his deposition that he did not know the cause of death at that time and the only

test result received after the deposition pointed away from arsenic poisoning.

III. Hostile Witness Rule- Mode and Order of Interrogation and Presentation

1. Control by court. The court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation

effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect

witnesses from harassment or undue embarrassment.

2. Scope of cross-examination. Cross-examination shall be permitted on all relevant matters and

matters affecting credibility.

3. Leading questions. Leading questions should not be used on the direct examination of a witness

except as may be necessary to develop the testimony. Ordinarily, leading questions should be

permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness

identified with an adverse party, interrogation may be by leading questions.

4. When is a witness hostile? “Where a witness is an unwilling one, hostile to the party calling him, or

stands in such a situation as to make him necessarily adverse to such party, his examination in chief

may be allowed to assume something of the form of cross-examination, at least to the extent of allowing

leading questions to be put to him.” 44 OH Jurisprudence 3d 241, “hostile witness” §. 869

The issue is whether the witness’s hostile attitude toward the party calling him/her is likely to make the

witness reluctant to volunteer facts helpful to that party. Hostility may be demonstrated by the witness’s

demeanor in the courtroom, by other facts and circumstances, or by a combination thereof. Whether a

witness is hostile is confided to the sound discretion of the presiding judge.

IV. Voir Dire

Voir Dire examination of a witness is not permitted

V. No offer of proof

No offers of proof may be requested or tendered

Article I. GENERAL PROVISIONS

RULE 101. Scope of Rules: Applicability; Privileges; Exceptions

Applicability. These rules govern proceedings in the Ohio Mock Trial Program and are the only

basis for objections in the Ohio Mock Trial Program.

No directed verdict or dismissal motion may be entertained.

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Article IV. RELEVANCY AND ITS LIMITS

RULE 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.

RULE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

Evidence which is not relevant is not admissible.

RULE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue Delay

(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.

(B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is

substantially outweighed by considerations of undue delay, or needless presentation of cumulative

evidence.

RULE 404. Character

Character evidence. Evidence of a person's character, other than his/her character for truthfulness,

may not be introduced. Evidence about the character of a party for truthfulness or untruthfulness is

only admissible if the party testifies.

Article VI. WITNESSES

RULE 601. General Rule of Competency

Every person is competent to be a witness.

RULE 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding

that S/he has personal knowledge of the matter. Evidence to prove personal knowledge may, but

need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703,

relating to opinion testimony by expert witnesses.

RULE 607. Who May Impeach

(A) Who may impeach. The credibility of a witness may be attacked by any party except that the

credibility of a witness may be attacked by the party calling the witness by means of a prior

inconsistent statement only upon a showing of surprise and affirmative damage. This exception

does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.

RULE 608. Evidence of Character and Conduct of Witness

Opinion and reputation evidence of character. The credibility of a witness may be attacked or

supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the

evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful

character is admissible only after the character of the witness for truthfulness has been attacked by

opinion or reputation evidence or otherwise

RULE 611. Mode and Order of Interrogation and Presentation

(A) Control by court. The court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation

effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect

witnesses from harassment or undue embarrassment.

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(B) Scope of cross-examination. For Ohio Mock Trial Rules, see Simplified Ohio Rules of

Evidence (Section II).

(C) Leading questions. Leading questions should not be used on the direct examination of a

witness. Leading questions are permitted on cross-examination. When a party calls a hostile witness

interrogation may be by leading questions.

RULE 612. Writing Used to Refresh Memory

If a witness uses a writing to refresh his memory while testifying, an adverse party is entitled to have

the writing produced at the hearing. S/he is also entitled to inspect it, to cross-examine the witness

thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

RULE 616. Bias of Witness

In addition to other methods, a witness may be impeached by any of the following methods:

(A) Bias. Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach

the witness either by examination of the witness or by extrinsic evidence.

(B) Sensory or mental defect. A defect of capacity, ability, or opportunity to observe,

remember, or relate may be shown to impeach the witness either by examination of the

witness or by extrinsic evidence.

(C) Specific contradiction. Facts contradicting a witness's testimony may be shown for the

purpose of impeaching the witness's testimony.

Article VII. OPINIONS AND EXPERT TESTIMONY

RULE 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, his/her testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (1) rationally based on the perception of the

witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in

issue.

RULE 702. Testimony by Experts

A witness may testify as an expert if: (1) The witness is qualified as an expert by specialized

knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

and (2) The witness's testimony is based on reliable scientific, technical, or other specialized

information.

RULE 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be

those perceived by him/her or admitted in evidence at the hearing.

RULE 704. Opinion on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely

because it embraces an ultimate issue to be decided by the trier of fact.

RULE 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give his/her reasons therefore after

disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical

question or otherwise.

Article VIII. HEARSAY

RULE 801. Definitions

The following definitions apply under this article:

28

(A) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a

person, if it is intended by him as an assertion.

(B) Declarant. A "declarant" is a person who makes a statement.

(C) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(D) Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at trial or hearing and is

subject to cross-examination concerning the statement, and the statement is (a)

inconsistent with his testimony, and was given under oath subject to cross-

examination by the party against whom the statement is offered and subject to the

penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b)

consistent with his testimony and is offered to rebut an express or implied charge

against him of recent fabrication or improper influence or motive, or (c) one of

identification of a person soon after perceiving him, if the circumstances

demonstrate the reliability of the prior identification.

(2) Admission by party-opponent. The statement is offered against a party and is

(a) his own statement, in either his individual or a representative capacity, or (b) a

statement of which he has manifested his adoption or belief in its truth, or (c) a

statement by a person authorized by him to make a statement concerning the

subject, or (d) a statement by his agent or servant concerning a matter within the

scope of his agency or employment, made during the existence of the relationship,

or (e) a statement by a co-conspirator of a party during the course and in

furtherance of the conspiracy upon independent proof of the conspiracy.

RULE 802. Hearsay Rule

Testimony which is hearsay is inadmissible.

RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a

witness:

(1) Present sense impression. A statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately thereafter

unless circumstances indicate lack of trustworthiness.

(2) Excited utterance. A statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.

(3) Then existing, mental, emotional, or physical condition. A statement of the declarant's

then existing state of mind, emotion, sensation, or physical condition (such as intent, plan,

motive, design, mental feeling, pain, and bodily health), but not including a statement of

memory or belief to prove the fact remembered or believed unless it relates to the

execution, revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for

purposes of medical diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(6) Records of regularly conducted activity. A memorandum, report, record, or data

compilation, in any form, of acts, events, or conditions, made at or near the time by, or

from information transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice of that business

activity to make the memorandum, report, record, or data compilation, all as shown by

testimony.

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RULE 804. Hearsay Exceptions; Declarant Unavailable

(A) Definition of unavailability. "Unavailability as a witness" includes any of the following situations

in which the declarant:

(4) is unable to be present or to testify at the hearing because of death or then-existing

physical or mental illness or infirmity;

(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is

unavailable as a witness:

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil

action or proceeding, a statement made by a declarant, while believing that his or her death

was imminent, concerning the cause or circumstances of what the declarant believed to be

his or her impending death.

(3) Statement against interest. A statement that was at the time of its making so far contrary

to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant

to civil or criminal liability, or to render invalid a claim by the declarant against another,

that a reasonable person in the declarant's position would not have made the statement

unless the declarant believed it to be true. A statement tending to expose the declarant to

criminal liability, whether offered to exculpate or inculpate the accused, is not admissible

unless corroborating circumstances clearly indicate the trustworthiness of the statement.

RULE 805. Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the

combined statements conforms with an exception to the hearsay rule provided in these rules.

Article IX. AUTHENTICATION AND IDENTIFICATION

RULE 901. Requirement of Authentication or Identification

(A) General provision. The requirement of authentication or identification as a condition precedent

to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.

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PART FOUR

EXAMPLES OF COMMON OBJECTIONS

AND TRIAL PROCEDURE

I. Procedure for Objections

A. An attorney may object if s/he believes that the opposing attorney is attempting to introduce

improper evidence or is violating the Simplified Rules of Evidence. The attorney wishing to object

should stand up and object at the time of the claimed violation. The attorney should state the

reason for the objection and, if possible, cite by rule number the specific rule of evidence that has

been violated. (Note: Only the attorney who questions a witness may object to the questions posed

to that witness by opposing counsel.) The attorney who asked the question may then make a

statement about why the question is proper. The judge will then decide whether a question or

answer must be discarded because it has violated a simplified rule of evidence (objection sustained),

or whether to allow the question or answer to remain in the trial record (objection overruled).

Objections should be made as soon as possible; however, an attorney is allowed to finish his/her

question before an objection is made. Any objection that is not made at the time of the claimed

violation is waived. When an objection has been sustained, the attorney who asked the question

may attempt to rephrase that question. Judges may make rulings that seem wrong to you. Also,

different judges may rule differently on the same objection. Always accept the judge’s ruling

graciously and courteously. Do not argue the point further after a ruling has been made.

II. Examples of Common Objections

The following are examples of common objections. This is not a complete list. Any objection properly

based on the simplified Ohio rules of evidence is permitted:

1. Irrelevant evidence: "Objection. This testimony is irrelevant."

2. Irrelevant evidence that should be excluded: "Objection. This is unfairly prejudicial (or a waste

of time) and should be excluded because…"

3. Leading question: "Objection. Counsel is leading the witness." (Remember, leading is only

objectionable if done on direct or redirect examination).

4. Narrative Answer: "Objection, this witness's answer is narrative" Commonly used on direct

examination when a witness's answer has gone beyond the scope of the initial question.

5. Non-responsive Answer: "The witness is nonresponsive, your honor. I ask that this answer be

stricken from the record." The witness's answer does not answer the question being asked.

Commonly used by the cross examining attorney during cross examination.

Example: Attorney: Isn’t it true that you hit student B?

Witness: Student B hit me first. S/he was asking for it, acting like a jerk and

humiliating me in front of all my friends.

Attorney: Your Honor, I move to strike the witness’s answer as non-

responsive and ask that s/he be instructed to answer the question

asked.

(Another option is to impeach the witness with prior testimony if s/he testified in

his his/her deposition that s/he hit student B.)

6. Beyond the scope of cross or re-direct: "Objection. Counsel is asking the witness about matters

that were not raised during the cross or redirect examination."

7. Improper character testimony: "Objection. This is testimony about character that does not

relate to truthfulness or untruthfulness."

8. Improper opinion: "Objection. Counsel is asking the witness to give an expert opinion, and this

31

witness has not been qualified as an expert." OR "Objection. Counsel’s question calls for an

opinion which would not be helpful to understanding the witness’s testimony (or which is not

rationally based upon what the witness perceived.)"

9. Invention of facts: "Your Honor, we object on the basis that opposing counsel’s question seeks

evidence that is outside the record in this case. Witness X has never given testimony in this case

concerning…" If the witness gives testimony on direct that is beyond the scope of materials, the

cross-examining attorney should say "move to strike the testimony concerning…as beyond the

scope of the case materials."

Example: If witness X did not personally see arsenic in the medicine cabinet of the

decedent’s wife, he cannot testify that she had arsenic in her medicine cabinet.

10. Lack of personal knowledge: “Objection.” The witness has no personal knowledge that would

allow her to answer this question.

11. Speculation: "Objection. The witness is speculating/this question calls for speculation." A hybrid

between lack of personal knowledge and improper opinion.

12. Hearsay: "Objection. Counsel’s question calls for hearsay." If a hearsay

response could not be anticipated from the question, or if a hearsay response is given before the

attorney has a chance to object, the attorney should say, "I ask that the witness’s answer be stricken

from the record on the basis of hearsay."

Example: Witness X testifies that “Mrs. Smith said that the decedent’s wife

had a bottle of arsenic in her medicine cabinet.” This testimony is inadmissible if

offered to prove that the decedent’s wife had a bottle of arsenic in her medicine

cabinet, since it is being offered to prove the truth of the matter asserted in the out-

of-court statement by Mrs. Smith. If, however, the testimony is offered to prove

that Mrs. Smith can speak English, then the testimony is not hearsay because it is

not offered to prove the truth of the matter asserted in the out-of-court statement.

However, the testimony is only admissible if Mrs. Smith’s ability to speak English

is relevant to the case.

Comment:

Why should the complicated and confusing condition be added that the out-of-court statement is

only hearsay when “offered for the truth of the matter asserted?” The answer is that hearsay is

considered untrustworthy because the speaker of the out-of-court statement has not been placed

under oath and cannot be cross-examined concerning his/her credibility. In the previous example,

Mrs. Smith cannot be cross-examined concerning her statement that the decedent’s wife had a

bottle of arsenic in her medicine cabinet, since witness X, and not Mrs. Smith has been called to

give this testimony. However, witness X has been placed under oath and can be cross-examined

about whether Mrs. Smith actually made this statement, thus demonstrating that she could speak

English. When offered to prove that Mrs. Smith could speak English, witness X’s testimony about

her out-of-court statement is not hearsay.

Remember, there are responses to many of these objections that the examining attorney can make after

the objection is raised and he or she is recognized by the judge to respond.

III. Other Trial Procedures

A. Opening Statement

An opening statement has been defined as “a concise statement of [the party’s] claim [or defense]

and a brief statement of [the party’s] evidence to support it.” Judge Richard M. Markus, Trial Handbook for Ohio Lawyers (Thomson-West, 2006 Edition), §7:1, p. 305. A party seeking

32

relief should indicate the nature of the relief sought. It may be useful to acknowledge the

applicable burden, or burdens, of proof. An opening statement is not supposed to be

argumentative, and should be used by attorneys to present their theories of the case. Legal

authorities can be cited, to show what issue or issues are before the court for decision. It is

appropriate to lay out what the attorney expects the evidence will show, but the wise attorney will

be conservative in this regard.

The most important aspect of the opening statement is to frame the issues. The attorney wants to

frame the issues so that there is a compelling narrative (the theory of the case) in his/hers

client’s favor into which all the favorable facts and all favorable legal authority neatly fit. A well-

crafted opening statement tells a story that will dominate the trial that follows.

B. Closing Statements

Closing statements, “are permitted for the purpose of aiding the [finder of fact] in analyzing all

the evidence and assisting it in determining the facts of the case.” Markus, op. cit., §35:1, at p.

1013. In a bench trial (to a judge, rather than to a jury), the closing statement is also the time to

argue the law to the judge.

The attorney should point out to the court that his/her side has proven everything that it

promised to prove, while pointing out that the other side failed to prove what it promised it

would. It can now be shown how the evidence that was presented fits into the narrative (the

theory of the case) that was introduced in opening statement, which, in turn, applying the law,

compels a result in that side’s favor. Remind the court what that favorable result is; i.e., the

particular relief your client is seeking from the court.

On occasion, your evidence won’t survive an objection, or the attorney’s best witness will be

forced to equivocate on an important point on cross-examination. When this occurs adjustments

have to be made to the closing statement to fit the evidence actually presented in the trial.

The closing statements are the final opportunities to persuade the judge. In oral presentation, the

statements having the most impact are the first statements, and the final statements. The attorney

should try to make the first and last things said in closing argument the most vivid and persuasive,

while reserving those points that have less emotional impact, but need to be said, for the middle

of the statement.

C. Direct Examination - Form of Questions.

Witnesses should be asked neutral questions and may not be asked leading questions on direct

examination. Neutral questions are open-ended questions that do not suggest the answer and that

usually invite the witness to give a narrative response. A leading question is one that suggests to

the witness the answer desired by the examining attorney and often suggests a “yes” or “no”

answer.

Examples: 1. Proper direct examination questions: a. What did you see?

b. What happened next?

2. Leading questions (not permitted on direct): a. Isn’t it true that you saw the defendant run into the alley?

b. After you saw the defendant run into the alley, you called the

police, didn’t you?

33

D. Cross Examination - Form of Questions

An attorney should usually, if not always, ask leading questions when cross-examining the

opponent’s witness. Open-ended questions tend to evoke a narrative answer, such as “why” or

“explain,” and should be avoided. (Leading questions are not permitted on direct examination

because it is thought to be unfair for an attorney to suggest answers to a witness whose testimony

is already considered to favor that attorney’s side of the case. Leading questions are encouraged

on cross-examination because witnesses called by the opposing side may be reluctant to admit

facts that favor the cross-examining attorney’s side of the case.) However, it is not a violation of

this rule to ask a non-leading question on cross-examination.

Examples: 1. Good leading cross examination question:

Isn’t it true that it was almost completely dark outside when you say you saw the

defendant run into the alley? (This is a good question where the witness’s

statement says it was “almost completely dark,” but a potentially dangerous

question when the statement says it was “getting pretty dark out.”

2. Poor cross examination question: How dark was it when you saw the defendant run into the alley? (the witness could

answer, “It wasn’t completely dark. I could see him.”)

E. Opinion Testimony by Non-Experts

For mock trial purposes, most witnesses are non-experts. If a witness is a non-expert, the

witness’s testimony in the form of opinions is limited to opinions that are rationally based on what

the witness saw or heard and that are helpful in explaining the witness’s testimony. Non-experts

(lay witnesses) are considered qualified to reach certain types of conclusions or opinions about

matters which do not require experience or knowledge beyond that of the average lay person.

Note, however, that the opinion must be rationally based on what the witness saw or heard and

must be helpful in understanding the witness’s testimony.

Examples:

1. Witness X, a non-expert, may testify that the defendant appeared under

the influence of alcohol. However, it must be shown that this opinion is

rationally based on witness X’s observations by bringing out the facts

underlying the opinion, e.g., the defendant was stumbling; his breath

smelled of alcohol; his speech was slurred. If witness X thinks the

defendant was under the influence because he had a strange look in his

eye, then the opinion should not be permitted because it is not sufficiently

rational and has potential for undue prejudice.

2. Witness X, a non-expert, may not testify that in his opinion the decedent

died of arsenic poisoning, since this is not a matter that is within the

general knowledge of lay persons. Only an expert, such as a forensic

pathologist, is qualified to render such an opinion.

F. Opinion Testimony by Experts

Only persons who are shown to be experts at trial may give opinions on questions that require

special knowledge beyond that of ordinary lay persons. An expert must be qualified by the

attorney for the party for whom the expert is testifying. Before a witness can testify as an expert,

and give opinions in the area of his/her expertise, a foundation must be laid for his/her testimony

by introducing his/her qualifications into evidence. In a sense, every witness takes the stand as a

non-expert, and the questioning attorney must then establish the witness’s expertise to the court’s

34

satisfaction for the witness to be able to testify as an expert. This is usually accomplished by

asking the expert himself/herself about his/her background, training and experience.

Example: Attorney: Doctor, please tell the jurors about your educational background.

Witness: I attended Harvard College and Harvard Medical School.

Attorney: Do you practice in any particular area of medicine?

Witness: I am board-certified forensic pathologist. I have been a forensic

pathologist for 28 years.

It is up to the court to decide whether a witness is qualified to testify as an expert on a particular

topic.

G. Refreshing Recollection (Rule 612)

If a witness is unable to recall information in his/her witness statement or contradicts the

witness statement, the attorney calling the witness may use the witness statement to help the

witness remember.

Example: Witness cannot recall what happened after the defendant ran into the

alley or contradicts witness statement on this point:

1. Mr./ Mrs. Witness, do you recall giving a statement in this case?

2. Your Honor may I approach the witness? (Permission is granted.)

I’d like to show you a portion of the summary of your statement, and ask

you to review the first two paragraphs on page three.

3. Having had an opportunity to review your statement, do you now

recall what happened after the defendant ran into the alley?

H. Impeachment (Rule 607)

On cross-examination, the cross-examining attorney may impeach the witness. Impeachment is a

cross-examination technique used to demonstrate that the witness should not be believed.

Impeachment is accomplished by asking questions which demonstrate either (1) that the witness

has now changed his/her story from statements or testimony given by the witness prior to the trial,

or (2) that the witness’s trial testimony should not be believed because the witness is a dishonest

and untruthful person.

Impeachment differs from the refreshing recollection technique. Refreshing recollection is used

during direct examination to steer a favorable, but forgetful, witness back into the beaten path.

Impeachment is a cross-examination technique used to discredit a witness’s testimony.

Examples: 1. Impeachment with prior inconsistent statement:

Attorney: Mr. Jones, you testified on direct that you

saw the two cars before they actually collided, correct?

Witness: Yes.

Attorney: You gave a deposition in this case a few months

ago, correct?

Witness: Yes.

Attorney: Before you gave that deposition, you were sworn in

by the bailiff to tell the truth, weren’t you?

Witness: Yes.

Attorney: Mr. Jones, in your deposition, you testified that the first

thing that drew your attention to the collision was when

35

you heard a loud crash, isn’t that true?

Witness: I don’t remember saying that.

Attorney: Your Honor, may I approach the witness?

(Permission is granted.) Mr. Jones, I’m handing you the

summary of your deposition and I’ll ask you to read along

as I read the second full paragraph on page two, “I heard

a loud crash and I looked over and saw that the two cars

had just collided. This was the first time I actually saw the

two cars.” Did I read that correctly?

Witness: Yes.

Attorney: Thank you Mr. Jones.

2. Impeachment with prior dishonest conduct: Attorney: Student X, isn’t it true that last fall you were suspended

from school for three days for cheating on a test.

Witness: Yes.

I. Introduction of Physical Evidence (Rule 901)

Generally, physical evidence (objects) must be relevant and authentic (shown to be what they

appear to be) in order to be admissible. Exhibits are generally presented to the court through

witness testimony. Specifically, for mock trial purposes, all exhibits contained in the case

materials have already been stipulated as admissible evidence and may not be altered to give

either side an unfair advantage. This means that both sides have agreed that all exhibits are

admitted. Therefore, it is not necessary to demonstrate through a witness’s testimony that an

exhibit is authentic, an accurate representation or admissible, nor is it necessary to move the

court for the admission of the physical evidence.

