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TABLE OF CONTENTS

Mock Trial Case File


Table of Contents
Copyright
A Note on Civility
Introduction
Competition Terms
Case Introduction
2016 Rules of Competition
Judging and Scoring Guidelines
Procedural Rules of Mock Trial Competition
Simplified Ohio Rules of Evidence
Examples of Common Objections and Trial Procedure
Scoring Error Notification
Complaint Form
Lori Urogdy-Eiler Award Nomination Form

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

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Special Instructions
Legal Documents
Legal Briefs
Witness Statements
AJ Bryant
Sam Jones
Justice Smith
Riley Green
Chris Abbott
Pat Sweeney
Exhibit A
Exhibit B
Exhibit C
Exhibit D

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42
43

Case Law

118

Time Keeper Instructions


Sample Score Sheet
Acknowledgements

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Putting on Mock Trials, published by the American Bar Association Division for Public
Education, 2002. Copyright 1990 American Bar Association, Reprinted with permission.

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

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 laws 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 publics 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 witnesss 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.

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.

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 years 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 Greens affirmative defense that the use of deadly force
was legally justified. This year, students will only consider Officer Greens 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.

The State of Harmony will present evidence to rebut Officer Greens 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
7

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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C.

II.

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.
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 OCLREs 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 LawRelated 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.

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 teams 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.

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 judges 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 teams 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.

III.

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.

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, email 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, timekeepers 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.

V.

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
students work rather than having the student simply memorize the words prepared by an
adult.

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 teams total points. If a split still persists, the scoring judges 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 judges 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 Judges 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 judges 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 judges 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
opponents 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 nonargumentative
Closing argument: continued theory of the case introduced in opening
statement, summarized the evidence, applied the applicable law, discussed

14

the burden of proof, concentrated on the important not the trivial, and
overall was persuasive
2.

Complies with Competition Rules


Witness Performance Indicators:
Knowledge of case facts and theory of teams 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 teams 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 teams score on each judges 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.

15

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 Judges 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 Defendants 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); OConnor v. Ortega, 480 U.S. 709 (1987),
and the case law provided in Mock Trial Case materials includes Katz but not OConnor,
then teams may use the full Katz case. However, they may not use any part of OConnor
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.

2.
3.
4.

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.
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.

Timing will begin at the Opening Statement, after the introductions are made.
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.
16

5.
6.

C.

Courtroom Setting
1.
2.
3.
4.
5.
6.
7.

D.

The time clock will stop for objections and responses.


The timekeeper will guide the judges comments by showing a 1:00 minute card
and a stop card 11 minutes and 12 minutes into the judges comments.

Plaintiff counsel on the right (facing bench).


Defendants counsel on the left (facing bench).
Witnesses behind counsel tables.
Judges on the bench (or, if necessary, in the jury box).
Bailiff in front of the bench.
The Timekeepers (unless also acting as bailiff) and video camera person
in the jury box, if possible.
Teachers and legal advisors behind the teams.

Conduct During Trial and Trial Sequence


1.

2.

3.

4.

5.
6.
7.

8.

The presiding judge controls the courtroom. S/he may ask anyone to leave, if
necessary. Teams may videotape their own trials at the presiding judges
discretion. Videos may be shared only with the teams featured in the specific
videos.
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.
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.
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 Plaintiffs 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.
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.
The trial, including judges comments, should not last longer than two hours.
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.
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
17

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
judges 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 Defendants 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 Plaintiffs 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.
18

d.
e.

f.

g.

Witnesses are bound by their written statements and should not be


assumed to have knowledge of facts set forth in the legal briefs, Judges
Order, the statements of other witnesses.
Witness statements may be used by counsel to impeach a witness or
refresh a witnesss 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.
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 witnesss 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.
If an attorney who is cross-examining a witness asks a question,
the answer to which is not included in the witnesss 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 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 Plaintiffs and Defendants counsel if they are ready to
present his/her closing arguments. Counsel for the Plaintiff will present his/her
closing argument first, followed by Defenses closing argument. Counsel for the
Plaintiff has the option of a two minute rebuttal after Defenses closing argument.
These two minutes do not have to be requested in advance. The optional rebuttal
is limited to the scope of the Defenses 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 teams
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,
19

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


penalty points from the teams 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 judges decision, however, is final, and no
appeals procedure is available. The clock stops for objections and judges 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 teams score on each judges 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.
20

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 teams 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.

21

II.

Condensed Trial Sequence and Time Guidelines (Running Clock):

Part of Trial
Pre-trial conference
Opening Statement Plaintiff
Opening Statement Defense
Direct and Re-Direct (2 witnesses)
Cross and Re-Cross (2 witnesses)

Minutes
10
4
4
20
18

Direct and Re-Direct (2 witnesses)


Cross and Re-Cross (2 witnesses)

20
18

Intermission to gather thoughts

Closing Statement Plaintiff


Closing Statement Defense

5
5

Rebuttal Plaintiff only

(optional)

Subtotal

108

Comments

12
TOTAL

120 = 2 HOURS

22

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 witnesss testimony during
cross-examination. [See also, Competition Instructions, Testimony of WitnessesGuidelines.]
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 youre 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.
23

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 firsthand, 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
witnesss 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 witnesss 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 isnt broken, dont 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:
Isnt it true that you have a deposition in which you testified that you did
not know the cause of death?
Witness:
Yes, thats true.

Re-Direct:
Attorney:
Doctor, why did you testify in your deposition that you did not know the
defendants 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, isnt 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 isnt always reliable.
Comment:
Neither one of these redirect examinations should have been conducted unless the
attorney had a good idea of what the witnesss response would be. As a general rule, it is not advisable to
ask a question if you dont 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.

24

Example:
Assume the cross-examination in the example above has occurred. A good re-cross-examination would be
the following:
Attorney:
Doctor, isnt it true that when you gave your deposition you had received all of the test
results except the result of test X?
Witness:
Yes, thats 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 witnesss 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 witnesss
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.

25

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.

26

(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:

27

(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 crossexamination 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.

28

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.

29

PART FOUR
EXAMPLES OF COMMON OBJECTIONS
AND TRIAL PROCEDURE
Procedure for Objections

I.
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 judges 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.
2.
3.
4.
5.

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


Irrelevant evidence that should be excluded: "Objection. This is unfairly prejudicial (or a waste
of time) and should be excluded because"
Leading question: "Objection. Counsel is leading the witness." (Remember, leading is only
objectionable if done on direct or redirect examination).
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.
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:
Witness:

6.
7.
8.

Isnt it true that you hit student B?


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 witnesss answer as nonresponsive 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.)
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."
Improper character testimony: "Objection. This is testimony about character that does not
relate to truthfulness or untruthfulness."
Improper opinion: "Objection. Counsel is asking the witness to give an expert opinion, and this
30

witness has not been qualified as an expert." OR "Objection. Counsels question calls for an
opinion which would not be helpful to understanding the witnesss testimony (or which is not
rationally based upon what the witness perceived.)"
Invention of facts: "Your Honor, we object on the basis that opposing counsels 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 concerningas beyond the
scope of the case materials."

9.

Example:
10.
11.
12.

If witness X did not personally see arsenic in the medicine cabinet of the
decedents wife, he cannot testify that she had arsenic in her medicine cabinet.
Lack of personal knowledge: Objection. The witness has no personal knowledge that would
allow her to answer this question.
Speculation: "Objection. The witness is speculating/this question calls for speculation." A hybrid
between lack of personal knowledge and improper opinion.
Hearsay: "Objection. Counsels 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 witnesss answer be stricken
from the record on the basis of hearsay."