Example: Attorney: Your honor, we have marked this one-page document as

Plaintiff Exhibit 1 (or Defendant’s Exhibit A). Let the record

reflect that I am showing Plaintiff Exhibit 1 (or Defendant’s

Exhibit A) to opposing counsel. (Exhibit is shown to opposing

counsel.) Your Honor, may I approach the witness?

Judge: You may.

Attorney: Witness X, I’m showing you what has been marked as

Plaintiff Exhibit 1. Do you recognize that exhibit?

Witness: Yes.

Attorney: Could you explain to the Court what that is?

Witness: It’s a map of the accident scene. (At this point, the attorney

may ask the witness any additional relevant questions about the

exhibit, and then give it to the judge.

36

Competition

Forms

37

2016 MOCK TRIAL SCORING ERROR NOTIFICATION

Please submit this form within 3 days of competition. Scoring errors will only be reviewed by OCLRE if this form is received. OCLRE will only take action if the affected team would have advanced to the next level of competition (Regional or State) had the error not occurred.

Please summarize the error in 100 words or less:

Teacher:____________________________Legal Advisor____________________

School & Team Name_________________County:_________________________

Competition Round 1 2 Opponent:_______________________

38

2016 MOCK TRIAL TEACHER/COACH COMPLAINT FORM (to be filed with within 3 days of the competition)

Define the problem in 100 words or less:

Suggest future solutions for the problem:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

Teacher:_________________________Legal Advisor______________________

School_____________________________ County:_________________________

This is not an appeals process; the judge’s decision is final. However, your remarks and solutions will be

carefully considered and brought before the Competition Committee, if warranted.

39

Seeking Nominations for the Lori Urogdy-Eiler Award

for Coaching Excellence in Mock Trial

Presented annually, the Lori Urogdy-Eiler Award recognizes a Mock Trial coach, legal advisor,

volunteer or administrator whose dedication and selflessness in giving their time, as well as their

knowledge and skills, makes a difference in the life of a student. Award recipients are those who

regularly inspire and motivate teams to outstanding performance. Eligible candidates have also

demonstrated an ability to connect with team members as individuals, helping them to overcome

obstacles to success and leading them to achieve an individual "personal best." Please send

nominations by July 1, 2016 to Lisa Eschleman, OCLRE Executive Director, by e-mail to

leschleman@oclre.org or standard mail to OCLRE, 1700 Lake Shore Drive, Columbus, Ohio

43204.

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

40

State Of

Harmony

v.

Riley Green

41

SPECIAL INSTRUCTIONS

1. For purposes of the 2016 Ohio Mock Trial competition, the defense of

legal justification for the use of force will proceed as an affirmative defense

and the Defendant has the burden to prove the defense by a

preponderance of the evidence.

2. The scope of this mock trial is limited only to the affirmative defense of

legal justification for the use of force and not the underlying charge of

felonious assault filed against the Defendant.

3. The Defendant will go first in this mock trial and will present evidence in

support of the affirmative defense of legal justification of use of force.

Then, the Prosecution State of Harmony will present evidence in

opposition to the affirmative defense.

4. All rules included in the “Simplified Ohio Rules of Evidence” in the case

materials will apply.

5. Pursuant to Rule IV B 1, teams are not permitted to bring to the courthouse any

weapons, real, play, or otherwise for any purpose.

42

IN THE COURT OF COMMON PLEAS,

BUCKEYE COUNTY, HARMONY

IN THE MATTER OF: : Case No. 2015-CR- 2030

:

Riley Green : Judge Hegedus

ORDER FOR HEARING

By stipulation of the parties and for judicial economy and efficiencies, this matter is

bifurcated and will first proceed, pursuant to Harmony Revised Code Section 2901.05, on

Defendant’s affirmative defense that the actions giving rise to the Indictment herein were legally

justified. If necessary, a trial on the underlying charge of felonious assault will be proceed to

trial, which will be scheduled by further Order of the Court. A hearing to address Defendant’s

affirmative defense is scheduled to begin on March 29, 2016.

SO ORDERED

_____________________

Judge Hegedus

43

IN THE COURT OF COMMON PLEAS,

BUCKEYE COUNTY, HARMONY

IN THE MATTER OF: : Case No. 2015-CR- 2030

:

Riley Green : Judge Hegedus

STIPULATIONS

The parties in the above entitled action hereby stipulate and agree as follows:

1. Defendant has properly waived any claim that his/her actions are

protected by qualified immunity.

2. The State has waived any firearms specification enhancement in

this matter.

3. For judicial economy and efficiencies, this matter will proceed first

on Defendant’s affirmative defense that the actions giving rise to the

charge of felonious assault were legally justified. If there is a finding that

the Defendant’s actions were not legally justified, a trial on the charge of

felonious assault will be scheduled at a later date as Ordered by the

Court.

4. The Defendant has the burden to prove the affirmative defense of legal

justification by a preponderance of the evidence. Should this matter

proceed to a trial on the charge of felonious assault, the Prosecution will

bear the burden to prove said charge beyond a reasonable doubt.

5. The Defendant, Riley Green will present evidence first in this hearing.

Then, the Prosecution State of Harmony will present evidence.

6. Harmony Revised Code Section 2903.11 regarding felonious assault and legal

justification as an affirmative defense is attached to this case file.

44

APPLICABLE STATUTES

Harmony Revised Code 2903.11 – Felonious Assault

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by

means of a deadly weapon or dangerous ordnance.

(B) Whoever violates this section is guilty of felonious assault. Felonious assault is a felony

of the second degree.

Harmony Revised Code 2901.05 Peace Officer’s Use of Force – Affirmative Defenses

(A) A peace officer, or any person whom he has summoned or directed to assist him, need not

retreat or desist from efforts to make a lawful arrest because of resistance or threatened

resistance. He is justified in the use of any force which he reasonably believes to be

necessary to affect the arrest and of any force which he reasonable believes to be

necessary to defend himself or another from bodily harm.

a. A peace officer is justified in the use of any force likely to cause death or great

bodily harm only when he reasonably believes that such force is necessary to

prevent death or great bodily harm to himself or such other person.

(B) Peace officer’s justified use of force constitutes an affirmative defense to criminal

charges, for which the defendant bears the burden of proof by a preponderance of the

evidence.

45

IN THE COURT OF COMMON PLEAS, BUCKEYE COUNTY, HARMONY

CRIMINAL DIVISION

State of Harmony,

:

:

Plaintiff, :

:

vs. : Case No. 2015-CR- 2030

:

Riley Green, :

:

Judge Hegedus

Defendant. :

DEFENDANT'S PREHEARING BRIEF

1. INTRODUCTION

On September 20, 2015, the State of Harmony indicted Riley Green with one count of

Felonious Assault, alleging that on or about July 25, 2015, Riley Green did knowingly cause or

attempt to cause serious physical harm to AJ Bryant, and/or did cause or attempt to cause

physical harm to AJ Bryant by means of a deadly weapon (to wit: a firearm). The Court has

bifurcated the issues in this matter and will first proceed with an evidentiary hearing limited to

the Defendant’s affirmative defense that he/she was legally justified in using deadly force.

Pursuant to Harmony Code: 2901.05, the Defendant has the burden to prove the affirmative

defense by a preponderance of the evidence. The Court has ordered that the Defendant will

present evidence first. If the Defendant fails to prove by a preponderance of the evidence that he

was legally justified in using deadly force, the Court will schedule a date for trial on the charge

of Felonious Assault.

The defense will prove by a preponderance of the evidence that Riley Green had

perceived a reasonable threat to the safety of the officer and the public then used the appropriate

level of force to deter or eliminate the threat of harm to the public and the officer. Because

Officer Green was legally justified in using deadly force, the Court must acquit Officer Green of

Felonious Assault.

46

FACTS

Riley Green has been employed as a police officer for eight years. Riley Green has

worked for the City of Buckeye Police Department as a patrol officer for the last year. As an

officer with the Buckeye Police Department, Riley Green received training on the appropriate

use of force. The Buckeye Police Department has policies governing the use of force by officers.

The policy dictates officers “shall use deadly force to protect self or another from danger of

imminent death or serious bodily injury” and before employing deadly force, the officer should

“precede any use of deadly force by issuing a verbal warning.” (Section 18.646 P. 2)

On July 25, 2015, Riley Green was working in his/her capacity as a patrol officer with the

City of Buckeye Police Department and had been assigned to motorcycle patrol. Officer Green

received a dispatch of an armed robbery at Swifties, located at 123 Buckeye Parkway, at

approximately 18:20. The dispatch said an individual wearing an armor disguise and carrying a

bow and arrow had threatened and shot arrows at customers inside Swifties. It was also reported

that one of the customers had been hit with an arrow and was bleeding profusely. Officer Green

arrived at Swifties at 18:22pm, approximately two minutes after receiving the dispatch. Officer

Green was driving a police department-issued motorcycle and wearing the department uniform

of the day. Officer Green had turned his lights and sirens on while driving to the scene and kept

the lights and sirens on at the scene. When Officer Green arrived on scene, an individual who

appeared to match the description provided by dispatch was standing in the parking lot. This

individual, later identified as AJ Bryant, appeared to be involved in an argument with a second

person, later identified as Sam Jones. A crowd was gathered to the side of the parking lot and

Officer Green heard someone scream. AJ Bryant was pointing the bow and arrow at Sam Jones

47

and appeared ready to fire. Officer Green ordered AJ Bryant to put down the bow and arrow,

yelling “drop your weapon.” AJ Bryant did not comply with Officer Green’s order and Officer

Green repeated the order three times, each time yelling at AJ Bryant “drop your weapon.”

Instead of complying with Officer Green’s order and dropping the bow and arrow, AJ Bryant

instead turned towards Officer Green with the bow and arrow pointed at Officer Green. Officer

Green then fired two shots from the department-issued firearm, striking AJ Bryant twice in the

right shoulder. AJ Bryant fell to the ground and no longer posed a threat to Officer Green, Sam

Jones, and the crowd in the parking lot.

Other officers responded to the scene and discovered the arrows Bryant was firing had

foam tips at the end instead of arrow heads to prevent harm when striking an object. Officers

also discovered AJ Bryant was en route to the Buckeye Medieval Faire and AJ Bryant’s armor

apparel was for the Faire’s costume contest. Upon concluding the investigation, it was discovered

the woman who had originally been reported to be bleeding profusely from her head had a small

cut and what was believed to be blood on the ground came from a broken jar of salsa.

The State indicted Officer Riley Green for Felonious Assault. The defense will prove

that while Officer Green did in fact detain AJ Bryant by shooting Bryant, this was not an

unreasonable seizure because Officer Green was legally justified in the shooting. For these

reasons, the defense will ask this Court find Officer Riley Green not guilty of the charges.

2. LAW AND ARGUMENT

The Fourth Amendment protects citizens from “unreasonable searches and seizures.” A

police officer who has restricted the ability of a citizen to walk away has in effect seized that

individual for purposes of the Fourth Amendment. Tennessee v. Garner (1985), 105 S. Ct. 1694,

48

1699. However, all apprehensions by police do not violate the Fourth Amendment. Rather, an

apprehension must be found to be unreasonable. Restricting an individual’s movement by use of

deadly force is considered an apprehension for the purposes of the Fourth Amendment. Similar

to any other apprehension by police, use of deadly force to make the apprehension is permitted

when reasonable. Id. When determining whether the apprehension is reasonable, the Court must

analyze the totality of the circumstances. Plumhoff v. Richard (2014), 134 S.Ct. 2012, 2020.

The key question in determining if the use of force was legally justified is whether or not the

officer’s actions are “objectively reasonable” in light of the totality of the circumstances.

Graham v. Connor (1989), 490 U.S. 386, 397.

An apprehension effectuated by the use of deadly force can be reasonable under the

Fourth Amendment. In Garner, the Court laid out a three factor test to determine the

reasonableness of the use of deadly force. First, the fact finder must determine whether the

suspect posed an immediate threat of serious physical harm to others or officers. The second

factor for consideration is whether the suspect committed a crime involving the infliction or

threatened infliction of serious physical harm such that the suspect being at large represents an

inherent risk to the general public. The third factor is whether the officer either issued a warning

or could not feasibly have issued a warning before the use of deadly force. Garner, supra, 1701.

However, the reasonableness of the officer must be evaluated from the perspective of a

reasonable officer on the scene, not a reasonable officer with the benefit of knowing all the

information after the fact. Graham, supra, 396. Officers often must make split second decisions

that members of the general public do not have to make. These decisions are impacted by the

knowledge of the scene as well as their training and experience as law enforcement

professionals. Id.

49

Here, Officer Green’s actions were objectively reasonable. When Officer Green arrived

at Swifties, Officer Green had received a dispatch report of a robbery in which one of the

individuals was armed with a bow and arrow and had fired an arrow at another customer.

Officer Green arrived on scene to see an individual matching the description given in the

dispatch pointing the bow and arrow at another. AJ Bryant then disobeyed Officer Green’s

orders to “put down the weapon” and turned towards Officer Green, pointing the bow and arrow

at Officer Green.

Under the totality of the circumstances, a reasonable officer would have concluded AJ

Bryant was posing an immediate threat of harm to others, as well as to the responding officer.

Despite officers later learning the Swifties customer supposedly wounded by an arrow and

bleeding in the store was actually hit, but that the “blood” was in fact salsa, based on the

available information when the officer arrived on scene, it was entirely reasonable for the officer

to conclude AJ Bryant had already caused serious physical harm to another. AJ Bryant then

pulled back the arrow as if to fire again at Sam and Officer Green fired his/her weapon to prevent

AJ Bryant from causing further harm to Sam Jones, Officer Green, and the public at large.

At the time Officer Green responded to Swifties on July 25, 2015, it was reasonable for

that officer to conclude AJ Bryant had just committed a crime involving the infliction of serious

physical harm. Chris Abbott reported to 911 dispatchers that AJ Bryant had fired an arrow at a

customer and it was believed that AJ’s co-conspirator, Sam Jones had stolen from the store.

Based on the information provided, it was entirely reasonable for any officer to conclude

probable cause existed that AJ Bryant, in committing or attempting to commit a theft offense or

fleeing immediately after the attempt or commission of a theft offense, did either recklessly

inflict serious physical harm on another and/or have a deadly weapon (bow and arrow) on his/her

50

person and did display and/or brandish and/or indicate possession and/or use the bow and arrow

such that an Aggravated Robbery was committed. Based on the commission of an Aggravated

Robbery and claim that AJ Bryant was armed with a bow and arrow, it was reasonable for an

officer to conclude that AJ Bryant did pose an inherent risk to the general public, especially

given the assertion that AJ Bryant had fired and struck another Swifties customer in the head.

Looking to the third factor laid out in Garner, Officer Green did issue several warnings to

AJ Bryant before employing deadly force. First, Officer Green arrived on scene on a department

motorcycle. While not the standard police cruiser, Officer Green’s motorcycle has clear signage

to indicate it is affiliated with the Buckeye Police Department. The motorcycle also has standard

issued emergency lights and sirens. When responding to the call for service, Officer Green

activated both the emergency lights and sirens and kept both on while making contact with AJ

Bryant. Upon arriving at Swifties and observing the scene, Officer Green immediately ordered

AJ Bryant to “put down the weapon.” However, AJ Bryant did not comply despite repeated

commands and warnings from Officer Green. Officer Green continued to repeat warnings to AJ

Bryant to “put down the weapon” even as AJ Bryant turned towards Officer Green, looking

straight at Officer Green and pointing the bow and arrow at the officer. By the time Officer

Green fired the shots at AJ Bryant, Officer Green had given more warnings than necessary to AJ

Bryant. The lights and sirens alone served to alert everyone on scene to an officer’s presence.

Officer Green’s repeated orders for AJ Bryant to “put down the weapon” were standard police

warnings designed to lessen a dangerous situation and convince a suspect to comply with police.

Based on the totality of the circumstances, Officer Green acted as any reasonable police

officer would have done in Officer Green’s position. While it is unfortunate that AJ Bryant was

harmed in the process, AJ Bryant was not acting in a responsible manner. We now know that AJ

51

Bryant’s outfit was a Renaissance costume and the bow and arrow was a toy with foam arrows at

the end, but to a reasonable officer in a parking lot, AJ Bryant looked like a dangerous person

who had just committed an Aggravated Robbery and was likely to commit additional violent

crimes. AJ Bryant was given repeated opportunities by Officer Green to prevent the situation

from escalating, yet refused to do so. AJ Bryant refused to comply with Officer Green’s

commands and worsened the already tense encounter by pointing what appeared to be a deadly

weapon at Officer Green.

The law protects officers against charges such as Felonious Assault for situations such as

what we have in this case. When the men and women of the Buckeye Police Department go to

work every day, the general public does not want these officers to be thinking they might be

criminally charged as a direct result of their actions. Instead, the general public wants officers to

be concerned with ensuring the safety not only of themselves, but also the public at large. Every

day, officers encounter life and death situations in which they must make a split second decision.

Choose one way and the officer or an innocent bystander may be harmed, choose another way

and the suspect or criminal is harmed. Officers are trained to evaluate the situation as best they

can using all the facts and circumstances available to them and act accordingly.

On July 25, 2015, this is exactly what Officer Green did. Officer Green evaluated the

situation based on all the information relayed through dispatch and what was observed on scene.

Based on the facts and circumstances, Officer Green concluded that failure to shoot AJ Bryant

would result in either harm to a member of the public or harm to him/herself. Looking back of

course, we know this not to be true. We know AJ Bryant could not have caused serious physical

harm or death to Officer Green or the public. However, based on what Officer Green knew at

the time, the perception of a threat and action upon that threat was reasonable.

52

If Officer Green had not acted and allowed AJ Bryant to fire the arrow at Sam Jones and

the arrow was in fact real, there would be a public outcry demonizing Officer Green for not

protecting the public and calling for Officer Green’s termination. Officer Green should not and

cannot be punished under the law for acting as any other reasonable officer in the same situation

would have acted. It is unfair and contrary to the law to project the information we now know

about AJ Bryant and what AJ Bryant was doing at Swifties on July 25, 2015 into the analysis of

whether or not Officer Green was acting in accordance with the training and experience of a

police officer.

53

CONCLUSION

On July 25th, 2015, Officer Riley Green fired two shots at AJ Bryant in an effort to

disarm Bryant because Officer Green reasonably perceived based on all the facts and

circumstances known at the time that AJ Bryant was causing a risk of serious physical harm to

both Officer Green and the public. Looking at the totality of the circumstances, the force

employed by Officer Green was both reasonable and appropriate. Punishing Officer Green for

doing his/her job to protect the public is not only against public policy, but also the law. Officer

Green was legally justified in shooting AJ Bryant and this Court should find accordingly, finding

Officer Riley Green NOT GUILTY of Felonious Assault.

Respectfully Submitted,

/s/ Jake Bridges

________________________________

Jake Bridges 0087252

jbridges@bhlaw.com

Bridges & Haller LLP

123 Lincoln Lane

Columbus, Ohio 43215

Attorney for Defendant

54

IN THE COURT OF COMMON PLEAS OF BUCKEYE COUNTY,

STATE OF HARMONY

State of Harmony,

:

:

Plaintiff, :

:

vs. : Case No. 2015-CR- 2030

:

Riley Green, :

:

Judge Hegedus

Defendant. :

STATE’S PREHEARING BRIEF

The State of Harmony, through its counsel, Daniel Webster, submits the following

Prehearing Brief containing relevant facts and law for the consideration of this Honorable Court.

______________________________

Daniel Webster

Chief Counsel, Violent Crimes

1500 South High Street, 10th Floor

Buckeye, Harmony 39857

Counsel for State of Harmony

I. FACTUAL BACKGROUND

On July 25th, Defendant Riley Green (“Defendant”) shot A.J. Bryant (“Bryant”), a local

teenager who had been enjoying the revelry of Buckeye’s famous Medieval Faire. The City of

Buckeye entrusted Defendant, in his role as a police officer, with additional rights and duties for

the purpose of promoting safety among its citizens. It provided him/her with a service weapon to

protect Bryant--not to cause him/her serious injury without provocation.

55

The Buckeye Medieval Faire is a popular and well-known event in Buckeye, and many

residents attend in medieval attire. Such costumes may include some form of weaponry, but,

pursuant to the Faire’s rules, no attendees are permitted to carry actual dangerous weapons. This

rule is well known throughout Buckeye.

Bryant is a seventeen-year-old high school senior and Faire enthusiast. In fact, he/she

works at the Faire. He/she enjoys immersing him/herself in medieval culture--going as far as co-

founding a high school club for such activities.

During this year’s Faire, Bryant signed up to participate in the costume contest, which

took place on the date in question. As his/her costume, Bryant chose to be an archer and created

a loosely fitting helmet, a chainmail coif covering his/her head and neck, an archer’s tunic, a

metal breastplate, leather greaves to cover his/her shins, and special archer’s footwear. Bryant

also carried a toy bow and arrows with foam tips. The arrows and bow are multicolored but are

primarily pink, purple, and sky blue.

On the night in question, Bryant and his/her friend Sam Jones, another high school

student, were traveling together to the Medieval Faire. Bryant wore his/her archer costume and

began play acting with individuals he/she came across. On at least one occasion, Bryant

pretended to take aim at passers-by with his bow and arrow. Each time, the fellow citizens

would laugh off this gesture, and at no point did anyone feel threatened by Bryant’s actions. On

the way to the Faire, AJ Bryant and Sam Jones stopped at Swifties, a local convenience store, to

buy replacement shoelaces for Bryant’s costume. While in the store, Bryant accidentally hit

another patron with a foam-tipped arrow while acting in medieval character. This caused some

commotion, but Jones helped Bryant leave the store soon after, and Bryant left money for the

shoelaces.

56

Bryant and Jones began to argue in the Swifties parking lot after leaving the store. Jones

was upset at Bryant’s behavior in the store, and Bryant sought to explain himself. At one point,

Bryant drew his bow and arrow to show Jones how it worked, seeking to show how he misfired

and accidentally hit the store patron. This argument lasted several minutes.