Example:
Witness X testifies that Mrs. Smith said that the decedents wife
had a bottle of arsenic in her medicine cabinet. This testimony is inadmissible if
offered to prove that the decedents 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 outof-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. Smiths 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 decedents 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 Xs 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 partys] claim [or defense]
and a brief statement of [the partys] evidence to support it. Judge Richard M. Markus, Trial
Handbook for Ohio Lawyers (Thomson-West, 2006 Edition), 7:1, p. 305. A party seeking
31

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
clients favor into which all the favorable facts and all favorable legal authority neatly fit. A wellcrafted 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 sides 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 wont survive an objection, or the attorneys 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.
b.
2.

What did you see?


What happened next?

Leading questions (not permitted on direct):


a.
b.

Isnt it true that you saw the defendant run into the alley?
After you saw the defendant run into the alley, you called the
police, didnt you?

32

D. Cross Examination - Form of Questions


An attorney should usually, if not always, ask leading questions when cross-examining the
opponents 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 attorneys 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 attorneys 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:
Isnt 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 witnesss
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 wasnt 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
witnesss 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 witnesss 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 witnesss 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 Xs 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 witnesss expertise to the courts
33

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:
Witness:
Attorney:
Witness:

Doctor, please tell the jurors about your educational background.


I attended Harvard College and Harvard Medical School.
Do you practice in any particular area of medicine?
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.)
Id 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 witnesss 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 witnesss testimony.

Examples:
1.
Impeachment with prior inconsistent statement:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
Witness:
Attorney:

Mr. Jones, you testified on direct that you


saw the two cars before they actually collided, correct?
Yes.
You gave a deposition in this case a few months
ago, correct?
Yes.
Before you gave that deposition, you were sworn in
by the bailiff to tell the truth, werent you?
Yes.
Mr. Jones, in your deposition, you testified that the first
thing that drew your attention to the collision was when
34

Witness:
Attorney:

Witness:
Attorney:
2.

Impeachment with prior dishonest conduct:


Attorney:
Witness:

I.

you heard a loud crash, isnt that true?


I dont remember saying that.
Your Honor, may I approach the witness?
(Permission is granted.) Mr. Jones, Im handing you the
summary of your deposition and Ill 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?
Yes.
Thank you Mr. Jones.
Student X, isnt it true that last fall you were suspended
from school for three days for cheating on a test.
Yes.

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 witnesss 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 Defendants Exhibit A). Let the record
reflect that I am showing Plaintiff Exhibit 1 (or Defendants
Exhibit A) to opposing counsel. (Exhibit is shown to opposing
counsel.) Your Honor, may I approach the witness?
Judge: You may.
Attorney: Witness X, Im 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: Its 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.

35

Competition
Forms

36

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

Opponent:_______________________

37

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 judges decision is final. However, your remarks and solutions will be
carefully considered and brought before the Competition Committee, if warranted.
38

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.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
39

State Of
Harmony
v.
Riley Green
40

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.

41

IN THE COURT OF COMMON PLEAS,


BUCKEYE COUNTY, HARMONY

IN THE MATTER OF:


Riley Green

:
:
:

Case No. 2015-CR- 2030


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
Defendants 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 Defendants
affirmative defense is scheduled to begin on March 29, 2016.
SO ORDERED

_____________________
Judge Hegedus

42

IN THE COURT OF COMMON PLEAS,


BUCKEYE COUNTY, HARMONY

IN THE MATTER OF:


Riley Green

:
:
:

Case No. 2015-CR- 2030


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 Defendants affirmative defense that the actions giving rise to the
charge of felonious assault were legally justified. If there is a finding that
the Defendants 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.

43

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 anothers unborn;
(2) Cause or attempt to cause physical harm to another or to anothers 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 Officers 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 officers 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.

44

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 Defendants 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.
45

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

46

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 Greens order and Officer
Green repeated the order three times, each time yelling at AJ Bryant drop your weapon.
Instead of complying with Officer Greens 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 Bryants armor
apparel was for the Faires 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,

47

1699. However, all apprehensions by police do not violate the Fourth Amendment. Rather, an
apprehension must be found to be unreasonable. Restricting an individuals 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
officers 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.

48

Here, Officer Greens 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 Greens
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 AJs 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

49

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 Greens 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 officers presence.
Officer Greens 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 Greens 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

50

Bryants 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 Greens
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.

51

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 Greens 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.

52

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

53

IN THE COURT OF COMMON PLEAS OF BUCKEYE COUNTY,


STATE OF HARMONY
State of Harmony,

:
:
:
:
:
:
:
:
:

Plaintiff,
vs.
Riley Green,
Defendant.

Case No. 2015-CR- 2030


Judge Hegedus

STATES 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 Buckeyes 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.

54

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 Faires 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 cofounding a high school club for such activities.
During this years 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 archers tunic, a
metal breastplate, leather greaves to cover his/her shins, and special archers 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 Bryants actions. On
the way to the Faire, AJ Bryant and Sam Jones stopped at Swifties, a local convenience store, to
buy replacement shoelaces for Bryants 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.

55

Bryant and Jones began to argue in the Swifties parking lot after leaving the store. Jones
was upset at Bryants 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 Joness 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 Defendants 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 Bryants 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 Defendants

56

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
seriouslys/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 Defendants 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 officers actions are
objectively reasonable in light of the totality of the circumstances. Graham v. Connor, 490

57

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 officers 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 Defendants 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 childs 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

58

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 Bryants 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
Defendants 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.
Defendants 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.

59

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 Bryants 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.

60

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 Defendants 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
61

1.
1
2

Prosecution Witnesses
AJ BRYANT (Alleged Victim)
My name is AJ Bryant and I am a medieval enthusiast. I know, its kind of a

nerdy hobby, but Ive always found that period of history fascinating. Who

wouldnt want to live in a world with knights and archers? Unfortunately, my

enthusiasm for all things medieval almost got me killed at the hands of Officer

Green.

I first started working at the Buckeye Medieval Faire more than a year ago,

in the summer of 2014. I had gone to the local library to check out a stack of

books on medieval times. Although I had already read most of the books (several

10

times, in fact), I thought it would be fun to spend my summer vacation re-reading

11

them. And as I walked out the front door of the library, I noticed a sign advertising

12

summer work at the Buckeye Medieval Faire. They were hiring for all kinds of

13

positions, and no experience was required. I couldnt believe my luck. I was

14

already planning on getting a summer job, and of course I loved going to the Faire

15

as a kid, so I thought this would be a perfect place to start!

16

I filled out an application and had an interview with the hiring manager.

17

After considering me for several positions, they eventually hired me to cook and

18

serve giant turkey legs. Even better, I got to wear an authentic medieval costume

19

and get paid to do it! I was so excited about working at the faire that I reread all of

20

the medieval books in the next two days. I also attended a two-day training course
62

21

on speaking like a medieval person. We learned some basic rules like saying yea

22

and nay (instead of yes and no); how to greet people (greetings, good

23

gentles/ladies); using words like verily (truly), hither (here), and perchance

24

(perhaps) whenever possible; and most importantly, to refer to food as

25

bellytimber (food). They also taught us that two or three words were preferable

26

over one word. So, instead of saying yes, we were taught to say yea, methinks

27

so. My manager also encouraged me to shout when I spoke, because it sounded

28

more medieval to do so.

29

Last year, I served the best bellytimbers in the festivalthe giant turkey

30

legsspoke in authentic medieval language, and dressed as a medieval merchant.

31

I also witnessed daily archery contests, jousts, and mud wrestling. I had such a

32

blast that I lived in character even when I went home and hung out with my

33

friends. They had fun speaking in character, even though they werent working at

34

the festival. My friend Sam said that he/she wanted to attend the faire next

35

summer, too.

36

The main event of the faire was the annual costume contest, which was held

37

on the first day. People came from all over Buckeye to win the honor of the best

38

in show costume. They had winners in several categories, including best knight,

39

best royal wear, and best jester (usually awarded to the worst-looking costume). I

40

had no idea how competitive the contest was until I saw that there were three times
63

41

as many entrants into the archery costume contest as compared to the other

42

costume contests at the Faire. Last year, the winner of the costume contest was a

43

guy from northern Buckeye who had spent the last several years rounding up an

44

authentic wizard costume. After witnessing the costume contest, I knew that I

45

wanted to be a part of it the next year.