Defendant Riley Green, who was on duty at the time, received a call on his dispatch of a

possible armed robbery at Swifties. Upon hearing this call, s/he sped to the scene on his/her

motorcycle and was one of the first to arrive. S/He was not aware that the Medieval Faire was

taking place on that date. Upon arrival, Defendant positioned him/herself approximately ten

yards from Bryant and Jones, whom s/he noticed were arguing. Defendant then alleges that s/he

saw Bryant aim his/her bow and arrow in Jones’s vicinity and/or at others. Defendant shouted

towards Bryant, who, surprised by the new voice yelling at him/her, turned toward Defendant.

Bryant could not see Defendant, however, because his/her helmet shifted as s/he turned. Jones,

who was standing next to Bryant, did not hear or react to Defendant’s command.

Within seconds, Defendant, who had shielded him/herself behind the motorcycle, fired

two rounds, both of which hit Bryant in the arm/shoulder region. Bryant was rushed to the

hospital with serious injuries. Neither Bryant nor Jones clearly heard Defendant issue any clear

command or warning prior to shooting or saw any lights from the motorcycle.

The State has indicted Defendant for felonious assault for his/her actions in discharging

his/her service weapon causing Bryant’s injuries. The evidence will establish that the Defendant

intentionally drew his/her service weapon and fired upon an unarmed seventeen year old without

a reasonable threat of imminent serious harm to him/herself or others. The Defendant claims that

his/her decision to intentionally shoot Bryant using deadly force was legally justified and

therefore s/he should not be held criminally liable for his/her actions. However, the Defendant’s

57

contentions are not supported by either well-established legal precedent or facts as will be

presented at the hearing.

II. LAW AND ARGUMENT

The use of force by law enforcement is subject to the Fourth Amendment prohibition

against “unreasonable searches and seizures.” U.S. Const. In this case, Defendant does not

dispute that deadly force was used, the most intrusive of all forms of seizure, by shooting

Defendant twice in the arm--very close to his torso and vital organs. Bryant was, in fact, injured

seriously—s/he spent significant time in the hospital, and his/her arm was immobilized for an

extended period of time.

Rather, the Defendant seeks to escape culpability for his/her actions by asserting that the

use of deadly force was legally justified.

Pursuant to Harmony Revised Code Section 2901.05 Defendant’s claim that the use of

deadly force was legally justified is an affirmative defense. The parties have stipulated that in

order to prevail, the Defendant bears the burden to prove all elements of the affirmative defense

by a preponderance of the evidence. See Stipulations.

Courts have concluded that the use of deadly force by a police officer may be legally

justified pursuant to the Fourth Amendment only under limited circumstances. Tennessee v.

Garner, 471 U.S. 1, 7 (1985). To comply with the Fourth Amendment, the Court must

determine if the use of force was reasonable. Plumhoff v. Richard, 134 S.Ct. 2012, 2020 (2014).

When determining whether the use of force is reasonable, the Court must analyze the totality of

the circumstances. Plumhoff v. Richard, 134 S. Ct. 2012, 2020 (2014). And, the key question in

determining if the use of force is legally justified is whether or not the officer’s actions are

objectively reasonable in light of the “totality of the circumstances.” Graham v. Connor, 490

58

U.S. 396, 397 (1989). The proper perspective in judging an excessive force claim is that of “a

reasonable officer on the scene” and “at the moment” force was employed. Id.

In Garner, the Court adopted a three factor test to determine if an officer’s use of deadly

force is objectively reasonable under the totality of the circumstances: 1) did the suspect pose an

immediate threat of serious physical harm to others or the officer, 2) did the suspect commit a

crime involving the infliction or threatened infliction of serious physical harm such that there

was an inherent risk to the general public and, 3) did the officer either issue a warning or was it

not feasible to issue a warning before the use of force was issued. Garner, supra, 1701. In this

case, pursuant to the three factor test, the Defendant cannot establish that his/her use of deadly

force was objectively reasonable under a totality of the circumstances presented when he/she

responded to the call and arrived at the parking lot of Swifties.

From his/her arrival on the scene, the Defendant’s actions were not reasonable. The

evidence will establish that the Defendant spent at most, 30 seconds assessing whether Bryant

posed a threat of serious physical harm. Testimony will confirm that 30 seconds is insufficient

and unreasonable pursuant to all of the training the Defendant received.

Additionally, the threat of harm, if any, posed by Bryant was minimal and certainly did

not rise to “a threat of serious physical harm, either to the officer or others.” Garner, 471 U.S. at

11. In particular, the Defendant claims that Bryant posed a threat of serious physical harm to

Defendant and others through his general use of a pink, purple, and blue bow and arrow with

foam-tips. The bow is, in fact, a child’s toy made by the popular “Smoosh” brand, as recognized

by other citizens who had encountered Bryant prior to his/her arrival at Swifties. Defendant was

positioned within--at most--ten yards of Bryant, so s/he had a clear view of this toy and based

59

upon his/her education, training and experience could easily have determined that there simply

was no risk of injury to anyone.

Additionally, no evidence will be presented that the Defendant observed any bystander

was threatened with a serious risk of physical harm. When the Defendant arrived at the scene,

no bystander sought to flag down the officer to report Bryant and in fact, the undisputed

evidence will establish that even when Bryant aimed the bow and arrow while in the parking lot,

no bystander fled the scene or otherwise took cover in an effort to avoid serious bodily harm.

Moreover, no evidence will be presented that Bryant’s actions posed any risk, let alone

serious risk of harm, to the Defendant.

It is undisputed that Bryant was dressed in medieval clothing and there is no assertion

that based upon his personal observations, the Defendant concluded that the clothing was

anything other than a costume. The Defendant is a resident of the City of Buckeye and the Faire

is a well-known and well-attended event with a history of members of the public participating in

a costume contest. Even without being notified by the City of Buckeye Police Department that

the Faire was in progress, the Defendant should have been aware that it was occurring, further

minimizing any perceived threat of serious bodily harm.

In addition, Defendant specifically claims that he fired his/her service weapon because

Bryant turned toward him/her with the toy bow drawn. Assuming, for the sake of argument, that

Defendant’s claim is true, this also fails to justify the use of deadly force. Defendant was

positioned behind the windshield of his motorcycle approximately 30 feet from Bryant. As such,

the Defendant had more than sufficient protection against the discharge of an arrow.

Defendant’s perceived threat of physical harm to him/herself or the public was not objectively

reasonable, and the use of deadly force is, therefore, not justified under the Fourth Amendment.

60

The Defendant also cannot meet the burden to establish the second factor as set forth in

Garner, supra that Bryant committed a crime involving the infliction or threatened infliction of

serious physical harm such that Bryant represented an inherent risk to the general public if he/she

remained at large. Even if the alleged crime to which the Defendant was responding was

robbery, there was no inherent risk to the general public if Bryant remained at large. As noted

above, the “weapon” Bryant allegedly used to “assault” the customer and “rob” the store was a

plastic toy bow with form-tipped arrows. Even if Bryant remained at large, the foam-tipped

arrows could not cause any risk to any member of the public including Bryant’s friend, the

bystanders, or any other person in the City of Buckeye.

Finally, the Defendant will not be able to present sufficient evidence to support the third

factor under Garner, supra, that he/she “issued a warning or could not have feasibly issued a

warning before the use of deadly force.” Both Bryant and Jones will testify that they did not

clearly hear the Defendant issue a command to drop the bow and arrow and did not notice any

police lights prior to the shooting. Further, Defendant never confirmed that Bryant could see

him/her, as his/her helmet clearly was obstructing his/her view of the officer. Under these

circumstances, the Defendant cannot establish a warning was either issued or could not have

feasibility been issued before using deadly force.

61

III. CONCLUSION

Defendant will be unable to meet his/her burden to prove by a preponderance of the

evidence that his/her intentional shooting of a 17 year old teenager holding a toy plastic bow and

arrow was legally justified under the Fourth Amendment prohibition against unreasonable

searches and seizures. As such, the Defendant’s affirmative defense of legal justification for use

of deadly force must fail.

Respectfully submitted,

____________________

JOHN MARSHALL

Prosecuting Attorney

Buckeye County, Harmony

/s/ Daniel Webster

Daniel Webster

Chief Counsel, Violent Crimes

1500 South High Street, 10th Floor

Buckeye, Harmony 39857

Counsel for Prosecution

CERTIFICATE OF SERVICE

The undersigned hereby certifies that copies of the foregoing were sent via Regular U.S.

Mail to _____________________ on this ____ day of ______, 2015.

/s/ Daniel Webster

Daniel Webster

62

Prosecution Witnesses

1. AJ BRYANT (Alleged Victim)

1

My name is AJ Bryant and I am a medieval enthusiast. I know, it’s kind of a 2

nerdy hobby, but I’ve always found that period of history fascinating. Who 3

wouldn’t want to live in a world with knights and archers? Unfortunately, my 4

enthusiasm for all things medieval almost got me killed at the hands of Officer 5

Green. 6

I first started working at the Buckeye Medieval Faire more than a year ago, 7

in the summer of 2014. I had gone to the local library to check out a stack of 8

books on medieval times. Although I had already read most of the books (several 9

times, in fact), I thought it would be fun to spend my summer vacation re-reading 10

them. And as I walked out the front door of the library, I noticed a sign advertising 11

summer work at the Buckeye Medieval Faire. They were hiring for all kinds of 12

positions, and no experience was required. I couldn’t believe my luck. I was 13

already planning on getting a summer job, and of course I loved going to the Faire 14

as a kid, so I thought this would be a perfect place to start! 15

I filled out an application and had an interview with the hiring manager. 16

After considering me for several positions, they eventually hired me to cook and 17

serve giant turkey legs. Even better, I got to wear an authentic medieval costume 18

and get paid to do it! I was so excited about working at the faire that I reread all of 19

the medieval books in the next two days. I also attended a two-day training course 20

63

on speaking like a medieval person. We learned some basic rules like saying “yea” 21

and “nay” (instead of “yes” and “no”); how to greet people (“greetings, good 22

gentles/ladies”); using words like “verily” (truly), “hither” (here), and “perchance” 23

(perhaps) whenever possible; and most importantly, to refer to food as 24

“bellytimber” (food). They also taught us that two or three words were preferable 25

over one word. So, instead of saying “yes,” we were taught to say “yea, methinks 26

so.” My manager also encouraged me to shout when I spoke, because it sounded 27

more medieval to do so. 28

Last year, I served the best bellytimbers in the festival—the giant turkey 29

legs—spoke in authentic medieval language, and dressed as a medieval merchant. 30

I also witnessed daily archery contests, jousts, and mud wrestling. I had such a 31

blast that I lived in character even when I went home and hung out with my 32

friends. They had fun speaking in character, even though they weren’t working at 33

the festival. My friend Sam said that he/she wanted to attend the faire next 34

summer, too. 35

The main event of the faire was the annual costume contest, which was held 36

on the first day. People came from all over Buckeye to win the honor of the “best 37

in show” costume. They had winners in several categories, including best knight, 38

best royal wear, and best jester (usually awarded to the worst-looking costume). I 39

had no idea how competitive the contest was until I saw that there were three times 40

64

as many entrants into the archery costume contest as compared to the other 41

costume contests at the Faire. Last year, the winner of the costume contest was a 42

guy from northern Buckeye who had spent the last several years rounding up an 43

authentic wizard costume. After witnessing the costume contest, I knew that I 44

wanted to be a part of it the next year. 45

The Faire was open the last two weekends of July, and soon after it was time 46

to go back to school. I was sad that I wouldn’t be able to take part in the medieval 47

festivities for another year. All year, I thought I’d wanted to be a knight, and 48

started thinking up my costume. But over winter break I read the Starvation Sports 49

Trilogy, and I knew being an archer would be SO COOL. The nice thing, though, 50

was that I had earned enough money that summer to buy an authentic archer’s 51

costume, which I purchased over the next few months. I call it “authentic” because 52

it was just like what all the books said a medieval archer would have worn. And 53

having witnessed daily medieval archery contests, I knew that my costume was the 54

choice wear of the best archers. 55

My costume consisted of a paladin’s helm (a fancy name for a helmet), a 56

chainmail coif covering my neck and head (but not covering the face), an archer’s 57

tunic, an ergonomic breast plate (to allow for range of motion while shooting a 58

bow and arrow), leather greaves to cover my shins (with an intricate lacing 59

system), and special footwear. The paladin’s helm was so hard to find, I had to 60

65

order it on the internet, and I guess I got the wrong size, because it slides around on 61

my head a lot, but still looks pretty great! I guess I could’ve budgeted better, 62

because with the cost of all the rest of the costume, I didn’t have much left over for 63

the most important part, the bow and arrows! Luckily, my sister babysits for a girl 64

who got a new toy “Smoosh” brand bow and arrow that looked surprisingly 65

realistic. I hoped that the rest of my costume would be so convincing, that no one 66

would notice I had a toy bow and arrow! 67

Because my costume takes about twenty minutes to put on, I dressed at 68

home and drove to the festival in full garb. Well, I didn’t wear the helmet or 69

quiver while driving, but I wore everything else. I didn’t want to risk having it 70

accidentally block my vision while driving. And the quiver was pretty 71

uncomfortable to hang on my back while seated in a car. Nevertheless, I looked 72

exactly like a medieval archer as I drove. Sure, I got a few stares while driving, 73

but I also got a lot of smiles and thumbs-ups along the way. I think most people 74

were pretty impressed with my costume, even if they didn’t know why I was so 75

dressed up. 76

Not a lot of students from my high school are interested in the Medieval 77

Faire, unfortunately. Last year I made some friends at the festival, but not very 78

many of them were my own age. My friend Sam started asking me about 79

LARPing (Live Action Role Playing, for the uninitiated) and the Medieval Faire 80

66

originally when we were in chemistry class together. I told him/her to join the 81

LARPing team, and after Sam didn’t make the Quidditch team, he/she finally 82

decided to take me up on it. S/he’d never really talked to me before this year, but I 83

was glad to have someone at my school be interested in the Faire, too. When I first 84

invited Sam to the faire, he/she said he/she couldn’t really afford to dress up, but 85

was interested in seeing everyone else in their costumes. Sam lives close to the 86

fairgrounds, so he/she told me it would be a good idea to park at his/her house and 87

walk over to the Faire so we wouldn’t have to pay for parking. When I arrived at 88

Sam’s street, I parked and went looking for his/her house. 89

As I walked, I encountered some random people walking on the street. They 90

were dressed in ordinary clothes and didn’t appear to be going to the Faire. 91

Thinking it would be funny, I began to shout in character and pretend they were 92

about to invade my castle. I walked over to one of the men walking, pulled out an 93

arrow, and very lightly shot him in the chest. As designed, the arrow harmlessly 94

bounced off his chest and fell to the ground. He thought it was pretty funny and 95

handed me back my arrow. He asked why I was dressed like an archer, and I told 96

him about the costume contest. 97

He then asked why my “shin thingy” was falling off. With great horror, I 98

looked down and noticed that my left leather greave had nearly fallen off! 99

Embarrassed, I attempted to quickly tighten the lace, but managed only to break 100

67

the lace. Great, just what I needed! I was about an hour from winning the archer’s 101

costume contest and I needed to fix my costume just to get there! 102

When I found Sam’s house, he/she told me there was a Swifties convenience 103

store on the way to the fairgrounds. Sam wasn’t sure if they would have shoelaces, 104

but we could try to find something that might work. I walked into the store 105

wearing my paladin’s helm and carrying my bow and arrow. There were a few 106

other customers in the store, and I began to talk in character about plundering the 107

store. Some of the customers seemed confused, but for the most part they thought 108

it was pretty funny, especially when they saw that they were toy arrows. I walked 109

up and down the aisles until I found the shoelaces. Seeing the pair I wanted, I 110

placed an arrow on my bow and took aim. Unfortunately, just as I was releasing 111

the arrow, my helmet shifted and temporarily blocked my vision, causing my 112

arrow to miss the shoelaces. The arrow traveled quite a distance and struck a 113

middle-aged woman in the back of the head. To make matters worse, she turned 114

around and started screaming at me. She knocked her shopping basket into one of 115

the shelves and knocked several jars of red sauce onto the floor. 116

The customer was cursing at me, and I got a little heated and yelled back at 117

her – not breaking character, of course. From the front of the store, I heard the 118

store owner yell that he/she was going to call the police, but I didn’t really 119

understand why. Sam came running towards me and told me we needed to go. I 120

68

saw that the customer was pretty upset and was picking up a jar. I didn’t know if 121

she wanted to throw it at me or if she was just cleaning up the mess she’d made. 122

Remembering the age-old wisdom that it’s better to live to fight another day, I 123

retreated to the safety of my land—which meant I had to flee the store. As I ran 124

out of the store with the shoelaces, I tossed two dollars on the ground near the 125

store’s entrance—more than enough to pay for the shoelaces. The bottom line is 126

that I didn’t want to stick around in the store any longer than necessary. It was 127

hostile territory. 128

Once we were outside, I saw a group of four people walking down the street. 129

I began to shout at them in character and told them to leave my land, saying that I 130

would defend it with honor should they choose to enter onto it. The group played 131

along at first, challenging me to a duel, and saying they would get their swords 132

(which would never work for that period of history!) While I was still playing with 133

this group, I noticed that Sam was furious. S/he told me that I needed to quit 134

“goofing off.” Sam had gotten very angry. Sam was screaming at me, saying 135

he/she didn’t know what happened inside the store, but I didn’t need to be so 136

stupid. I told Sam that he/she was over-reacting, and showed him/her how the bow 137

and arrow worked, and how easy it was to miss your target. I loaded an arrow, and 138

as I did I heard someone shouting. I couldn’t tell where the voice was coming 139

from, so I turn to look and see who it was. 140

69

As I did so, my helmet shifted and obscured my vision. I don’t remember 141

exactly what happened at that moment, but I’m pretty sure I brought my bow 142

down. The last thing I needed was more trouble. Regardless, less than a second 143

after hearing the screams and shouting, I heard a loud bang and felt an immense 144

pain in my shoulder. Although I don’t remember much else from that moment on, 145

I was apparently shot twice in the shoulder by an overzealous police officer. One 146

of the bullets struck a nerve, causing my legs to collapse beneath me. I was 147

knocked unconscious by the pain moments later. 148

Not only was my breastplate ruined (apparently it wasn’t bulletproof), the 149

paramedics had to cut off my remaining costume to perform medical treatment. 150

My amazing archer’s costume was thus destroyed. Luckily, the bullets missed my 151

heart by inches. I had to have extensive surgery, and remained in the hospital for 152

three weeks. It’s now three months after the incident, and the feeling has mostly 153

returned to my legs. The doctors think I have a good chance of making a full 154

recovery, but only time will tell. 155

Although my memory is a little fuzzy, I’m pretty sure the police officer 156

didn’t turn on their lights or siren. I don’t even remember seeing a police car! I 157

certainly don’t remember hearing or seeing them. Had Officer Green taken just a 158

moment to look at the bow, he/she would have seen that it was a toy and realized 159

that it couldn’t hurt a flea. And had Officer Green seen any of the thousands of 160

70

flyers around town (or read the front page of the newspaper that day), he/she would 161

have noticed that the main event at the Faire (i.e., the costume contest) was taking 162

place that afternoon. I mean, aren’t officers supposed to know about this sort of 163

thing? Instead, he/she chose to shoot first and ask questions later, almost killing 164

me in the process and ensuring that I wouldn’t win the costume contest that year. 165

Hopefully, I will be healthy enough to enter the contest next year. I hope Officer 166

Green gets the book thrown at him/her!167

71

2. SAM JONES (fact witness and AJ Bryant’s companion)

AJ and I were supposed to go to the first day of the Medieval Faire, but we 1

never made it there. Before we arrived at the Faire, AJ was shot by Officer Green. 2

It was supposed to be my first time going and I was extremely excited. I read all of 3

the Game of Throne novels to prepare and joined the school’s LARPing club. 4

LARPing is live-action role-playing. AJ actually introduced me to the sport after I 5

didn’t make the Quidditch team. I didn’t have a costume or anything but AJ had 6

been before. AJ decided to go as an archer this year; and had a really nice 7

costume, with a working bow and arrow. The arrows had a little foam tip, carved 8

out to look like an arrow, so they would bounce off of anything you shot them at, 9

but it could go pretty far, and the bow and arrow looked pretty real for a toy. 10

AJ really takes this medieval stuff seriously, and he/she was determined to 11

win the costume contest this year. AJ was the former president of the Quidditch 12

team but discovered that LARPing was his/her true passion. He/she started the 13

LARPing club this past school year and recruited former wizards to join him/her. 14

Every year at the Medieval Faire, there is a costume contest during the evening on 15

the first night of the festival. Last year, AJ thought he/she would win. He/She 16

dressed up as a wizard and kept walking around with a wand trying to cast spells 17

on people. Even though the costume was really good, AJ didn’t win, so he/she was 18

even more determined to have a great costume and be in character. 19

72

AJ and I have become pretty good friends in the last school year. I attend a 20

pretty great school, and I guess it never really occurred to me how many cool clubs 21

and activities there were to choose from. My first few years of high school, I 22

mostly kept to myself and hung out with the kids from my neighborhood. They 23

were all people I’d grown up with, but once we all got to high school, things 24

changed. They were stealing a lot, a couple of them got into gangs, and some of 25

them are in juvenile detention now. One night, I was with some friends who were 26

shoplifting at the local Swifties convenience store, and an officer picked me up 27

with my friends and I spent an evening in a holding cell. I wasn’t charged with 28

anything, but it sort of changed things for me. I never wanted to be in that 29

situation again. AJ and I are very different, but he/she’s a nice kid, and I know 30

he/she stays out of trouble. My family is glad I’m hanging out with some different 31

people, but they don’t really get the whole “LARPing thing” so when AJ invited 32

me to tag along for the Medieval Faire this year, I wanted to go, but knew there 33

was no way I was going to be able to put together a costume in time. I live near 34

the fairgrounds, so I told AJ we could park by my house and walk over together. 35