46

The Faire was open the last two weekends of July, and soon after it was time

47

to go back to school. I was sad that I wouldnt be able to take part in the medieval

48

festivities for another year. All year, I thought Id wanted to be a knight, and

49

started thinking up my costume. But over winter break I read the Starvation Sports

50

Trilogy, and I knew being an archer would be SO COOL. The nice thing, though,

51

was that I had earned enough money that summer to buy an authentic archers

52

costume, which I purchased over the next few months. I call it authentic because

53

it was just like what all the books said a medieval archer would have worn. And

54

having witnessed daily medieval archery contests, I knew that my costume was the

55

choice wear of the best archers.

56

My costume consisted of a paladins helm (a fancy name for a helmet), a

57

chainmail coif covering my neck and head (but not covering the face), an archers

58

tunic, an ergonomic breast plate (to allow for range of motion while shooting a

59

bow and arrow), leather greaves to cover my shins (with an intricate lacing

60

system), and special footwear. The paladins helm was so hard to find, I had to
64

61

order it on the internet, and I guess I got the wrong size, because it slides around on

62

my head a lot, but still looks pretty great! I guess I couldve budgeted better,

63

because with the cost of all the rest of the costume, I didnt have much left over for

64

the most important part, the bow and arrows! Luckily, my sister babysits for a girl

65

who got a new toy Smoosh brand bow and arrow that looked surprisingly

66

realistic. I hoped that the rest of my costume would be so convincing, that no one

67

would notice I had a toy bow and arrow!

68

Because my costume takes about twenty minutes to put on, I dressed at

69

home and drove to the festival in full garb. Well, I didnt wear the helmet or

70

quiver while driving, but I wore everything else. I didnt want to risk having it

71

accidentally block my vision while driving. And the quiver was pretty

72

uncomfortable to hang on my back while seated in a car. Nevertheless, I looked

73

exactly like a medieval archer as I drove. Sure, I got a few stares while driving,

74

but I also got a lot of smiles and thumbs-ups along the way. I think most people

75

were pretty impressed with my costume, even if they didnt know why I was so

76

dressed up.

77

Not a lot of students from my high school are interested in the Medieval

78

Faire, unfortunately. Last year I made some friends at the festival, but not very

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many of them were my own age. My friend Sam started asking me about

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LARPing (Live Action Role Playing, for the uninitiated) and the Medieval Faire
65

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originally when we were in chemistry class together. I told him/her to join the

82

LARPing team, and after Sam didnt make the Quidditch team, he/she finally

83

decided to take me up on it. S/hed never really talked to me before this year, but I

84

was glad to have someone at my school be interested in the Faire, too. When I first

85

invited Sam to the faire, he/she said he/she couldnt really afford to dress up, but

86

was interested in seeing everyone else in their costumes. Sam lives close to the

87

fairgrounds, so he/she told me it would be a good idea to park at his/her house and

88

walk over to the Faire so we wouldnt have to pay for parking. When I arrived at

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Sams street, I parked and went looking for his/her house.

90

As I walked, I encountered some random people walking on the street. They

91

were dressed in ordinary clothes and didnt appear to be going to the Faire.

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Thinking it would be funny, I began to shout in character and pretend they were

93

about to invade my castle. I walked over to one of the men walking, pulled out an

94

arrow, and very lightly shot him in the chest. As designed, the arrow harmlessly

95

bounced off his chest and fell to the ground. He thought it was pretty funny and

96

handed me back my arrow. He asked why I was dressed like an archer, and I told

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him about the costume contest.

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99
100

He then asked why my shin thingy was falling off. With great horror, I
looked down and noticed that my left leather greave had nearly fallen off!
Embarrassed, I attempted to quickly tighten the lace, but managed only to break
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the lace. Great, just what I needed! I was about an hour from winning the archers

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costume contest and I needed to fix my costume just to get there!