The charge for parking is such a rip-off. 36

When AJ pulled up, he/she parked down the street, and I thought he/she 37

might be lost, so I went out to meet him/her. AJ was playing around with some 38

people on the street. They looked to be having a lot of fun. AJ told me that there 39

73

was something wrong with his/her costume, and that he/she was worried he/she 40

was going to have to stop at home. I told AJ there was a convenience store just 41

down the street, and maybe we could find something over there. I didn’t want to 42

risk them being late for the costume contest, and the store was on the way. There’s 43

only one convenience store in the area, so even though I was worried the owner 44

would recognize me from my arrest, I knew there weren’t many other options. As 45

we walked, people on the street and people driving by were looking at us because 46

AJ was all dressed up. I was trying to talk in an accent but my English accent or 47

whatever wasn’t very good. I clearly did not practice as much as AJ. AJ kept 48

saying things like “En garde!” and “Bow before knighthood, you peasants” to 49

people walking by. It was pretty funny, and people thought so too. One guy and 50

his kid who were walking by stopped to look at the costume, and AJ let the kid 51

play with the bow, since it was harmless. AJ invited the boy to come to the next 52

LARPing club meeting and he/she gave the family his/her contact information. I 53

got pretty into this; I don’t have any brothers or sisters, so it was nice to be able to 54

play around a bit and be silly. 55

Once I walked into the store, I recognized the store owner right away; I 56

thought they’d hired a new clerk, but that same grouchy owner was there. I told 57

myself that since we’d only be there a minute, I’d just get what I was looking for 58

and get out of there before the owner recognized me. I decided to look for 59

74

something to drink that we could use to be in character at the Medieval Faire. I 60

was looking for a juice that might look like mead if we put in a plastic cup, when I 61

heard some lady scream. She was yelling at someone. When I heard glass break, I 62

hoped to myself that AJ had nothing to do with it, but next I heard AJ scream back 63

at the customer in his Medieval speak. I know AJ is my friend, but I was 64

embarrassed; its one thing to play around, but you’ve got to know when to stop. 65

Next thing I knew the store owner is screaming he’s going to call the cops. I knew 66

better than to get mixed up in something so I ran to find AJ and tell him/her we 67

need to get out of there. The customer was still screaming at AJ, but he/she 68

wouldn’t stop! AJ screamed at her “My bow is the fiercest in the land, and if I had 69

intended to hit you, m’lady, I would have hit the target for sure!” This only 70

infuriated the customer more, and she yelled some things at AJ that I don’t care to 71

repeat. I hadn’t seen the store owner come back to investigate, and I was 72

concerned that was because he/she was on the phone with the police. The 73

customer started to pick up another jar, and AJ was jokingly darting back and forth 74

around the customer, like AJ was trying to bait her into throwing it at him/her. I 75

told AJ he/she needed to stop playing, and we had to get out of there, NOW. AJ 76

looked confused, and I was worried I’d have to drag him/her out of there. I didn’t 77

want to run, because it would make us look guilty when we aren’t, so I tried to stay 78

calm and leave the store empty-handed. I didn’t realize that AJ had thrown some 79

75

money for shoelaces; I just thought he/she was stalling again, so I ran out without 80

him/her. As we left, I saw the customer still muttering under her breath and visibly 81

angry. I waited for AJ to get outside and then pulled AJ toward the side of the 82

store to avoid her. Next thing I knew AJ was playing around with some other 83

people on the street. Thankfully, these guys were amused by AJ and going along 84

with it, but I didn’t want to draw attention from the angry customer again. 85

Knowing what happened, I feel bad about this now. I really do. AJ is my 86

friend, and I feel terrible about what happened to him/her. But he/she made me 87

upset. This was my neighborhood, and AJ just didn’t get it. Maybe he/she could 88

play around like that where he/she’s from, but he could get us in serious trouble 89

here. I’ve seen so many friends make mistakes around here, and I’ve managed to 90

stay out of trouble. I started screaming at AJ, who just got this dopey look on 91

his/her face and started to explain what happened in the store. Really, it didn’t 92

make any difference at that point and I just wanted to get out of there. And I 93

figured AJ had gotten the point, because they looked like a wounded puppy at that 94

point! But much to my horror, he/she insisted on showing me how bad the aim is 95

on the bow and arrow by notching an arrow. I was waving my arms at him/her to 96

stop, and I saw that people were starting to stare. I begged him/her to put the bow 97

and arrow down, and AJ just got more upset that I was mad. The next thing I knew 98

there was a loud popping and AJ was on the ground. 99

76

The rest of what happened was a blur. I had heard about my fair share of 100

shootings in the area, but I’d never seen it in person. I didn’t even know where it 101

came from until after the fact. I didn’t see an officer on the scene until AJ had 102

been shot, and if he/she did give a warning, I sure didn’t hear it. A man came to 103

ask me questions and get me away from AJ, but I guess I was shocked or 104

something. 105

After this incident, AJ was hospitalized. I wasn’t allowed to ride in the 106

ambulance, but I was able to visit the following day. When I heard that an officer 107

shot AJ, I couldn’t believe it. I mean, I wish AJ hadn’t been such a pain in the 108

store, but he/she was harmless. He/she was holding a “Smoosh” toy, in bright 109

colors! If the officer would’ve just taken his/her time, he/she would’ve seen AJ 110

wouldn’t harm a fly. We didn’t even know there was a police officer there, and 111

trust me, I was looking for them! I’ve been visiting AJ as much as I can, and I’ve 112

been sneaking in Magic! The Gathering cards so he/she can teach me how to play. 113

Hopefully we can try to make it out to the Faire next year, and I’ll pay for the 114

parking next time. 115

77

3. JUSTICE SMITH (Retired Police Officer Who Witnessed the Incident)

My name is Officer Justice Smith, and I have lived in Buckeye my entire 1

life. I graduated from Trillium High School in 1992 and even before I graduated, I 2

knew I wanted to be a police officer, and have been involved with law enforcement 3

in some capacity my entire career. I graduated from the State of Harmony Police 4

Academy in 1994. My training at the State of Harmony Police Academy included 5

1000 hours of comprehensive instruction including courses focused on effective 6

control techniques, recognized action response continuum models for use of force, 7

patrol operations, law and legal procedures, criminal investigations, and firearms. 8

After graduation from the Academy, I was hired by the Cardinal Police 9

Department in 1994 as a uniform patrol officer. Uniform patrol officers are the 10

first responders to a call from the public for police services. “Uniforms,” as they 11

are called, generally are assigned to a specific area of the community. Uniforms 12

provide routine patrol, conduct premise inspections, apprehend and arrest law 13

violators and enforce laws and ordinances. 14

In 1999, I was promoted to Sergeant. As a sergeant, I supervised an entire 15

shift of Uniforms and, among other duties, organized daily assignments prepared 16

and presented roll call, reviewed and approved reports and assisted with difficult 17

investigations. I also led trainings on a wide variety of police policies and 18

78

procedures, including appropriate application of the action response continuum 19

policy. 20

In 2003, a Lieutenant position became open at the Carnation Hills Police 21

Department. I saw this as a great opportunity to advance my career and move 22

closer to my hometown of Buckeye. I retired from the Carnation Hills Police 23

Department in 2014. 24

As a Lieutenant, I was responsible for ensuring that all subordinate officers 25

in the Carnation Hills Police Department followed all statutes, regulations, and 26

department policies. In this position, I routinely drafted and revised department 27

policies to comply with state and federal law and recommendations from national 28

law enforcement organizations. I also served as the primary liaison to the Chief of 29

Police and often was asked to participate in community education events and 30

programs. I also obtained certification as a Subject Control Instructor. I had 31

primary responsibility to plan and execute all of the Departments’ Continuing 32

Professional Training (CPT) programs, including educating my officers on 33

appropriate responses to a wide variety of situations faced by officers every day on 34

the job, including following the action response continuum. 35

36

37

38

79

My primary areas of instruction have included, among others, the following topics: 39

40

*Use of Force (annual training, Instructor 2005-present) 41

*Response to Resistance (Certification in 1995, Instructor in 2010-present) 42

*Weapon Retention/Shot Avoidance (Certification in 1997, Instructor 2005-2014) 43

*Communications Response Tactics (Training in 1998, Instructor 2009-2011) 44

*Defensive Tactics Instructor Course (Instructor 2002, 2006, 2008, 2010, 2012) 45

*First Responder Training (Annually since 1994) 46

47

I also have been privileged to continue to lead these trainings as part of my 48

consulting work since I retired. I retired in 2014 because I “maxed out” my years 49

of service to draw retirement benefits from the State of Harmony. I soon realized 50

that I could not really “retire” and after a month of hanging around the house, I 51

knew I had to find something to keep me busy! So I started to work security for 52

local events and started a small consulting business that allows me to continue to 53

work with law enforcement departments around the state. 54

In addition to being a CPT Instructor, my consulting work requires me to 55

keep current on best practices, legal requirements, and applicable policies and 56

procedures for law enforcement. I assist local departments by reviewing and 57

revising operations and procedure manuals to ensure they comply with recognized 58

best practices and legal requirements. In fact, even before the incident we are 59

talking about, I worked with the Buckeye Police Department to review several of 60

its policies and manuals, including its Action Response Continuum (ARC). It was 61

great to see that the Buckeye Police Department Polices complied with state and 62

80

national law enforcement best practices and include provisions that are in 63

compliance with the most current legal standards. 64

All law enforcement officers in Harmony receive training on how to 65

appropriately respond to situations encountered in the field. This training includes 66

the established and universally accepted ARC. The ARC teaches officers how to 67

properly evaluate a situation to determine the type and extent of response that is 68

reasonable to protect the public and themselves from harm and effectively gain 69

control. Officers are trained that the reasonableness of their response is based on 70

the amount of resistance encountered by an individual(s) and the officer is required 71

to take the amount of time necessary to appropriately evaluate the situation. The 72

officer should choose his/her response based on department policy, his/her physical 73

capabilities, perception of the situation, training, and experience. 74

For example, if the individual’s actions are limited to failing to respond to 75

commands, the appropriate response by the officer may be maintaining a presence, 76

escorting the individual from the scene, or requesting assistance from other 77

officers. Use of deadly force is reasonable only in those situations where weapons 78

are being used against the officer, when an individual is attempting to disarm the 79

officer or when the officer encounters a life threating weaponless assault. The 80

officer’s assessment also should include an evaluation of a number of special 81

circumstances such as type and closeness of a weapon, distance from the subject, 82

81

availability of other options, environmental conditions, including the actual or 83

perceived threat of harm by others in close proximity, injury or exhaustion of the 84

officer or subject, and whether the suspect is handcuffed, on the ground, or 85

otherwise incapacitated. 86

Officers in Harmony also learn how to effectively work with the 87

communities they serve as our citizens play a vital role in maintaining order and 88

good will. Proliferation of video cameras, both by the public and police 89

departments around the country also plays an important role in officer relationships 90

with the public and the community’s perception of how officers respond to 91

situations, including the nature and extent of the use of deadly force. 92

On July 25th

, I was just finishing up a shift as a contract security guard for 93

the Medieval Faire. Most of the attendees at these festivals are well behaved and 94

historically we have had few arrests for minor misdemeanors. Over the years we 95

have found that having a commanding presence can make people feel at ease, or 96

using authoritative body positioning and verbal cues can quickly diffuse a 97

situation. In cases where the resistance is more significant, such as striking, 98

kicking, or pushing the officer, it has been necessary to use greater force to 99

respond, including using mace, Taser or baton techniques. 100

After finishing at the Faire, I was starving. A giant turkey leg didn’t exactly 101

sound appetizing, and most of that food gives me heartburn, so I stopped at 102

82

Swifties, the convenience store across from the fairgrounds. When I got out of my 103

car, I saw two kids standing in the parking lot arguing with each other. They were 104

approximately 20 feet from the entrance, and were facing each other. One was 105

wearing a costume and holding a plastic bow and arrow, and the other was dressed 106

in plain clothes. 107

I figured the kid in the archer costume was on the way to the Faire for the 108

costume contest, but I didn’t know what was going on. Even though I was off the 109

clock, I still felt I had a duty to ensure this didn’t get ugly. Before approaching the 110

kids, I decided to ask some bystanders in the parking lot to get a sense of what was 111

happening. The argument hadn’t yet become physical, but I kept one eye on them. 112

I asked how long the argument had been going on, and one bystander said they 113

weren’t sure if they were even arguing, and that they had been playing around. No 114

one in the area seemed to be panicked or concerned. After a few minutes I saw 115

another officer arrive on a motorcycle. The motorcycle’s lights were flashing and 116

the officer quickly dismounted and immediately took shelter behind the bike. I 117

estimate that when he/she arrived on the scene, he/she took position approximately 118

20-25 feet from the two individuals who were arguing. 119

The two teens, continued to scream at each other. At this point the kid in 120

the archer costume drew back the string of the bow, and gestured to the other teen 121

in plain clothes. I heard the officer yell out to the teens, but could not hear what he 122

83

was saying from where I was standing. The archer turned to face the officer, 123

without releasing the tension on the bowstring. The officer responded by firing 124

two successive shots at the archer, at which point the archer dropped the bow and 125

slumped to the ground. I estimate that approximately 30 seconds passed between 126

the time the officer arrived on the scene and the time he/she discharged his/her 127

weapon. 128

With the archer now on the ground, the officer moved forward with his/her 129

service weapon drawn, and kicked the bow away. The officer surveyed the scene, 130

and then lowered his/her weapon and checked the archer’s vitals. 131

At that point I identified myself as a retired law enforcement officer of the 132

Carnation Hill Police Department, and offered my help in providing emergency 133

medical assistance. I initially did not recognize the officer, as he/she was wearing 134

a motorcycle helmet and sunglasses when he/she arrived on the scene; but as I 135

approached the officer, I recognized that it was Officer Riley Green. I previously 136

met Officer Green when s/he attended a couple of CPT programs I led for Buckeye 137

Police Department. Officer Green appeared visibly shaken by the incident, but 138

only nodded to me when I offered assistance. Given the CPT trainings s/he 139

attended, I think Officer Green is relatively new to the Buckeye Police 140

Department, so I don’t know if he/she recognized me. 141

84

As a trained first responder, I approached the archer and saw that there was 142

heavy bleeding in both the anterior and posterior of the right shoulder, indicating 143

that at least one of the bullets had entered and passed completely through the 144

shoulder. I immediately completed an initial assessment of his/her medical 145

condition and applied pressure at the wound sites. I determined that the archer was 146

still breathing, but was unconscious. Emergency medical services are typically 147

posted at large gatherings like the Medieval Faire, so the ambulance arrived within 148

several minutes. When the paramedics arrived, I stepped back and permitted them 149

to take over. A squad car from the Buckeye Police Department arrived at the scene 150

within a couple of minutes after Officer Green discharged his weapon. I remained 151

at the scene, anticipating I would need to provide a statement. 152

Approximately 30 minutes after the incident, I was interviewed by two 153

detectives from the Internal Affairs Division. The detectives asked me to provide a 154

timeline of events including a detailed description of the scene as I observed it. 155

Although it was very difficult for me to criticize the actions of a fellow 156

officer, I took an Oath of Honor when I took this job and knew that had to come 157

first. In my opinion, Officer Green’s use of force in this instance was not 158

reasonable and did not comply with Buckeye Police Department Policy or the 159

training that all Officers in the state of Harmony receive. To come to this 160

conclusion, I have relied on my training and experience to interpret both what I 161

85

saw first-hand as an eyewitness, and the report of the Internal Affairs Division 162

dated July 30, 2015. 163

First, law enforcement officers are trained to recognize a wide variety of 164

weapons, including bows and arrows. Although the bow and arrow looked 165

somewhat realistic, even to someone who is not trained, it wouldn’t take the 166

average person long to figure out that the “weapon” was just a toy. Anyone 167

looking at that weapon for 15 seconds could see it was made of plastic and the 168

arrows had foam tips in the shape of an arrowhead. Officer Green was close 169

enough that he should have almost immediately realized that both were toys and 170

thus did not pose an immediate threat of serious bodily injury. 171

Officer Green also failed to adequately evaluate the environmental 172

conditions at the scene. Officer Green fired his weapon before s/he had time to 173

adequately determine if there was any risk of harm, let alone a risk of serious 174

physical harm to him/herself or others. Officer Green was on the scene less than 175

30 seconds before s/he used discharged his weapon and shot an individual s/he 176

assumed was a suspect. 30 seconds is simply too short of a period of time to 177

perform an adequate evaluation of the situation. 178

Additionally, although Officer Green was responding to a “potential armed 179

robbery,” when s/he arrived at Swifties, the scene was not consistent with a 180

situation that posed risk of serious bodily harm that would justify the use of deadly 181

86

force. The individual with whom the archer was arguing did not appear to be 182

concerned for his/her safety or appear to be threatened by the bow and arrow. The 183

small group of bystanders was not behaving in a manner to suggest that they felt 184

they were in danger of serious physical harm. In fact, I observed that a couple of 185

people appeared to be “joking around” with each other and were comfortable 186

watching the argument between the two individuals. None of the bystanders tried 187

to wave Officer Green down, seek cover behind cars parked nearby or were seen 188

running from the scene. 189

Officer Green also made no attempt to de-escalate the situation before using 190

deadly force and there were a number of responses that would have been 191

appropriate. I reviewed the City of Buckeye dispatch log and confirmed that 192

Officer Green was advised at the time he received the initial call that back up 193

officers were being dispatched to the scene. It certainly would have been 194

reasonable for Officer Green to maintain his position and wait for assistance from 195

other officers. Officer Green could have also continued his verbal and/or physical 196

commands to the individuals to drop the weapon and disperse from the area. 197

As a police officer and instructor with more than 25 years of service and 198

based upon my observations at the scene, it is my opinion that Officer Green did 199

not have a lawful basis for shooting on the day in question. I can certainly feel for 200

Officer Green, knowing that our job isn’t easy and we have to make tough calls 201

87

every day, and at times have to make split decisions. However, sometimes an 202

additional 15 seconds to a minute can make the difference between saving a life or 203

losing one. That is why I think regular and repeated training is critical to our 204

success as officers. 205

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Defense Witnesses

1. RILEY GREEN (Defendant officer)

My name is Riley Green and I am 28 years old. I have been a police officer 1

for the last 8 years. My spouse and I moved to Buckeye with our two girls, ages 5 2

and 3, about 8 months ago. We own a house and live just outside the town limits 3

of Buckeye. 4

I am a patrol officer but am proficient in all the skills that should have gotten 5

me promoted to sergeant two years ago in my previous department. I’ve already 6

applied for sergeant in Buckeye too. I am consistently the best marksman in trials 7

and score tops in field tests. My strength and agility tests are number one for the 8

whole force. I haven’t been here long, but I want Buckeye to be a safe place for 9

my daughters. 10

I’ve heard it said (although never to my face, of course) that I don’t always 11

have the best bedside manner. The other officers don’t always respect the way I 12

handle tense situations. My theory, and it has always worked for me, is that you 13

see a tense situation and you defuse it as fast as you can. Delaying action 14

unnecessarily just results in injuries of others, or even officers. You don’t waste 15

your time holding hands and trying to figure out what childhood trauma caused this 16

puke to rob a store and hold the clerk hostage. When a problem arises, you have to 17

handle it. Everybody had a difficult childhood and relatively few people feel a 18

need to break the law. I was hired to protect the law abiding citizens of Buckeye 19

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and I do that 100% every day I’m in uniform and on the street. You may not like 20

the method but you can’t argue with the results. 21

We’re placed in some situations where you’ve got to make split-second 22

decisions, and it’s easy for people to talk about what could have been done in 23

hindsight, but I’m the kind of person who knows how to make the tough choices. 24

And you don’t get the benefit of ten minutes to sit and mull it over while a guy is 25

pointing a gun at a hostage. In my old precinct, that’s just how we did things, and I 26

just don’t understand some of these officers in Buckeye. 27

My spouse, the girls and I had just returned from vacation the day of the 28

alleged incident. We always go down to McDougal’s cave and take the kids 29

hiking. It’s my favorite time of the year; we go for at least a week. The last few 30

years it’s been harder to get the time off, especially around the 4th of July, but if 31

you go any later in the year, it gets so hot out! This year, it rained the first three 32

days. The last few were beautiful, and I didn’t want to go back to Buckeye! I was 33

scheduled for a shift the day we drove back, and we packed the girls up in a hurry. 34

When we got home, one of the girls couldn’t find the turtle she smuggled home 35

(even after I told her to leave it at the camp) so we had to take the whole car and all 36

the luggage apart looking for it. I did not want that thing to die in the car or a 37

suitcase and stink up and ruin whatever it was in. I tried to call in, but they told me 38

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we were short-staffed, so I had to come in. Obviously, this put me behind schedule 39

and I was late getting in to work. 40

Before starting a patrol, we are supposed to read all the announcements on 41

the board or get them in roll out, but I was too late my first day back to do either. 42

Besides, I already knew the only real news was that Morris was retiring on Friday; 43

the party was at The Pub and we all needed to kick in $20. Not much more 44

important is said or written before a shift starts. That notice had been the only 45

thing on the bulletin board for weeks, and I’d already paid my $20 to the captain. 46

I was working a one man motorcycle patrol that night. I’m still not used to 47

the one-man patrol, especially given the amount of calls I get. I’m not in the 48

easiest area, but we don’t have the staff to work in partners. My first few hours on 49

shift I had a few easy calls (some simple domestic assaults, a noise disturbance 50

here or there, etc.), A few hours into my shift; I get a reported robbery at the 51

convenience store Swifties. I couldn’t believe it, but the report was that the perp 52

was wearing some sort of disguise, and attempting to rob the store with a bow and 53

arrow. 54

I’d been out to that store I don’t know how many times, so I knew this 55

wasn’t going to be a good night. The store owner has had some rough breaks with 56

that store, and I try my best to look out for them. For a lot of the people in that 57

neighborhood, Swifties is the only place nearby to get groceries. Too much crime 58

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and the owner may eventually call it quits and close the store. I’d seen it happen 59

countless times in my old precinct where grocery stores in bad neighborhoods 60

close because of theft, and the convenience stores become the last holdout for the 61

locals to buy any food without driving or taking a bus. If they close, what happens 62

then? 63

I got there about two minutes after the dispatch and saw two kids in the 64

middle of a heated argument. One of the kids in the argument matched the 65

description given by dispatch, so I knew it was my suspect. A bunch of other 66

people were standing off to the side looking completely confused. One of the kids 67

was screaming, and the medieval kid was flexing the bow and arrow, aiming at the 68

second kid involved in the argument! I got about 20-30 feet away from the 69

suspect, dismounted the motorcycle and positioned myself behind it as a shield, 70

and then yelled for the suspect to put down the weapon. If anything, they just 71

seemed to get into it even more with each other. 72

I gave multiple clear warnings, and rather than put the bow down, the 73

suspect actually turned towards me! At this point the suspect was aiming the bow 74

and arrow at me, leaving me no clear alternative. I fired two shots at the suspect’s 75

right shoulder. The suspect lowered the bow, and went down. Afterwards, I 76

secured the scene with another officer who had arrived just after I did. 77

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It wasn’t until later that I find out about this “fair” thing and that apparently 78

people in Buckeye dress up like folks who’ve been dead a long time and walk 79

around for three days like weirdos. I don’t care who you are, or what time period 80

you’re living in, you don’t walk around with a weapon like that. Not in that area 81

especially. I don’t think the “fair” thing matters at all – the perp had a weapon and 82

was preparing to fire it at people! He/She had already fired at least one arrow in 83

the store and refused to put the weapon down when lawfully ordered to by a law 84

enforcement officer. 85

I did everything the way that I was supposed to according to our policies. I 86

took as much time to observe as I felt that I could, and once the kid was ready to 87

shoot the bow and arrow at someone, I had no choice but to do what I did. I mean, 88

what did the kid expect was going to happen?! I’m sure this kid was nice and all, 89

but how was I to know he/she wasn’t like some of those other scumbags I’ve seen 90

on the beat since I started? And this archer wasn’t just putting him/herself at risk 91

either. Maybe I had my motorcycle to shield me, but I couldn’t live with myself if 92

that other teen was injured on my watch as well. It’s never glamorous, but I did 93

what I had to do to protect the public and I would do it that way again. 94

I didn’t like having to shoot the kid, I really didn’t. Another officer was on 95

the scene, and helped get the kid to a hospital. I guess I was in shock a little bit. I 96

mean, I’m just like anyone else, I just want a job that can send me home to my 97

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family and kids at the end of the day, you know? I don’t like having to put my life 98

on the line as much as the next person, and I certainly wouldn’t be able to live with 99

myself if someone else had been harmed on my watch. Some fellow officers are 100

still giving me grief about the incident; and a few have said they refuse to work 101

with me in the future. They told me it wasn’t a real bow and arrow, but how I was 102

I supposed to know that? And what if it had been? Some of the older officers tell 103

me that the department deals peacefully with the fair participants every year just 104

fine, and that everyone knew it was fair weekend and that things might get a little 105

kooky. Whatever. It didn’t look that way to me, and I’m the one who had to deal 106

with the situation in the heat of the moment. I guess there’s a bleeding heart in 107

every department. She was probably a fair weirdo herself growing up and 108

probably thought I should just ask the perp politely not to kill someone. I’m sure 109

any self-respecting cop in my situation would have done the same thing I did. 110

I mean, I have to be honest, if I had it all to do over again, I can’t imagine 111

another scenario. Our policy states that we should always try a verbal warning, 112

which I did; I flashed my lights, used a siren, and then told the kid to drop the 113

weapon. It also states that if you feel like you are in danger, you should call for 114

back-up, which I did, but I had no way of knowing who would be coming and 115

when. A lot can happen in a short amount of time. And after all that, the kid drew 116

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their weapon on a civilian, and pointed it at me. I had no choice; I followed the 117

policies to the best of my ability. 118

I got some looks around the station for a while after the incident, and got 119

passed up for sergeant again, even though I kicked butt on the exam. I’d like to see 120

how someone else would’ve handled being in my shoes. I came to Buckeye to 121

make a name for myself, and instead I feel like I’m taking a step back! Next year, 122

I’ll just take a longer vacation and avoid all those nerds altogether! 123

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2. CHRIS ABBOTT (fact witness who reported incident to police)

My name is Chris Abbott, and I’m a local store owner in Buckeye. I grew 1

up in Valley Heights, by the fairgrounds, was born and raised around this 2

neighborhood. I opened up the Swifties convenience store twenty years ago, and 3

things looked a lot different back then. When I was growing up my dad saved up 4

for a store of his own, but it never happened for him. I always told myself I’d own 5

my own business, and I’d stay in the neighborhood. Famous last words. I’ve tried 6

my best to keep this place safe for my customers, but it’s been an uphill battle. 7

Things are just different now; it’s a different time than when I first opened my 8

store. 9

This used to be a blue collar neighborhood, and we’d get people stopping in 10

for milk on their way home or something. Mostly adults would come in. Now, we 11

have quite a lot of crime; fighting in the parking lot, stealing. The sad part is it’s 12

usually the young people who do it. I mean, I get it; a lot of these kids grow up too 13

fast; they’re not all bad. But I’ll tell you, the ones who are can make this job 14

nearly impossible. I’ve been robbed more times than I can count. And I’m not 15

even talking about the shoplifters, although they can rob you blind; I’m talking 16

about assault, armed robbery, I’ve seen it all! 17

When I was younger, I kept a gun in the store, because I thought I could 18

fight back against anything that happened to me. I’m too old for that now. A few 19

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years ago I had to build a cage around my stand. I’d had a gun pulled on me more 20

than a few times and it just wasn’t worth the risk anymore. I have kids, and even a 21

grandkid on the way. So now, when my safety is on the line, I don’t even hesitate 22

anymore, I call in the cops. That’s what they’re there for. None of the officers 23

have ever given me a hard time for any false alarms, it’s always better safe than 24

sorry. I can’t always see so well from my cage, but frankly I don’t need to. If you 25

want to come into my store and make bad life decisions, I’m not gonna stop ya, but 26

I am gonna call in the cops right away. 27

I’ve thought about closing the store a number of times. I’ve seen so many 28

stores come and go around here, and this is one of the only places in the 29

neighborhood to get groceries. I just want to give people a place to get their 30

groceries and be on their way, but it’s been a huge headache the last few years. 31

It makes me sad, what’s been happening in this neighborhood, but I keep at 32

it for my family. I’d love to be able to hand the family business off to my kids, but 33

sometimes I’m not sure that one of them wants it. My youngest son is in college 34

right now, says he doesn’t want to come back. I left this neighborhood once, to go 35

to school. I’m a civil engineer and a proud graduate of Buckeye Polytechnic 36

Institute. For a while I worked at Bucki Engineers and Associates (Bucki). It was 37

a big break for me when I was hired. Just before being hired, Bucki landed a big 38

construction contract and needed civil engineers to work on the project. Because 39

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of the uncertainty in the economy, I was hired as a part-time engineer to work on 40

the project and was later offered a permanent, full-time position, after the project 41

leader found out about my interest and research in Roman aqueducts. Who knew 42

this knowledge would make a difference in my professional life! Eventually 43

though, I wanted to have a family, wanted to be home nights and weekends. I also 44

just wanted to be my own boss. Most importantly, I believed that I could help 45

make my neighborhood better. Local businesses were closing right and left, and I 46

thought I could help build things up again. Ambitious, I know. 47

English language arts and social studies were my weakest subjects in high 48

school. As a matter of fact, my worst grades were in English and history. In high 49

school, I much preferred the science and math classes. These classes made sense 50

to me, and they were practical. In college, I found classes in the liberal arts 51

continuum too esoteric. I do not have an eye for art--let alone an appreciation for 52

color nuances. 53

As a teenager, my siblings always joked about my clothing choices or color 54

combinations. They would say to me: “Hey Chris, are you color blind? That does 55

not match!” To which, I would reply: “I’m no great ‘fashionista’, but come on, 56

style runs through my veins”. There was another time when my siblings had a 57

good laugh at my expense. It was the time when we went boating to the lake as a 58

family, and I confused the red boat we rented for a green one docked next to ours. 59

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The funny thing was that my parents also made the same mistake. Yet, neither my 60

parents nor I have ever been tested for color blindness. We just accept that the 61

season’s color palate will not be set by the Abbotts. 62

My son, on the other hand, is all about the arts. He studies creative writing 63

at the Buckeye Institute of Art. He’s always talking me into expanding my 64

horizons. Although reading and studying Old English Beowulf or Chaucer’s 65

Canterbury Tales was not my thing in school, I have attended the Medieval Faire at 66

the Buckeye Expo with my family for the last 15 years. It helps him with his 67

studies, and I mean, the Faire is practically in my backyard! 68

I have seen the Medieval Faire grow and evolve to what it is today. As a 69

matter of fact, Buckeye’s Medieval Faire is the best and largest period fair in the 70

Midwest. It appeals to children and adults alike—just like in medieval days, pets 71

roam free. What makes the Faire so great is an authentic festive atmosphere. 72

There are at least five different stages going on at the same time each day of the 73

Faire—each stage features a different activity such as jousting tournaments, turkey 74

leg eating contest, cooking demonstrations, archery competitions, storytelling 75

contest, local vendor selling their crafts in an open air market, arts and crafts for 76

children, and many more activities. The Faire takes place the third weekend of 77

July. Of course, the crown event of the Faire is the costume contest on Saturday 78

night, where the Lady and Lord of the Medieval Faire are selected. Although 79

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costumes are not required, most attendees dress in character. Regardless whether 80

people admit it, we are vying for the coveted distinction of being selected Lord and 81

Lady of the Faire. Actually, some people go all out and put on the most elaborate 82

garbs you’ve ever seen. The crowned Lord and Lady receive free admission to the 83

Faire on Sunday, and when they are spotted by attendees, performers, or even an 84

event organizer, everyone immediately curtsies before them. The Lord and Lady 85

of the Medieval Faire garner much recognition and deference, just like royalty. It’s 86

a blast! 87

To be honest, one of my favorite things about the Faire was that the 88

customers were usually the most easygoing. We got a lot of customers, and they 89

never gave me any trouble. Because I’m so close to the fairgrounds, I get all kinds 90

of strange types coming into the store depending on what’s going on over there. I 91

don’t usually have to worry about the folks going to the Medieval Faire. 92

Unfortunately, sometimes it’s the regulars I have to worry about. People who 93

aren’t from around here worry about the crime. I’ve tried a few different ways to 94

draw back the people who are going to the fairgrounds, and for the last five or six 95

years, my partner and I have been making Buckeye chocolates that we sell a few 96

times a year. People can’t get enough of them! People in the neighborhood will 97

complain about the price, but people heading to the fairgrounds will make a special 98

stop just to get them. Every July, to coincide with the Medieval Faire we make a 99

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double batch. Swiftie’s Buckeyes rival chocolate candies sold at any of the 100

gourmet candy stores in the city. They are that good! 101

Normally, when people come into the store on their way to the Medieval 102

Faire, they travel in groups, all in costume. This kid came into the store by 103

him/herself, wearing a helmet and didn’t even wave or anything. He/she went 104

directly to the back aisle like he/she was in a hurry. I saw that he/she had a bow 105

and arrow, I couldn’t tell if it was grey, or some other color? He/she was moving 106

really quickly. There was a customer already in the store with a shopping cart. 107

After the archer came in, another teen walked in wearing plainclothes. I 108

recognized this kid. He/She has been in and out of my store before, he/she was 109

even picked up once, but I don’t really remember the incident very well. 110

Nevertheless, I knew to keep an eye on him/her. They also rushed to another side 111

of the store, and didn’t make eye contact with me. The second kid seemed to be 112

looking for the archer, but didn’t go directly over to him/her. It all looked kind of 113

suspicious. 114

After a moment or two I heard the woman in the back of the store scream. 115

She says she’s been shot by an arrow, it was one of the only things I could hear 116

clearly. They start arguing, but I can’t hear a thing the one kid is saying because 117

he/she has that helmet on! Next thing I knew, there was glass breaking. I yelled 118

out that I’m going to call the police with my phone already in my hand, and I got 119

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no response, so I called 911. Next thing I knew the kid who wasn’t wearing a 120

costume runs over to the kid with the bow and arrow and says they’ve gotta get out 121

of there. At this point I can only assume they’ve just robbed the place, and they 122

could be coming for the register. I spoke to the dispatcher as I heard more 123

shouting in the background. Now, I admit at this point I’ve started to duck behind 124

the counter. I told the dispatcher that a kid dressed up like an archer just attacked 125

someone in my store with a bow and arrow, and that they probably stole from me. 126

I also heard a weird snapping sound, and couldn’t identify where it was coming 127

from. I saw the two teens run out of the store, and the next thing I knew, the 128

customer was stomping out of the store behind them. She was angry, and she had 129

something dripping off of her arm, with an arrow sticking out of her hand. I 130

couldn’t tell if she was injured, and as I yelled out after her, she ignored me. 131

I always assumed that the people going to the Faire would be carrying fake 132

weapons, but if whatever this kid was carrying was enough to injure a customer, I 133

wasn’t taking any chances! When I heard that customer scream, it sounded like she 134

was hit pretty hard to me, and for all I knew it wasn’t someone going to the 135

Medieval Faire at all, or it was someone who had lost their common sense. When 136

the kids got outside, there was shouting, and I could hear more people. I didn’t 137

know who else had shown up outside, but I knew things were getting louder. I 138

heard more shouting from the parking lot, and I could hear Officer Green’s 139

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motorcycle approaching, even over the shouting outside. From where I was, I 140

could see the red and blue from the flashing lights on Officer Green’s motorcycle. 141

When I found out the kid was just holding a toy bow and arrow, I felt bad 142

for him/her, but I don’t know what would possess a kid to play around like that? 143

People would tell me they were young, and didn’t know any better, but I’ve seen 144

my fair share of teens commit adult crimes in my store. I was relieved when I 145

found out later they had sent Officer Green, who has always done his/her best to 146

protect my store and that’s what he/she did here. Do you think I need people in my 147

store shooting arrows at my customers and hitting them in the head? I don’t care if 148

it is a toy or not. If it had been my son doing this, you’d better believe I would’ve 149

taught them better than that. Neither one of those teens had any business playing 150

around in my store or causing a disturbance. I want people to feel like they are 151

safe coming into my store, and after this whole fiasco, it’s going to take some time 152

to restore the image. This kind of blow to business was exactly what I was trying 153

to avoid! 154

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3. PAT SWEENEY (Peace Officer Academy Trainer)

My name is Pat Sweeney, and I am a training officer at the Harmony State 1

Peace Officer Training Academy. I have been employed there for 16 years. I 2

teach the training course on the use of force to police cadets and have done so for 3

my entire 16 years at the academy. I am also responsible for keeping the training 4

records of all cadets trained at the Training Academy, including Officer Riley 5

Green. Before being so employed I was a police officer for 7 years in the City of 6

Buckeye where I served as a patrol officer for 4 years and a sergeant for 3 years. I 7

was recruited to the Training Academy by the then superintendent because of my 8

experience in mentoring new recruits to the Buckeye police department, and the 9

recommendation of my Chief of Police because of my ability to avoid the use of 10

force in numerous situations during my employment. I was one of the founders of 11

the “Developing a Street-Ready Mind” program for officers in Buckeye and in 12

neighboring departments. I have served as an expert witness for the Harmony 13

Attorney General’s Office, as well as the Harmony Peace Officer Training 14

Commission, and have presented numerous papers for the U.S Justice Department 15

on reasonable responses to assault and aggression. 16

In the State of Harmony, all police recruits must undergo 1000 hours of 17

rigorous training, pass their courses and pass a comprehensive exam in the many 18

areas of skill and knowledge that are required of law enforcement 19

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officers. Training at the academy includes both theory instruction and practical 20

application courses. Included in that course work are requirements in the current 21

state of the applicable case law on the issue of the use of lethal force against 22

suspects who may be dangerous to police officers or others in the general 23

public. Additionally, all recruits, in order to become certified law enforcement 24

officers in the State of Buckeye, must pass a difficult shoot-no-shoot skills test. 25

Throughout an officer’s training, officers are taught to follow strict 26

guidelines in determining the appropriate level of response in a variety of 27

situations. In training our officers, we utilize recognized best practices and 28

guidance from case law. Officers are trained to follow a standard action response 29

continuum, which is designed to closely resemble the policies that most of our 30

officers will encounter when they take positions in various departments around the 31

state. Police departments around the state establish use-of-force policies for their 32

departments, which may vary from the policies taught at the Academy. Peace 33

officers are responsible for knowing the policies of the department in which they 34

are employed. 35

Because many of our cadets leaving the academy take positions with 36

Buckeye City Police Department, I am familiar with the Buckeye Police 37

Department’s Action Response Continuum (ARC). I can confidently say that it is 38

consistent with the training that our officers receive at the academy, and does not 39

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substantially differ from the model action response continuum that we follow at the 40

academy. As a peace officer assigned to Buckeye City Police Department, Officer 41

Green would be responsible for knowing and following the Buckeye City Police 42

Department ARC. 43

When determining the appropriate level of force to use, policies recommend 44

an officer first observe and assess the actions of the suspect. In doing so, the 45

officers’ use of force is in fact a “response.” The continuum establishes the 46

expectation that in routine interactions with police, officer presence and verbal 47

communication can be sufficient when interacting with the public. According to 48

the Buckeye City Police Department ARC, when a suspect is exhibiting low-level 49

noncompliance, for example they are resistant to an officer’s lawful verbal 50

commands, the officer is trained to respond by things like open hand controls, 51

entering escort position (taking hold of the suspect’s arm and elbow to direct their 52

movement), receiving additional assistance from other officers present, etc. 53

As the actions of the suspect escalate, the officer’s response will likewise 54

escalate. The clear response in most continua, and most specifically the Buckeye 55

City ARC, states that when there is “imminent threat of physical harm” it is 56

“warranted to protect oneself or another from danger of imminent death or serious 57

bodily injury.” For example, when the suspect is using a deadly weapon, or is 58

engaging in life threatening weaponless assaults, the officer is trained and 59

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authorized to respond with deadly force due to the high probability of danger that 60

exists to the life of the officer, the suspect, or others nearby. Should greater use of 61

force be required, there are mediating factors such as the age, sex, skill level, and 62

strength of the office. Also important is how close the officer is to the weapon, 63

special knowledge of the situation or environment, availability of other options, 64

etc. 65

The law also requires that use of deadly force comply with the 66

reasonableness requirements of the Fourth Amendment, as it has been interpreted 67

in case law. Officers use of deadly force is deemed to be reasonable when the 68

suspect poses an immediate threat of serious physical harm to self or others, and 69

where a crime has been committed involving infliction or threatened infliction of 70

serious physical harm, and when a warning is issued before using force (unless 71

circumstances make a warning unfeasible). Special considerations are also taken 72

into account, such as the split-second decision required in most scenarios officers 73

face. Although it is often easy to fully analyze a situation after the fact with 74

distance and hindsight, officers are judged as they would have been able to 75

perceive the facts at the time of the incident. 76

The Buckeye City Police department has adopted many responses to 77

scenarios such as responding to someone who is unresponsive, someone who has 78

become physically violent, or has started to resist arrest. 79

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To form my opinion in this case, I have reviewed the relevant portions of the 80

Buckeye City Police Department Action Response Continuum, as well as the full 81

incident report issued by the Internal Affairs Division of the Buckeye City Police 82

Department. Based upon my experience, knowledge and expertise, I have formed 83

an opinion, to a reasonable degree of professional certainty, as to the justification 84

of the use of lethal force by Officer Green against AJ in the situation in which 85

Officer Green found him/herself. My opinion is based upon the following facts: 86

1. Officer Green was advised by dispatch at 18:20 that an individual was 87

threatening the customers at the convenience store with the use of a deadly 88

weapon (bow and arrow), and/or attempting to rob the store while in 89

disguise; 90

2. Upon arriving at the scene Officer Green observed that AJ, a person meeting 91

the description of the individual as given by the dispatcher, had a weapon 92

(bow and arrow) in his/her hands that appeared to be lethal and functional; 93

3. Officer Green observed that AJ was apparently in a disguise and flexing the 94

bow and arrow using both hands; and 95

4. Officer Green witnessed a verbal argument occurring between the suspect 96

and another individual, and reasonably concluded that the suspect posed 97

serious physical danger to the other individual; and 98

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5. Officer Green took cover behind the police motorcycle on which he/she 99

arrived; and 100

6. Officer Green requested backup at 18:23; and 101

7. Officer Green ordered the suspect to drop their weapon, and the suspect was 102

unresponsive to officers’ communication; and 103

8. Officer Green determined that the suspect appeared to be about to fire 104

his/her weapon at Officer Green; and 105

9. Officer Green discharged his/her weapon twice, shooting the suspect in the 106

shoulder. 107

An analysis of these facts under the policies of the department and the law 108

leads me to conclude that Officer Green’s use of force was reasonable under the 109

circumstances. When Officer Green was called to the scene for a “potential armed 110

robbery,” there was a reasonable expectation of harm upon arrival on the scene. 111

Additionally, the scene to which Officer Green was dispatched was one in which a 112

crime involving serious physical harm to others was inflicted or threatened (armed 113

robbery and/or assault). 114

Officer Green was approximately 30 feet from the suspect upon arrival, and 115

was taking cover behind the motorcycle. Based on this distance, and the relatively 116

poor coverage provided by a motorcycle, it is my opinion that Officer Green had a 117

reasonable belief that the suspect presented danger of serious physical harm to the 118

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officer and the bystanders. Under the Buckeye Police Department ARC, the 119

presence of an armed suspect upon arrival, and the fact that the suspect presented 120

threat of serious physical harm, indicates to Officer Green that use of deadly force 121

may be required. 122

The police dispatch log indicates that prior to discharging his/her weapon, 123

Officer Green requested backup at the scene, as directed by Buckeye City policy. 124

The incident report indicates that Officer Green issued a verbal warning to the 125

suspect, which complies with both Buckeye City policy and recognized best 126

practices. When Officer Green communicated with the suspect, they were 127

unresponsive, and proceeded to point the weapon at Officer Green. Given the 128

immediacy of the threat once the weapon was pointed at Officer Green, the choice 129

to respond with deadly force was reasonable under the circumstances. 130

In my opinion, I also consider how the scene would have appeared to Officer 131

Green at the time of the incident, rather than in hindsight. In doing so, I take into 132

account other special circumstances such as environmental factors, and distance. 133

When Officer Green arrived on scene, it would have been unwise to approach a 134

suspect holding a deadly weapon closer than would be necessary. By maintaining 135

a distance of 30 feet, Officer Green sought to ensure his/her own safety while still 136

responding to the scenario. At this distance, a bow and arrow can still reasonably 137

be seen as a serious physical threat to the officer. Additionally, this distance 138

110

(which in my opinion is as close as we would recommend an officer approach) 139

made it more difficult to distinguish the characteristics of the weapon that may 140

have indicated it was actually a toy. 141

An additional factor that can be considered is the presence of environmental 142

conditions encountered and experience held by Officer Green to suggest that the 143

weapon was indeed real. The convenience store in question was part of Officer 144

Green’s regular patrol, and s/he was dispatched to the convenience store on more 145

than one occasion for serious and often deadly crimes. Environmentally, therefore, 146

the location can be classified as a high crime area that would encourage any 147

reasonable officer to enter the situation with heightened vigilance. Prior 148

experience at the scene suggested to Officer Green that the weapon would likely be 149

real. 150

Taking into account the distance from the suspect, and the special 151

environmental conditions that existed, Officer Green was reasonable in assuming it 152

was a real weapon based on the information available, and would not have been 153

able to approach the suspect to determine it was not a toy. 154

In these situations, the Buckeye Police Department ARC also considers 155

characteristics of the officer in question. Officer Green was a relatively 156

experienced officer who was not accompanied by any other officers upon arrival at 157

the scene. They knew back-up was coming, but had no way of knowing when the 158

111

other officers would arrive. Officer Green had minimal cover behind the 159

motorcycle in an otherwise open space. These additional characteristics suggest 160

that Officer Green was sufficiently experienced to know how to respond in the 161

situation, and had reason to believe that their immediate safety was at risk. 162

My opinion is that Officer Green was acting as any other reasonable officer 163

in his/her place could have acted at the same time in the circumstances in which 164

he/she found him/herself. My opinion is that, using the reasonable officer 165

standard, Officer Green was justified in using lethal force against AJ to end the 166

threat posed by AJ to him/herself and/or others. Therefore his actions were both 167

inevitable and lawful. Although the weapon was, in retrospect, found to be a toy, 168

this does not mitigate the reasonableness of Officer Green’s actions. Officer Green 169

arrived on the scene of a possible armed robbery and assault to find a suspect 170

matching the description given aiming the alleged weapon at another individual. 171

The situation demanded that Officer Green take immediate action to prevent harm.172

112

EXHIBIT A: Police Incident Log

Buckeye City Police Department

Incident Detail Log

Incident: #P62450172

Location: Swifties – 123 Buckeye Parkway

Incident Date: 7/25/2015

1820: male caller reports robbery

1820: two male suspects

1820: male caller reports suspect is armed

1820: all call dispatched

1821: caller reports suspect carried bow and arrow

1821: ofcr en route - Green

1822: ofcr arrives on scene

1822: communication lost – ofcr backup dispatched

1823: ofcr green has taken shelter, requests backup

1823: shots fired

1823: medics requested

1823: offcr green reports man down

1824: dispatch officers arrive

1826: medics arrive

1829: medics en route to Buckeye Med.

Priority: 1 District: 106 Zone: 03

Officers Dispatched: Green

Secondary Officers: Reynolds, Suskey, Kalgreen

113

EXHIBIT B: “Smoosh” Brand Bow and Arrow

114

EXHIBIT C:

Buckeye City Police Department Policy Manual Excerpts

Action Response Continuum

Section 18.646 P. 1

Action of Suspect Authorized Response

When facing an individual unresponsive officer commands

Officer Presence: Visual presence of authority is usually enough for a subject to comply with an officer’s lawful demands. Verbal Commands/Cooperative Controls: Effective verbal communication can many times reduce or eliminate inappropriate behavior. Always attempt verbal communication before approaching other tactics. This may include informing the suspect.

When facing individuals presenting physical resistance to control: Forms of resistance: *Pulling away *Wrestling *Pushing

Empty hand submission controls: guiding a subject into an appropriate position. Hard control tactics: Amount of force that would probably cause soft tissue damage, bone fractures or use irritation of the skin, eyes, etc.

When facing individual using an amount of force that could cause bodily harm. *Striking with an open hand *Kicking

Intermediate weapons: Amount of force that would have a probability of cause soft tissue damage or bone fractures.

When facing imminent threat of serious physical harm

Lethal force/deadly force: Force with high probability of causing death or serious bodily injury. Use of deadly force is warranted to protect oneself or another from danger of imminent death or serious bodily injury. Deadly force is the use of any force that is likely to cause death or serious physical injury. It does not include force that is not likely to cause death or serious physical injury but unexpectedly results in such death or injury.

115

Officer Characteristic Factors

1.) Age

2.) Sex

3.) Size

4.) Skill Level

5.) Multiple Subjects/Officers

6.) Relative Strength

Special Circumstances

1.) Closeness of Weapon

2.) Health

3.) Cover

4.) Distance from Subject

5.) Special Knowledge

6.) Availability of Other Options

7.) Environmental Conditions

8.) Subject Handcuffed

Use of Force Training, Standards and Policies

Use of Force; Section 18.646 P. 2

Use of Deadly Force: To be used only in compliance with the Action Response

Continuum.

a. Shall use deadly force to protect self or another, from danger of imminent

death or serious bodily injury;

b. Shall not discharge firearm to unreasonably endanger innocent persons;

c. Shall not use deadly force to prevent property damage or harm to the

suspect;

d. Shall not discharge a firearm at a moving vehicle;

116

e. When use of deadly force seems possible, should call for backup

assistance;

f. Should precede any use of deadly force by issuing a verbal warning

Use of Force; Section 18.646 P. 6

A peace officer who uses excessive force in pursuance of such officer's law

enforcement duties shall be subject to the criminal laws of this state to the same degree

as any other citizen…

Use of Force; Section 18.646 P. 9

Disengagement is a reasonable option in consideration of officer safety and the

necessity to apprehend promptly. Disengagement, area containment, surveillance,

waiting-out a subject, summoning reinforcements, or calling in specialized units may be

an appropriate response to a situation and should be considered…

117

EXHIBIT D:

DEPARTMENT OF INTERNAL AFFAIRS

INCIDENT REPORT AND RECOMMENDATION

Officer(s) Involved: Riley Green

Date of Incident: July 25, 2015

Description of incident, investigation, and findings: Officer Green responded to a dispatch all-call

for a possible armed robbery or assault with a deadly weapon at Swifties convenience store in the Valley

Heights neighborhood. According to the officer and dispatch, the caller identified the suspect as “carrying a

bow and arrow” and “being in disguise.” When Officer Green arrived on scene, an individual matching the

description holding a bow and arrow was engaging with another individual in a verbal argument. Officer

Green reports that s/he took cover behind their motorcycle and drew their service weapon. Interviews

with Officer Green and eyewitnesses on the scene place Officer Green some distance between 15 to 30 feet

away from the suspect. Officer Green reports and dispatch confirms that a request for back-up was made at

18:23. Officer Green reports that s/he gave “at least two verbal commands” for the suspect to “drop your

weapon,” neither of which were followed by the suspect. Subsequent interviews with the suspect and

others on scene are indeterminate as to whether or not the warnings were issued. Officer Green reports

that when the warnings were issued the suspect turned to face the Officer with the bow string pulled taut.

At this time Officer Green discharged two rounds from his/her service weapon, striking the suspect in the

shoulder with both rounds. After securing the scene Officer Green concluded that the bow and arrow held

by the suspect was a plastic toy “Smoosh” brand bow and arrow. Interviews with eyewitnesses Sam Jones

and Justice Smith suggest that the appearance of the bow and arrow was such that a brief visual inspection

would reveal it was a toy. Interviews with Officer Green and Chris Abbott (clerk of Swifties convenience

store and telephone complainant) suggest that its authenticity was not readily apparent.

Disposition and recommendation: Because there is inconsistency in the reports of witnesses and the

officer, it is the conclusion of this investigation that sufficient probable cause exists to refer this matter to

the Office of the Harmony State Prosecutor for investigation.

Recommendation Approved:

/S/ Cathy Godfrey /s/ Allison Smith

Cathy Godfrey, BCDP IAD Director Chief, BC Police Department

Dated: July 30, 2015 Dated: July 30, 2015

118

Tennessee V. Garner 471 U.S. 1 (1985) 105 S.Ct. 1694, 85 L.Ed.2d 1, 53 U.S.L.W. 4410 No. 83-1035 United States Supreme Court March 27, 1985 ***

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Syllabus

A Tennessee statute provides that, if, after a police officer has given notice of an intent to arrest a criminal suspect, the

suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of

this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled

over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being

"reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old, and of slight build. The father

subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his

son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of

Appeals reversed.

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an

apparently unarmed, nondangerous fleeing suspect; such force may not be used unless 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) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To

determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be

balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that,

notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to

prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. ***.

(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common law rule allowing the

use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that

that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are

now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common

law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a

long-term movement away from the common law rule, particularly in the police departments themselves, that rule is a dubious

indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that

authorized by the statute unreasonable will severely hamper effective law enforcement.

(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect -- young,

slight, and unarmed -- posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night

automatically mean he is dangerous.

Affirmed and remanded.

***

JUSTICE WHITE delivered the opinion of the Court.

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently

unarmed suspected felon. We conclude that such 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.

119

I

At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to

answer a "prowler inside call." Upon arriving at the scene, they saw a woman standing on her porch and gesturing toward the

adjacent house. She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While

Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw

someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-

feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He

saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. *** He thought

Garner was 17 or 18 years old and about 5' 5" or 5' 7" tall. While Garner was crouched at the base of the fence, Hymon called out

"police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that, if Garner made it over

the fence, he would elude capture, Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by

ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his

body.

*** In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to

Police Department policy. The statute provides that

[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary

means to effect the arrest. Tenn.Code Ann. § 40-7-108 (1982). The Department policy was slightly more restrictive than the

statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis

Police Firearm's Review Board and presented to a grand jury. Neither took any action.

Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages

under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated

the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer

Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court

entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then

concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had

employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly

attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.".

***

The Court of Appeals reversed and remanded. *** It reasoned that the killing of a fleeing suspect is a "seizure" under the

Fourth Amendment, and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case,

because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes -- "the

facts, as found, did not justify the use of deadly force under the Fourth Amendment." Officers cannot resort to deadly force

unless they have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the

*** officers or a danger to the community if left at large.

The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city

filed a petition for certiorari. We noted probable jurisdiction in the appeal, and granted the petition. ***

II

Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-

Ponce, 422 U.S. 873, 878 (1975). While it is not always clear just when minimal police interference becomes a seizure, see

United States v. Mendenhall, 446 U.S. 544 (1980), there can be no question that apprehension by the use of deadly force is a

seizure subject to the reasonableness requirement of the Fourth Amendment.

A

120

A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v.

Watson, 423 U.S. 411 (1976). Petitioners and appellant argue that, if this requirement is satisfied, the Fourth Amendment has

nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the

extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is

conducted. To determine the constitutionality of a seizure, [w]e must balance the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.

United States v. Place, 462 U.S. 696, 703 (1983); *** We have described "the balancing of competing interests" as "the key

principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692, 700, n. 12 (1981). ***Because one of the factors is the

extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.

United States v. Ortiz, 422 U.S. 891, 895 (1975); Terry v. Ohio, 392 U.S. 1, 28-29 (1968).

Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy

detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification,"

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v.

Lee, 471 U.S. 753 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721 (1969);

Hayes v. Florida, 471 U.S. 811 (1985). On the other hand, under the same approach it has upheld the taking of fingernail

scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291 (1973), an unannounced entry into a home to prevent the destruction of

evidence, Ker v. California, 374 U.S. 23 (1963), administrative housing inspections without probable cause to believe that a code

violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v.

California, 384 U.S. 757 (1966). In each of these cases, the question was whether the totality of the circumstances justified a

particular sort of search or seizure.

B

The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a

suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched.

The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest

of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged

governmental interests in effective law enforcement. It is argued that overall violence will be reduced by encouraging the

peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort

to deadly force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the

state's entire system of law enforcement." ***

Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a

sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. ***. The use of deadly force is

a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it

guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to

lead to the arrest of more live suspects by discouraging escape attempts,***the presently available evidence does not support this

thesis.***The fact is that a majority of police departments in this country have forbidden the use of deadly force against

nonviolent suspects. ***. If those charged with the enforcement of the criminal law have abjured the use of deadly force in

arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the

arrest power in all felony cases. *** Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects

is so vital as to outweigh the suspect's interest in his own life.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally

unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the

officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.

It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little

slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by

shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing

suspects.

121

It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat

of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using

deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a

crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent

escape, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass

constitutional muster.

III

A

It is insisted that the Fourth Amendment must be construed in light of the common law rule, which allowed the use of

whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously

published Pleas of the Crown:

[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to ***these

officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly,

so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is

no felony.

*** Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing

misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185,

136 S.E. 375 (1927); ***

The State and city argue that, because this was the prevailing rule at the time of the adoption of the Fourth Amendment and

for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be "reasonable." It is

true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of

police activity. See, e.g., United States v. Watson, ***On the other hand, it has not simply frozen into constitutional law those law

enforcement practices that existed at the time of the Fourth Amendment's passage. Payton v. New York, 445 U.S. 573, 591, n. 33

(1980). Because of sweeping change in the legal and technological context, reliance on the common law rule in this case would

be a mistaken literalism that ignores the purposes of a historical inquiry.

B

It has been pointed out many times that the common law rule is best understood in light of the fact that it arose at a time

when virtually all felonies were punishable by death.***

Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or fleeing

felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged

or suspected. American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter

Model Penal Code Comment). Courts have also justified the common law rule by emphasizing the relative dangerousness of

felons. See, e.g., Schumann v. McGinn, 307 Minn. at 458, 240 N.W.2d at 533; ***

Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be.

See, e.g., Enmund v. Florida, 458 U.S. 782 (1982); ***Coker v. Georgia, 433 U.S. 584 (1977). And while in earlier times "the

gulf between the felonies and the minor offences was broad and deep," 2 Pollock & Maitland 467, n. 3; Carroll v. United States,

supra, at 158, today the distinction is minor, and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at

common law are now felonies. Wilgus, 22 Mich.L.Rev. at 572-573. These changes have undermined the concept, which was

questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has

already forfeited his life. They have also made the assumption that a "felon" is more dangerous than a misdemeanant untenable.

Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.***

There is an additional reason why the common law rule cannot be directly translated to the present day. The common law

rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand

122

struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers

until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become

possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the

standard articulation of the common law rule has an altogether different meaning -- and harsher consequences -- now than in past

centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).

One other aspect of the common law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant,

condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E. at 376; ***

In short, though the common law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological

context mean the rule is distorted almost beyond recognition when literally applied.

C

In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing rules

in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S. at 421-422. The rules in the States are varied. *** Some

19 States have codified the common law rule, though in two of these the courts have significantly limited the ***statute.

***Four States, though without a relevant statute, apparently retain the common law rule.***Two States have adopted the Model

Penal Code's provision verbatim.*** Eighteen others allow, in slightly varying language, the use of deadly force only if the

suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is

likely to endanger life or inflict serious physical injury if not arrested. Louisiana and Vermont, though without statutes or case

law on point, do forbid the use of deadly force to prevent any but violent felonies. The remaining States either have no relevant

statute or case law or have positions that are unclear.

It cannot be said that there is a constant or overwhelming trend away from the common law rule. In recent years, some States

have reviewed their laws and expressly rejected abandonment of the common law rule. Nonetheless, the long-term movement has

been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the

States.

This trend is more evident and impressive when viewed in light of the policies adopted by the police departments

themselves. Overwhelmingly, these are more restrictive than the common law rule. C. Milton, J. Halleck, J. Lardner, & G.

Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police

Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. For

accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly

force to situations where the officer reasonably believes that the action is in defense of human life . . . or in defense of any person

in immediate danger of serious physical injury.

Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983)

(italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States

allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm. Boston Police Department,

Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d

1007, 1016, n.19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977). Overall, only 7.5% of

departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K.

Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record

1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981);

Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the

older and fading common law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

D

Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long

standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary.

There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or

departmental policy, rules similar to that announced today. Amici note that, [a]fter extensive research and consideration, [they]

123

have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony

suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime,

and do not improve the crime-fighting ability of law enforcement agencies. *** The submission is that the obvious state interests

in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. ***.

Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second

evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of

attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally

uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S. at 20, 27. Nor is there any indication that, in States that allow the use

of deadly force only against dangerous suspects, *** the standard has been difficult to apply or has led to a rash of litigation

involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical

felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for

example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this

claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.

IV

The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal

Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of

apprehension is available. ***This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court

did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. ***. Restated in

Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.

In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not

justify the use of deadly force." ***.

We agree. Officer Hymon could not reasonably have believed that Garner -- young, slight, and unarmed -- posed any threat.

Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court

stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was `nondangerous.'" ***. This

conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the

fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of

deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any

physical danger to himself or others.

The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner

had committed a nighttime burglary. ***. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous

as automatically to justify the use of deadly force. The FBI classifies burglary as a "property," rather than a "violent," crime. See

Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984). Although the armed burglar would

present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he

is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296-297. In fact, the available

statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8%

of all burglaries involved violent crime. ***

V

We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the

individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b), and is not subject to liability. The possible

liability of the remaining defendants -- the Police Department and the city of Memphis -- hinges on Monell v. New York City

Dept. of Social Services, 436 U.S. 658 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to

give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue

by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this

opinion.

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So ordered.

***

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to

apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the

majority's balancing of the interests of the suspect and the public interest in effective law enforcement. ***. Notwithstanding the

venerable common law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued

acceptance of this rule by nearly half the States, ***, the majority concludes that Tennessee's statute is unconstitutional inasmuch

as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although

the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the

history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and

dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth

Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has

ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth

Amendment supports such a right, and I accordingly dissent.

I

The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in

these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was

in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house

next door. *** The officers found the residence had been forcibly entered through a window, and saw light on inside the house.

Officer Hymon testified that, when he saw the broken window, he realized "that something was wrong inside," ***, but that he

could not determine whether anyone -- either a burglar or a member of the household -- was within the residence. ***. As Officer

Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the

dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult, and was

unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might

have had on his person." ***. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices

remained inside the house. ***. The officer identified himself as a police officer and ordered Garner to halt. Garner paused

briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his

revolver and mortally wounded the suspected burglar.

Appellee-respondent, the deceased's father, filed a 42 U.S.C. § 1983 action in federal court against Hymon, the city of

Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western

District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to

"use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly

resist." Tenn.Code Ann. § 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only

if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends

to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v.

State, 173 Tenn. 134, 114 S.W.2d (1938). The District Court held that the Tennessee statute is constitutional, and that Hymon's

actions, as authorized by that statute, did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit

reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in

order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d

240, 244 (1983).

The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force

constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis,

because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional

validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of

deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's

assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ***, is

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unexceptionable, but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement

that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally

unreasonable." ***. The question we must address is whether the Constitution allows the use of such force to apprehend a

suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.

II

For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Gamer by shooting him.

Whether that seizure was reasonable, and therefore permitted by the Fourth Amendment, requires a careful balancing of the

important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of

the individual. United States v. Place, 462 U.S. 696, 703 (1983). In striking this balance here, it is crucial to acknowledge that

police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily

[involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1, 20

(1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain

and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment

proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the

support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must

respond to the reality of social and technological change, fidelity to the notion of constitutional -- as opposed to purely judicial --

limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth

Amendment was adopted are now constitutionally impermissible. ***

The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates

primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but

also "pos[e] real risk of serious harm to others." Solem v. Helm, 463 U.S. 277, 315-316 (1983) (BURGER, C.J., dissenting).

According to recent Department of Justice statistics, [t]hree-fifths of all rapes in the home, three-fifths of all home robberies, and

about a third of home aggravated and simple assaults are committed by burglars.

*** During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a

forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that

"burglaries only rarely involve physical violence." Ante at 21. Moreover, even if a particular burglary, when viewed in retrospect,

does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude

characterization of the crime as "innocuous, inconsequential, minor, or `nonviolent.'" ***

Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of

compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last

resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation

simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. ***Although some law

enforcement agencies may choose to assume the risk that a criminal will remain at large, the Tennessee statute reflects a

legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such

statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to

stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247,

1252-1253 ***

The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not

support [the] thesis" that the threat of force discourages escape, and that "there is a substantial basis for doubting that the use of

such force is an essential attribute to the arrest power in all felony cases." Ante at 10, 11. There is no question that the

effectiveness of police use of deadly force is arguable, and that many States or individual police departments have decided not to

authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity

of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447, 464 (1984) ("The

Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to

administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional

grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the

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necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment

of the Bill of Rights and continues to be accepted by a substantial number of the States.

Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in

the use of deadly force by police officers. The majority declares that "[t]he suspect's fundamental interest in his own life need not

be elaborated upon." ***. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge

the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall

that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered

him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer

reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the

importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a

burglary. Cf. Payton v. New York, 445 U.S. 573, 617, n. 14 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not

be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement

personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee

statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.

A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect

fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the

events giving rise to this case are, in retrospect, deeply regrettable. No one can view the death of an unarmed and apparently

nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for

purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action.

The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The police

officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He

ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon

to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate

nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last

resort, to shoot a burglary suspect fleeing the scene of the crime.

Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other

constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also

alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel

and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not

addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the

fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." ***. The Court of

Appeals concluded that a statute allowing police use of deadly force is narrowly drawn, and therefore constitutional only if the

use of such force is limited to situations in which the suspect poses an immediate threat to others. ***. Whatever the validity of

Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process

of law." Cf. Baker v. McCollan, 443 U.S. 137, 144-145 (1979). Nor do I believe that a criminal suspect who is shot while trying

to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v.

Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use

of deadly force was intended to punish, rather than to capture, the suspect, there is no valid claim under the Eighth Amendment.

See Bell v. Wolfish, 441 U.S. 520, 538-539 (1979). Accordingly, I conclude that the District Court properly entered judgment

against appellee-respondent, and I would reverse the decision of the Court of Appeals.

III

Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the

Court's opinion. The Court holds that deadly force may be used only if the suspect threatens the officer with a weapon or there is

probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

***. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts

that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of

serious physical harm to others. ***. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that

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the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los

Angeles v. Lyons, 461 U.S. 95 (1983).

Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only

those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for

Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later

with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing

suspect. The Court's opinion, despite its broad language, actually decides only that the shooting of a fleeing burglary suspect who

was in fact neither armed nor dangerous can support a § 1983 action.

The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police

decisions that must be made quickly in the most trying of circumstances. ***. Police are given no guidance for determining

which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the

use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing

that a suspect "poses a significant threat of death or serious physical injury," ***, when the officer has probable cause to arrest

and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that

ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to

flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police

officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the

crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in

which police officers can reasonably employ deadly force.

IV

The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to

apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, a longstanding police

practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I

cannot accept the majority's creation of a constitutional right to flight for burglary suspects seeking to avoid capture at the scene

of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not

believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential

burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I resp

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Graham v. Connor

No. 87-6571 United States Supreme Court

490 U.S. 386 (1989) 109 S.Ct. 1865, 104 L.Ed.2d 443, 57 U.S.L.W. 4513 May 15, 1989

CERTIORARI TO THE UDNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Syllabus

Petitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to

counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham

hurried out and asked Berry to drive him to a friend's house instead. Respondent Connor, a city police officer, became suspicious

after seeing Graham hastily enter and leave the store, followed Berry's car, and made an investigative stop, ordering the pair to

wait while he found out what had happened in the store. Respondent backup police officers arrived on the scene, handcuffed

Graham, and ignored or rebuffed attempts to explain and treat Graham's condition. During the encounter, Graham sustained

multiple injuries. He was released when Conner learned that nothing had happened in the store. Graham filed suit in the District

Court under 42 U.S.C. § 1983 against respondents, alleging that they had used excessive force in making the stop, in violation of

"rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." The District

Court granted respondents' motion for a directed verdict at the close of Graham's evidence, applying a four-factor test for

determining when excessive use of force gives rise to a § 1983 cause of action, which inquires, inter alia, whether the force was

applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing

harm. Johnson v. Glick, 481 F.2d 1028. The Court of Appeals affirmed, endorsing this test as generally applicable to all claims of

constitutionally excessive force brought against government officials, rejecting Graham's argument that it was error to require

him to prove that the allegedly excessive force was applied maliciously and sadistically to cause harm, and holding that a

reasonable jury applying the Johnson v. Glick test to his evidence could not find that the force applied was constitutionally

excessive.

Held: All claims that law enforcement officials have used excessive force -- deadly or not -- in the course of an arrest,

investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective

reasonableness" standard, rather than under a substantive due process standard.

(a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected.

Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then

judge the claim by reference to the specific constitutional standard which governs that right.

(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other

"seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which

guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to

the Fourth Amendment's "reasonableness" standard.

(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of

the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a

particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an

allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a

particular situation.

(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper Fourth Amendment analysis. The

suggestion that the test's "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively

unreasonable under the circumstances is rejected. Also rejected is the conclusion that, because individual officers' subjective

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motivations are of central importance in deciding whether force used against a convicted prisoner violates the Eighth

Amendment, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee

violates the Fourth Amendment. The Eighth Amendment terms "cruel" and "punishment" clearly suggest some inquiry into

subjective state of mind, whereas the Fourth Amendment term "unreasonable" does not. Moreover, the less protective Eighth

Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with

criminal prosecutions.

827 F.2d 945, vacated and remanded.

***

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This case requires us to decide what constitutional standard governs a free citizen's claim that law enforcement officials used

excessive force in the course of making an arrest, investigatory stop, or other "seizure" of his person. We hold that such claims

are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due

process standard.

In this action under 42 U.S.C. § 1983, petitioner Dethorne Graham seeks to recover damages for injuries allegedly sustained

when law enforcement officers used physical force against him during the course of an investigatory stop. Because the case

comes to us from a decision of the Court of Appeals affirming the entry of a directed verdict for respondents, we take the

evidence hereafter noted in the light most favorable to petitioner. On November 12, 1984, Graham, a diabetic, felt the onset of an

insulin reaction. He asked a friend, William Berry, to drive him to a nearby convenience store so he could purchase some orange

juice to counteract the reaction. Berry agreed, but when Graham entered the store, he saw a number of people ahead of him in the

checkout line. Concerned about the delay, he hurried out of the store and asked Berry to drive him to a friend's house instead.

Respondent Connor, an officer of the Charlotte, North Carolina, Police Department, saw Graham hastily enter and leave the

store. The officer became suspicious that something was amiss, and followed Berry's car. About one-half mile from the store, he

made an investigative stop. Although Berry told Connor that Graham was simply suffering from a "sugar reaction," the officer

ordered Berry and Graham to wait while he found out what, if anything, had happened at the convenience store. When Officer

Connor returned to his patrol car to call for backup assistance, Graham got out of the car, ran around it twice, and finally sat

down on the curb, where he passed out briefly.

In the ensuing confusion, a number of other Charlotte police officers arrived on the scene in response to Officer Connor's

request for backup. One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring

Berry's pleas to get him some sugar. Another officer said:

I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M.F. but drunk. Lock the S.B.

up.

Several officers then lifted Graham up from behind, carried him over to Berry's car, and placed him face down on its hood.

Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of

the officers told him to "shut up" and shoved his face down against the hood of the car. Four officers grabbed Graham and threw

him headfirst into the police car. A friend of Graham's brought some orange juice to the car, but the officers refused to let him

have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers

drove him home and released him.

At some point during his encounter with the police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead,

and an injured shoulder; he also claims to have developed a loud ringing in his right ear that continues to this day. He

commenced this action under 42 U.S.C. § 1983 against the individual officers involved in the incident, all of whom are

respondents here,[1] alleging that they had used excessive force in making the investigatory stop, in violation of "rights secured

to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." The case was tried before a

jury. At the close of petitioner's evidence, respondents moved for a directed verdict. In ruling on that motion, the District Court

considered the following four factors, which it identified as "[t]he factors to be considered in determining when the excessive use

130

of force gives rise to a cause of action under § 1983": (1) the need for the application of force; (2) the relationship between that

need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) "[w]hether the force was applied in a

good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm." 644

F.Supp. 246, 248 (WDNC 1986). Finding that the amount of force used by the officers was "appropriate under the

circumstances," that "[t]here was no discernible injury inflicted," and that the force used "was not applied maliciously or

sadistically for the very purpose of causing harm," but in "a good faith effort to maintain or restore order in the face of a

potentially explosive situation," id. at 248-249, the District Court granted respondents' motion for a directed verdict.

A divided panel of the Court of Appeals for the Fourth Circuit affirmed. *** The majority ruled first that the District Court

had applied the correct legal standard in assessing petitioner's excessive force claim. ***. Without attempting to identify the

specific constitutional provision under which that claim arose,[3] the majority endorsed the four-factor test applied by the District

Court as generally applicable to all claims of "constitutionally excessive force" brought against governmental officials***. The

majority rejected petitioner's argument, based on Circuit precedent,[4] that it was error to require him to prove that the allegedly

excessive force used against him was applied "maliciously and sadistically for the very purpose of causing harm." *** Finally,

the majority held that a reasonable jury applying the four-part test it had just endorsed to petitioner's evidence "could not find that

the force applied was constitutionally excessive." *** The dissenting judge argued that this Court's decisions in Terry v. Ohio,

392 U.S. 1 (1968), and Tennessee v. Garner, 471 U.S. 1 (1985), required that excessive force claims arising out of investigatory

stops be analyzed under the Fourth Amendment's "objective reasonableness" standard. 827 F.2d at 950-952. We granted

certiorari, *** and now reverse.

Fifteen years ago, in Johnson v. Glick, 481 F.2d 1028 (CA2), cert. denied, 414 U.S. 1033 (1973), the Court of Appeals for

the Second Circuit addressed a § 1983 damages claim filed by a pretrial detainee who claimed that a guard had assaulted him

without justification. In evaluating the detainee's claim, Judge Friendly applied neither the Fourth Amendment nor the Eighth, the

two most textually obvious sources of constitutional protection against physically abusive governmental conduct. Instead, he

looked to "substantive due process," holding that, quite apart from any "specific" of the Bill of Rights, application of undue force

by law enforcement officers deprives a suspect of liberty without due process of law.

***As support for this proposition, he relied upon our decision in Rochin v. California, 342 U.S. 165 (1952), which used the

Due Process Clause to void a state criminal conviction based on evidence obtained by pumping the defendant's stomach. 481

F.2d at 1032-1033. If a police officer's use of force which "shocks the conscience" could justify setting aside a criminal

conviction, Judge Friendly reasoned, a correctional officer's use of similarly excessive force must give rise to a due process

violation actionable under § 1983. Ibid. Judge Friendly went on to set forth four factors to guide courts in determining "whether

the constitutional line has been crossed" by a particular use of force -- the same four factors relied upon by the courts below in

this case. Id. at 1033.

In the years following Johnson v. Glick, the vast majority of lower federal courts have applied its four-part "substantive due

process" test indiscriminately to all excessive force claims lodged against law enforcement and prison officials under § 1983,

without considering whether the particular application of force might implicate a more specific constitutional right governed by a

different standard. Indeed, many courts have seemed to assume, as did the courts below in this case, that there is a generic "right"

to be free from excessive force, grounded not in any particular constitutional provision, but rather in "basic principles of § 1983

jurisprudence."

We reject this notion that all excessive force claims brought under § 1983 are governed by a single generic standard. As we

have said many times, § 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal

rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). In addressing an excessive force claim brought

under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of

force. See id. at 140 ("The first inquiry in any § 1983 suit" is "to isolate the precise constitutional violation with which [the

defendant] is charged"). In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures

of the person or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of

constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by

reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force"

standard. See Tennessee v. Garner, supra, at 7-22 (claim of excessive force to effect arrest analyzed under a Fourth Amendment

standard); Whitley v. Albers, 475 U.S. 312, 318-326 (1986) (claim of excessive force to subdue convicted prisoner analyzed

131

under an Eighth Amendment standard).

Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most

properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be

secure in their persons . . . against unreasonable . . . seizures" of the person. This much is clear from our decision in Tennessee v.

Garner, supra. In Garner, we addressed a claim that the use of deadly force to apprehend a fleeing suspect who did not appear to

be armed or otherwise dangerous violated the suspect's constitutional rights, notwithstanding the existence of probable cause to

arrest.

Though the complaint alleged violations of both the Fourth Amendment and the Due Process Clause, see 471 U.S. at 5,

we analyzed the constitutionality of the challenged application of force solely by reference to the Fourth Amendment's

prohibition against unreasonable seizures of the person, holding that the "reasonableness" of a particular seizure depends not only

on when it is made, but also on how it is carried out. Id. at 7-8. Today we make explicit what was implicit in Garner's analysis,

and hold that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest,

investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness"

standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual

source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more

generalized notion of "substantive due process," must be the guide for analyzing these claims.

Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires

a careful balancing of "`the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the

countervailing governmental interests at stake. Id. at 8, quoting United States v. Place, 462 U.S. 696, 703 (1983). Our Fourth

Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S. at 22-27. Because "[t]he

test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v.

Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner,

471 U.S. at 8-9 (the question is "whether the totality of the circumstances justifie[s] a particular sort of. . . seizure").

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 20-22. The Fourth Amendment is not violated by an

arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U.S. 797 (1971), nor by the

mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U.S. 79 (1987). With respect to

a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may

later seem unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F.2d at 1033, violates the Fourth Amendment.

The calculus of reasonableness must embody 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.

As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective

one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139 (1978); see also

Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be

judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force

constitutional. See Scott v. United States, supra, at 138, citing United States v. Robinson, 414 U.S. 218 (1973).

Because petitioner's excessive force claim is one arising under the Fourth Amendment, the Court of Appeals erred in

analyzing it under the four-part Johnson v. Glick test. That test, which requires consideration of whether the individual officers

acted in "good faith" or "maliciously and sadistically for the very purpose of causing harm," is incompatible with a proper Fourth

Amendment analysis. We do not agree with the Court of Appeals' suggestion, see 827 F.2d at 948, that the "malicious and

sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances. Whatever

132

the empirical correlations between "malicious and sadistic" behavior and objective unreasonableness may be, the fact remains

that the "malicious and sadistic" factor puts in issue the subjective motivations of the individual officers, which our prior cases

make clear has no bearing on whether a particular seizure is "unreasonable" under the Fourth Amendment. Nor do we agree with

the Court of Appeals' conclusion, ***, that, because the subjective motivations of the individual officers are of central importance

in deciding whether force used against a convicted prisoner violates the Eighth Amendment, see Whitley v. Albers, 475 U.S. at

320-321, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the

Fourth Amendment. Differing standards under the Fourth and Eighth Amendments are hardly surprising: the terms "cruel" and

"punishment" clearly suggest some inquiry into subjective state of mind, whereas the term "unreasonable" does not. Moreover,

the less protective Eighth Amendment standard applies "only after the State has complied with the constitutional guarantees

traditionally associated with criminal prosecutions." Ingraham v. Wright, 430 U.S. 651, 671 *** The Fourth Amendment inquiry

is one of "objective reasonableness" under the circumstances, and subjective concepts like "malice" and "sadism" have no proper

place in that inquiry.

Because the Court of Appeals reviewed the District Court's ruling on the motion for directed verdict under an erroneous

view of the governing substantive law, its judgment must be vacated and the case remanded to that court for reconsideration of

that issue under the proper Fourth Amendment standard.

It is so ordered.

BLACKMUN, J., concurring

***

I join the Court's opinion insofar as it rules that the Fourth Amendment is the primary tool for analyzing claims of excessive

force in the prearrest context, and I concur in the judgment remanding the case to the Court of Appeals for reconsideration of the

evidence under a reasonableness standard. In light of respondents' concession, however, that the pleadings in this case properly

may be construed as raising a Fourth Amendment claim, see Brief for Respondents 3, I see no reason for the Court to find it

necessary further to reach out to decide that prearrest excessive force claims are to be analyzed under the Fourth Amendment,

rather than under a substantive due process standard. I also see no basis for the Court's suggestion, ante at 395, that our decision

in Tennessee v. Garner, 471 U.S. 1 (1985), implicitly so held. Nowhere in Garner is a substantive due process standard for

evaluating the use of excessive force in a particular case discussed; there is no suggestion that such a standard was offered as an

alternative and rejected.

In this case, petitioner apparently decided that it was in his best interest to disavow the continued applicability of substantive

due process analysis as an alternative basis for recovery in prearrest excessive force cases. See Brief for Petitioner 20. His choice

was certainly wise as a matter of litigation strategy in his own case, but does not (indeed, cannot be expected to) serve other

potential plaintiffs equally well. It is for that reason that the Court would have done better to leave that question for another day. I

expect that the use of force that is not demonstrably unreasonable under the Fourth Amendment only rarely will raise substantive

due process concerns. But until I am faced with a case in which that question is squarely raised, and its merits are subjected to

adversary presentation, I do not join in foreclosing the use of substantive due process analysis in prearrest cases.

---------

Notes: ***

133

__ U.S. __ (2014)

134 S.Ct. 2012, 188 L.Ed.2d 1056, 82 U.S.L.W. 4394

OFFICER VANCE PLUMHOFF, ET AL., PETITIONERS

v.

WHITNE RICKARD, A MINOR CHILD, INDIVIDUALLY, AND AS SURVIVING DAUGHTER OF DONALD RICKARD,

DECEASED, BY AND THROUGH HER MOTHER SAMANTHA RICKARD, AS PARENT AND NEXT FRIEND

No. 12-1117

United States Supreme Court

May 27, 2014

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Reversed and remanded.

SYLLABUS *** Donald Rickard led police officers on a high-speed car chase that came to a temporary halt when

Rickard spun out into a parking lot. Rickard resumed maneuvering his car, and as he continued to use the accelerator even though

his bumper *** was flush against a patrol car, an officer fired three shots into Rickard's car. Rickard managed to drive away,

almost hitting an officer in the process. Officers fired 12 more shots as Rickard sped away, striking him and his passenger, both

of whom died from some combination of gunshot wounds and injuries suffered when the car eventually crashed.

Respondent, Rickard's minor daughter, filed a 42 U.S.C. § 1983 action, alleging that the officers used excessive force

in violation of the Fourth and Fourteenth Amendments. The District Court denied the officers' motion for summary judgment

based on qualified immunity, holding that their conduct violated the Fourth Amendment and was contrary to clearly established

law at the time in question. After finding that it had appellate jurisdiction, the Sixth Circuit held that the officers' conduct violated

the Fourth Amendment. It affirmed the District Court's order, suggesting that it agreed that the officers violated clearly

established law.

Held :

1****.

2. The officers' conduct did not violate the Fourth Amendment.

(a)***.

(b) Respondent's excessive-force argument requires analyzing the totality of the circumstances from the perspective "

of a reasonable officer on the scene." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443. Respondent

contends that the Fourth Amendment did not allow the officers to use deadly force to terminate the chase, and that, even if they

were permitted to fire their weapons, they went too far when they fired as many rounds as they did.

(1) The officers acted reasonably in using deadly force. A " police officer's attempt to terminate a dangerous high-

speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the

fleeing motorist at risk of serious injury or death." *** Rickard's outrageously reckless driving--which lasted more than five

minutes, exceeded 100 miles per hour, and included the passing of more than two dozen other motorists--posed a grave public

safety risk, and the record conclusively disproves that the chase was over when Rickard's car came to a temporary standstill and

officers began shooting. Under the circumstances when the shots were fired, all that a reasonable officer could have concluded

from Rickard's conduct was that he was intent on resuming his flight, which would again pose a threat to others on the road.

(2) Petitioners did not fire more shots than necessary to end the public safety risk. It makes sense that, if officers are

justified in firing at a suspect in order to end a severe threat to public safety, they need not stop shooting until the threat has

ended. Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee and eventually

managed to drive away. A passenger's presence does not bear on whether officers violated Rickard's Fourth Amendment rights,

134

which " are personal rights [that] may not be vicariously asserted." ***.

3. ***

OPINION

ALITO JUSTICE

***

I

A

Because this case arises from the denial of the officers' motion for summary judgment, we view the facts in the light

most favorable to the nonmoving party, the daughter of the driver who attempted to flee. Wilkie v . Robbins, 551 U.S. 537, 543,

n. 2, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Near midnight on July 18, 2004, Lieutenant Joseph Forthman of the West

Memphis, Arkansas, Police Department pulled over a white Honda Accord because the car had only one operating headlight.

Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. Forthman noticed an indentation, "

'roughly the size of a head or a basketball'" in the windshield of the car. ***. He asked Rickard if he had been drinking, and

Rickard responded that he had not. Because Rickard failed to produce his driver's license upon request and appeared nervous,

Forthman asked him to step out of the car. Rather than comply with Forthman's request, Rickard sped away.

Forthman gave chase and was soon joined by five other police cruisers driven by Sergeant Vance Plumhoff and

Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner. The officers pursued Rickard east on Interstate 40 toward

Memphis, Tennessee. While on I-40, they attempted to stop Rickard using a " rolling roadblock," id., at *2, but they were

unsuccessful. The District Court described the vehicles as " swerving through traffic at high speeds***, and respondent does not

dispute that the cars attained speeds over 100 miles per hour. ***.

Rickard eventually exited I-40 in Memphis, and shortly afterward he made " a quick right turn," causing " contact [to]

occu[r]" between his car and Evans' cruiser. ***. As a result of that contact, Rickard's car spun out into a parking lot and collided

with Plumhoff's cruiser. Now in danger of being cornered, Rickard put his car into reverse " in an attempt to escape." Ibid . As he

did so, Evans and Plumhoff got out of their cruisers and approached Rickard's car, and Evans, gun in hand, pounded on the

passenger-side window. At that point, Rickard's car " made contact with" yet another police cruiser. Ibid. Rickard's tires started

spinning, and his car " was rocking back and forth," ibid., indicating that Rickard was using the accelerator even though his

bumper was flush against a police cruiser. At that point, Plumhoff fired three shots into Rickard's car. Rickard then " reversed in a

180 degree arc" and " maneuvered onto" another street, forcing Ellis to " step to his right to avoid the vehicle." As Rickard

continued " fleeing down" that street, ibid., Gardner and Galtelli fired 12 shots toward Rickard's car, bringing the total number of

shots fired during this incident to 15. Rickard then lost control of the car and crashed into a building. Rickard and Allen both

died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase.

B

Respondent, Rickard's surviving daughter, filed this action under Rev. Stat. § 1979, 42 U.S.C. § 1983, against the six

individual police officers and the mayor and chief of police of West Memphis. She alleged that the officers used excessive force

in violation of the Fourth and Fourteenth Amendments.

The officers moved for summary judgment based on qualified immunity, but the District Court denied that motion,

holding that the officers' conduct violated the Fourth Amendment and was contrary to law that was clearly established at the time

in question. The officers appealed, but a Sixth Circuit motions panel initially dismissed the appeal for lack of jurisdiction based

on this Court's decision in ***. Later, however, that panel granted rehearing, vacated its dismissal order, and left the jurisdictional

issue to be decided by a merits panel.

***

II

***

135

III

A

Petitioners contend that the decision of the Court of Appeals is wrong for two separate reasons. They maintain that

they did not violate Rickard's Fourth Amendment rights and that, in any event, their conduct did not violate any Fourth

Amendment rule that was clearly established at the time of the events in question.

*** [W]e begin in this case with the question whether the officers' conduct violated the Fourth Amendment. This

approach, we believe, will be " beneficial" in " develop[ing] constitutional precedent" in an area that courts typically consider in

cases in which the defendant asserts a qualified immunity defense. See Pearson, supra, at 236, 129 S.Ct. 808, 172 L.Ed.2d 565.

B

A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth

Amendment's " reasonableness" standard. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989);

Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In Graham, we held that determining the objective

reasonableness of a particular seizure under the Fourth Amendment " requires a careful balancing of the nature and quality of the

intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." 490 U.S. at

396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (internal quotation marks omitted). The inquiry requires analyzing the totality of the

circumstances. *** .

We analyze this question from the perspective " of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight." Ibid . We thus " allo[w] 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." Id., at 396-397, 109 S.Ct. 1865, 104 L.Ed.2d 443.

In this case, respondent advances two main Fourth Amendment arguments. First, she contends that the Fourth

Amendment did not allow petitioners to use deadly force to terminate the chase. *** Second, she argues that the " degree of force

was excessive," that is, that even if the officers were permitted to fire their weapons, they went too far when they fired as many

rounds as they did. ***. We address each issue in turn.

1

In Scott, we considered a claim that a police officer violated the Fourth Amendment when he terminated a high-speed

car chase by using a technique that placed a " fleeing motorist at risk of serious injury or death." 550 U.S. at 386, 127 S.Ct. 1769,

167 L.Ed.2d 686. The record in that case contained a videotape of the chase, and we found that the events recorded on the tape

justified the officer's conduct. We wrote as follows: " Although there is no obvious way to quantify the risks on either side, it is

clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been

present, to other civilian motorists, and to the officers involved in the chase." Id., at 383-384, 127 S.Ct. 1769, 167 L.Ed.2d 686.

We also wrote:

" [R]espondent's vehicle rac[ed] down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it

swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their

respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the

occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to

keep up." Id., at 379-380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (footnote omitted).

In light of those facts, " we [thought] it [was] quite clear that [the police officer] did not violate the Fourth

Amendment." Id., at 381, 127 S.Ct. 1769, 167 L.Ed.2d 686. We held that a " police officer's attempt to terminate a dangerous

high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places

the fleeing motorist at risk of serious injury or death." [3] Id., at 386, 127 S.Ct. 1769, 167 L.Ed.2d 686.

136

We see no basis for reaching a different conclusion here. As we have explained *** the chase in this case exceeded

100 miles per hour and lasted over five minutes. During that chase, Rickard passed more than two dozen other vehicles, several

of which were forced to alter course. Rickard's outrageously reckless driving posed a grave public safety risk. And while it is true

that Rickard's car eventually collided with a police car and came temporarily to a near standstill, that did not end the chase. Less

than three seconds later, Rickard resumed maneuvering his car. Just before the shots were fired, when the front bumper of his car

was flush with that of one of the police cruisers, Rickard was obviously pushing down on the accelerator because the car's wheels

were spinning, and then Rickard threw the car into reverse " in an attempt to escape." Thus, the record conclusively disproves

respondent's claim that the chase in the present case was already over when petitioners began shooting. Under the circumstances

at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on

resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road. Rickard's

conduct even after the shots were fired--as noted, he managed to drive away despite the efforts of the police to block his path--

underscores the point.

In light of the circumstances we have discussed, it is beyond serious dispute that Rickard's flight posed a grave public

safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk.

2

We now consider respondent's contention that, even if the use of deadly force was permissible, petitioners acted

unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers are justified in firing

at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As

petitioners noted below, "if lethal force is justified, officers are taught to keep shooting until the threat is over." ***.

Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee. Indeed,

even after all the shots had been fired, he managed to drive away and to continue driving until he crashed. This would be a

different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had

ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened.

In arguing that too many shots were fired, respondent relies in part on the presence of Kelly Allen in the front seat of

the car, but we do not think that this factor changes the calculus. Our cases make it clear that " Fourth Amendment rights are

personal rights which . . . may not be vicariously asserted." *** Thus, the question before us is whether petitioners violated

Rickard's Fourth Amendment rights, not Allen's. If a suit were brought on behalf of Allen under either § 1983 or state tort law,

the risk to Allen would be of central concern. But Allen's presence in the car cannot enhance Rickard's Fourth Amendment rights.

After all, it was Rickard who put Allen in danger by fleeing and refusing to end the chase, and it would be perverse if his

disregard for Allen's safety worked to his benefit.

C

We have held that petitioners' conduct did not violate the Fourth Amendment, but even if that were not the case,

petitioners would still be entitled to summary judgment based on qualified immunity.

An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory

or constitutional right that was " 'clearly established'" at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. ___,

___, 131 S.Ct. 2074, 2077, 179 L.Ed.2d 1149, 1153 (2011) . And a defendant cannot be said to have violated a clearly established

right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have

understood that he was violating it. Id., at ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149, 1159 . In other words, " existing

precedent must have placed the statutory or constitutional question" confronted by the official " beyond debate." Ibid. In addition,

" [w]e have repeatedly told courts . . . not to define clearly established law at a high level of generality," id., at ___ (131 S.Ct.

2074, 2084, 179 L.Ed.2d 1149, 1160), since doing so avoids the crucial question whether the official acted reasonably in the

particular circumstances that he or she faced. We think our decision in Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160

L.Ed.2d 583 (2004) ( per curiam ) squarely demonstrates that no clearly established law precluded petitioners' conduct at the time

in question. In Brosseau, we held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to

prevent possible harm to " other officers on foot who [she] believed were in the immediate area, . . . occupied vehicles in [the

driver's] path[,] and . . . any other citizens who might be in the area." Id., at 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (quoting 339

137

F.3d 857, 865 (CA9 2003); internal quotation marks omitted). After surveying lower court decisions regarding the reasonableness

of lethal force as a response to vehicular flight, we observed that this is an area " in which the result depends very much on the

facts of each case" and that the cases " by no means 'clearly establish[ed]' that [the officer's] conduct violated the Fourth

Amendment." 543 U.S. at 201, 125 S.Ct. 596, 160 L.Ed.2d 583. In reaching that conclusion, we held that Garner and Graham,

which are " cast at a high level of generality," did not clearly establish that the officer's decision was unreasonable. 543 U.S. at

199, 125 S.Ct. 596, 160 L.Ed.2d 583.

Brosseau makes plain that as of February 21, 1999--the date of the events at issue in that case--it was not clearly

established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger. We did not

consider later decided cases because they " could not have given fair notice to [the officer]." Id., at 200, n. 4, 125 S.Ct. 596, 160

L.Ed.2d 583. To defeat immunity here, then, respondent must show at a minimum either (1) that the officers' conduct in this case

was materially different from the conduct in Brosseau or (2) that between February 21, 1999, and July 18, 2004, there emerged

either " 'controlling authority'" or a " robust 'consensus of cases of persuasive authority,'" al-Kidd, supra, at ___, 131 S.Ct. 2074,

2084, 179 L.Ed.2d 1149, 1159) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); some

internal quotation marks omitted), that would alter our analysis of the qualified immunity question. Respondent has made neither

showing.

To begin, certain facts here are more favorable to the officers. In Brosseau, an officer on foot fired at a driver who

had just begun to flee and who had not yet driven his car in a dangerous manner. In contrast, the officers here shot at Rickard to

put an end to what had already been a lengthy, high-speed pursuit that indisputably posed a danger both to the officers involved

and to any civilians who happened to be nearby. Indeed, the lone dissenting Justice in Brosseau emphasized that in [134 S.Ct.

2024] that case, " there was no ongoing or prior high-speed car chase to inform the [constitutional] analysis." 543 U.S. at 206, n.

4, 125 S.Ct. 596, 160 L.Ed.2d 583 (opinion of Stevens, J.). Attempting to distinguish Brosseau, respondent focuses on the fact

that the officer there fired only 1 shot, whereas here three officers collectively fired 15 shots. But it was certainly not clearly

established at the time of the shooting in this case that the number of shots fired, under the circumstances present here, rendered

the use of force excessive.

Since respondent cannot meaningfully distinguish Brosseau, her only option is to show that its analysis was out of

date by 2004. Yet respondent has not pointed us to any case--let alone a controlling case or a robust consensus of cases--decided

between 1999 and 2004 that could be said to have clearly established the unconstitutionality of using lethal force to end a high-

speed car chase. And respondent receives no help on this front from the opinions below. The District Court cited only a single

case decided between 1999 and 2004 that identified a possible constitutional violation by an officer who shot a fleeing driver, and

the facts of that case--where a reasonable jury could have concluded that the suspect merely " accelerated to eighty to eighty-five

miles per hour in a seventy-miles-per-hour zone" and did not " engag[e] in any evasive maneuvers," Vaughan v. Cox, 343 F.3d

1323, 1330-1331 (CA11 2003)bear little resemblance to those here.

Under the circumstances present in this case, we hold that the Fourth Amendment did not prohibit petitioners from

using the deadly force that they employed to terminate the dangerous car chase that Rickard precipitated. In the alternative, we

note that petitioners are entitled to qualified immunity for the conduct at issue because they violated no clearly established law.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with

this opinion.

It is so ordered.

Notes: ***

138

OHIO HIGH SCHOOL MOCK TRIAL TIMEKEEPER MANUAL

Timekeepers’ Responsibilities

I. BEFORE THE TRIAL

A. Be sure to have in your Timekeeper’s Packet:

a) 1 Timekeeping Sheet;

b) 1 Time Card Use Sheet;

c) 2 stop watches;

d) 1 set of time cards (teams MUST use the cards provided in the Competition

Manual)

B. Enter the courtroom; take your position (at the end of the jury box closest to the audience, if

possible). Rise when the judge and jury enter the courtroom. Be seated when the judge grants

permission for all to be seated.

II. DURING THE TRIAL

A. Enter the Trial Number and Team Names in the spaces provided at the top of the

Timekeeping Sheet. Arrange your stopwatches, time cards and Time Card Use Table.

B. Keep time during the trial, remembering the following.

1. Use one stopwatch for each side – PLAINTIFF on your left and DEFENSE on your right.

2. RESET stopwatch to zero only at the following times:

a) at the beginning of each side’s opening statement;

b) at the beginning of each side’s direct examination;

c) at the beginning of each side’s cross examination; and,

d) at the beginning of each side’s closing argument.

3. DO NOT reset stopwatch to zero at any other time.

a) DO NOT reset stopwatch to zero at the end of direct and cross examinations,

since you will need to resume direct examination timing for redirect questioning,

and cross examination time for re-cross questioning;

b) DO NOT reset stopwatch to zero at the end of the Plaintiff/Prosecution’s closing

argument, since you will need to resume the Plaintiff/Prosecution’s closing

argument timing for the Plaintiff/Prosecution’s rebuttal.

4. START timing only when the actual opening statement/closing argument or questioning

begins (e.g., do not start when an attorney asks to reserve time for rebuttal or when a

witness is sworn).

5. STOP timing during objections, responses to objections, and questioning by the judge.

6. During the trial if there is more than a 15 second discrepancy between the

Plaintiff/Prosecution and Defense teams’ timekeepers, the procedure outlined below in

Section V will be followed.

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C. Display time cards to the attorneys and witnesses at the intervals set out in the Time Card Use

Table. Display the STOP card to the presiding, scoring judges, and teams.

D. At the conclusion of the trial, if either side informs the court that it wishes to file a dispute and

a dispute hearing is granted, please time the additional three-minute argument per side.

III. DURING THE RECESS

A. Add the time used for each side and sign the timekeeping sheet.

B. Give your timesheet to the presiding judge.

C. Remind the judges that they have 12 minutes for debriefing and that you will signal when

time for debriefing has expired.

D. Help teams straighten up the courtroom for the next round.

IV. AFTER THE RECESS

A. Reset your stopwatch to zero and start time for the debriefing.

B. Signal the presiding judge when the 12 minutes allowed for debriefing have expired.

V. DISCREPANCIES IN TIME BETWEEN TEAM TIMEKEEPERS

A. If a time-keeping discrepancy of more than 15 seconds is discovered between the plaintiff

and defense teams’ timekeepers, the timekeepers should notify the presiding judge as soon

as the discrepancy is discovered. In this event, one of the timekeepers should stand, wait

to be recognized, and say “Your honor, we have a time discrepancy of more than 15

seconds.”

B. The presiding judge will rule on any time discrepancy before the trial continues.

Timekeepers will synchronize stop watches to match the presiding judge’s ruling (for

example if Plaintiff stop watch indicates 2 minutes left on a direct examination and the

Defense stop watch indicates time is expired, the presiding judge may decide to split the

difference in the timing variation and give Plaintiff 1 minute to conclude the direct

examination. Defense would adjust timing to allow for the 1 minute timing decision.)

C. Any discrepancies between timekeepers less than 15 seconds will not be considered a

violation.

D. Timekeepers may raise time discrepancies of 15 seconds or more as soon as they are

discovered. No time disputes will be entertained after the trial concludes. The decisions

of the presiding judge regarding the resolution of timing disputes are final.

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OH I O H I G H SC HO O L MO C K TRI AL CO MPETI TI O N

Timekeeper Instructions

1. ALL TEAMS are to bring two (2) STOPWATCHES and a trained TIMEKEEPER. No

stopwatches and no timecards will be available at the competition site. Your timekeeper is to be one of the official team members listed on your roster. Timekeepers are to be so noted on your team roster in each

round.

2. TWO STOPWATCHES are needed by each team (one stop watch for keeping time for the Plaintiff

and one stop watch for keeping time for the Defense, regardless of which side your team is presenting), the

Timekeeper's Responsibilities Sheet AND your own "TIME-REMAINING" CARDS. Teams MUST use the

timekeeper cards provided in the Competition Manual. (The timekeeper must be familiar with the trial

sequence chart and have practiced completing the tally sheet before the tournament begins.) In each trial, the

timekeeper will sit in the jury box, if one is available, and keep time for both teams. In all trials, the official

timekeeper will turn in the timing sheet in to the presiding judge.

3. The official timekeeper will (a) keep accurate time for both teams; (b) show "time-remaining" cards to

both teams; and (c) notify the presiding judge that "TIME" has expired at the end of the trial by showing the

“STOP” card.

If a time-keeping discrepancy of more than 15 seconds is discovered between the plaintiff and defense

teams’ timekeepers, the timekeepers should notify the presiding judge as soon as the discrepancy is

discovered. In this event, one of the timekeepers should stand, wait to be recognized, and say “Your honor,

we have a time discrepancy of more than 15 seconds. The procedure below will then be followed:

The presiding judge will rule on any time discrepancy before the trial continues. Timekeepers

will synchronize stop watches to match the presiding judge’s ruling (for example if Plaintiff stop

watch indicates 2 minutes left on a direct examination and the Defense stop watch indicates

time is expired, the presiding judge might decide to split the difference in the timing variation

and give Plaintiff 1 minute to conclude the direct examination. Defense would adjust timing to

allow for the 1 minute timing decision.)

Any discrepancies between timekeepers less than 15 seconds WILL NOT be considered a

violation.

Timekeepers may raise time discrepancies of 15 seconds or more as soon as they are

discovered. No time disputes will be entertained after the trial concludes. The decisions of the

presiding judge regarding the resolution of timing disputes are final.

Timekeepers’ cards, provided in the competition manual, are to show time remaining as indicated on

the Time Card Use sheet. Rounding seconds used up or down to whole minute integers will make

timekeeping easier. Both timekeepers are responsible for keeping accurate time.

REMEMBER:

Signed Timing Sheet is to be returned with the judges' packet at the conclusion of each round.

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Ohio High School Mock Trial Competition

Time Card Use Table

For Opening Statements

When your stopwatch says Hold up the timecard that says

1:00 3:00

2:00 2:00

3:00 1:00

3:30 :30

4:00 STOP

For Direct Examination

When your stopwatch says Hold up the timecard that says

5:00 15:00

10:00 10:00

15:00 5:00

16:00 4:00

17:00 3:00

18:00 2:00

19:00 1:00

19:30 :30

20:00 STOP

For Cross Examination

When your stopwatch says Hold up the timecard that says

3:00 15:00

8:00 10:00

13:00 5:00

14:00 4:00

15:00 3:00

16:00 2:00

17:00 1:00

17:30 0:30

18:00 STOP

For Closing Statements

When your stopwatch says Hold up the timecard that says

1:00 4:00

2:00 3:00

3:00 2:00

4:00 1:00

4:30 0:30

5:00 STOP

For Rebuttal – Plaintiff ONLY (Optional)

When your stopwatch says Hold up the timecard that says

1:00 1:00

2:00 STOP

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Ohio High School Mock Trial Competition Timekeeping Sheet

Plaintiff Team ________________________ Defense Team _____________________ Trial #______

___________________________________________________________________________________________

Opening Statements (4 minutes each)

Plaintiff _____

Defense _____

___________________________________________________________________________________________

Direct/Redirect Examination of Two Plaintiff Witnesses (20 total minutes)

FIRST WITNESS (ending time) _____

SECOND WITNESS (cumulative ending time) >20 = time violation) _____

____________________________________________________________________________________________

Cross/Recross Examination of Two Plaintiff Witnesses (18 total minutes)

FIRST WITNESS (ending time) _____

SECOND WITNESS (cumulative ending time) >18 = time violation) _____

___________________________________________________________________________________________

Direct/Redirect Examination of Two Defense Witnesses (20 total minutes)

FIRST WITNESS (ending time) _____

SECOND WITNESS (cumulative ending time) >20 = time violation) _____

___________________________________________________________________________________

Cross/Recross Examination of Two Defense Witnesses (18 total minutes)

FIRST WITNESS (ending time) _____

SECOND WITNESS (cumulative ending time) >18 = time violation) _____

___________________________________________________________________________________

Closing Arguments (5 minutes each)

Plaintiff ______

Defense ______

____________________________________________________________________________________________

Rebuttal (optional) (2 minutes)

Plaintiff _____

___________________________________________________________________________________

REMEMBER: CLOCK STOPS FOR OBJECTIONS!

TIMEKEEPER’S SIGNATURE

___________________________________________________________

143

15:00

10:00

144

5:00

4:00

145

3:00

2:00

146

1:00

:30

147

STOP

148

149

Acknowledgements

The steadfast support and expert advice of the Board of Trustees of the

Ohio Center for Law-Related Education is appreciated:

Marion Smithberger, board president, Columbus Bar Foundation

Pierce Reed, Esq., Supreme Court of Ohio

Pamela Vest Boratyn, Esq., Ohio Attorney General’s Office

Gary Daniels, ACLU of Ohio Foundation

Candice Christon, Esq., Ohio School Board Association

Liz Deegan, John Carroll University

Steven Dauterman, Esq., Fifth Third Bank

Thomas Friedman, Esq.

Daniel G. Hilson, Esq., Roetzel & Andress

Jonathan Hollingsworth, Esq., J. Hollingsworth & Associates

Karyn Justice, Esq., Law Office of Karyn Justice

The Case Committee who devoted many hours to create the

2015-2016 Ohio Mock Trial case is gratefully acknowledged:

Gerrod Bede, Esq. Organ Cole LLP

Paul Cox, Esq., Paul Cox Law Office

Drew Dennis, ACLU Ohio

Stephanie Graubner Nelson, Esq., Supreme Court of Ohio

Bob Hart Esq.

Jon Hsu, Esq., Ohio Environmental Review Appeals Commission*

Laura Jurcevich, Esq., Perez & Morris

Kara Keating, Esq., Franklin County Prosecutor’s Office

Joyce Martin, Esq.

Julie Lindstrom, Esq.

Ashon McKenzie, Esq., Ohio Attorney General

Joe Neff, Esq., City of Cincinnati Solicitors Office

Diana Ramos-Reardon, MPA, JD, Supreme Court of Ohio

Colleen Rosshirt, Supreme Court of Ohio

Adam Schira, Esq., Dickinson Wright

Jeremy Young, Esq., Roetzel & Andress*

*Co-Chair of the Case Committee

Special thanks to the University of Dayton students who served on the case committee:

Gurjot Kaur, Sean Kenny, Ethan McNemar, Kailey Ruggiero, Kristy Shoeck, Sydney Skidmore,

Nikita Srivastava

********************

OCLRE Sponsors

The Supreme Court of Ohio

Ohio Attorney General’s Office

Ohio State Bar Association

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American Civil Liberties Union of Ohio Foundation

OCLRE Staff

Lisa Eschleman, Executive Director

Kate Strickland, Deputy Director

Ryan Suskey, Director of Professional Development and Programs

Caitlyn Smith, Program Coordinator

Tim Kalgreen, Program Coordinator

Allison Smith, Administrative Assistant

Cathy Godfrey, Database Manager

Special Thanks To:

The Ohio Channel for contributing time and equipment to film the Mock Trial State

Championship Round.

The Ohio State Bar Association, for assistance in producing the case capsule video

Oregon Classroom Law Project, for its generosity in authorizing use of its 2015 High School

Mock Trial Case materials as inspiration for this year’s Ohio Mock Trial Case File.