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When I found Sams house, he/she told me there was a Swifties convenience

104

store on the way to the fairgrounds. Sam wasnt sure if they would have shoelaces,

105

but we could try to find something that might work. I walked into the store

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wearing my paladins helm and carrying my bow and arrow. There were a few

107

other customers in the store, and I began to talk in character about plundering the

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store. Some of the customers seemed confused, but for the most part they thought

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it was pretty funny, especially when they saw that they were toy arrows. I walked

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up and down the aisles until I found the shoelaces. Seeing the pair I wanted, I

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placed an arrow on my bow and took aim. Unfortunately, just as I was releasing

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the arrow, my helmet shifted and temporarily blocked my vision, causing my

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arrow to miss the shoelaces. The arrow traveled quite a distance and struck a

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middle-aged woman in the back of the head. To make matters worse, she turned

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around and started screaming at me. She knocked her shopping basket into one of

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the shelves and knocked several jars of red sauce onto the floor.

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The customer was cursing at me, and I got a little heated and yelled back at

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her not breaking character, of course. From the front of the store, I heard the

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store owner yell that he/she was going to call the police, but I didnt really

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understand why. Sam came running towards me and told me we needed to go. I
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saw that the customer was pretty upset and was picking up a jar. I didnt know if

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she wanted to throw it at me or if she was just cleaning up the mess shed made.

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Remembering the age-old wisdom that its better to live to fight another day, I

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retreated to the safety of my landwhich meant I had to flee the store. As I ran

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out of the store with the shoelaces, I tossed two dollars on the ground near the

126

stores entrancemore than enough to pay for the shoelaces. The bottom line is

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that I didnt want to stick around in the store any longer than necessary. It was

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hostile territory.

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Once we were outside, I saw a group of four people walking down the street.

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I began to shout at them in character and told them to leave my land, saying that I

131

would defend it with honor should they choose to enter onto it. The group played

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along at first, challenging me to a duel, and saying they would get their swords

133

(which would never work for that period of history!) While I was still playing with

134

this group, I noticed that Sam was furious. S/he told me that I needed to quit

135

goofing off. Sam had gotten very angry. Sam was screaming at me, saying

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he/she didnt know what happened inside the store, but I didnt need to be so

137

stupid. I told Sam that he/she was over-reacting, and showed him/her how the bow

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and arrow worked, and how easy it was to miss your target. I loaded an arrow, and

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as I did I heard someone shouting. I couldnt tell where the voice was coming

140

from, so I turn to look and see who it was.


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As I did so, my helmet shifted and obscured my vision. I dont remember

142

exactly what happened at that moment, but Im pretty sure I brought my bow

143

down. The last thing I needed was more trouble. Regardless, less than a second

144

after hearing the screams and shouting, I heard a loud bang and felt an immense

145

pain in my shoulder. Although I dont remember much else from that moment on,

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I was apparently shot twice in the shoulder by an overzealous police officer. One

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of the bullets struck a nerve, causing my legs to collapse beneath me. I was

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knocked unconscious by the pain moments later.

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Not only was my breastplate ruined (apparently it wasnt bulletproof), the

150

paramedics had to cut off my remaining costume to perform medical treatment.

151

My amazing archers costume was thus destroyed. Luckily, the bullets missed my

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heart by inches. I had to have extensive surgery, and remained in the hospital for

153

three weeks. Its now three months after the incident, and the feeling has mostly

154

returned to my legs. The doctors think I have a good chance of making a full

155

recovery, but only time will tell.

156

Although my memory is a little fuzzy, Im pretty sure the police officer

157

didnt turn on their lights or siren. I dont even remember seeing a police car! I

158

certainly dont remember hearing or seeing them. Had Officer Green taken just a

159

moment to look at the bow, he/she would have seen that it was a toy and realized

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that it couldnt hurt a flea. And had Officer Green seen any of the thousands of
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flyers around town (or read the front page of the newspaper that day), he/she would

162

have noticed that the main event at the Faire (i.e., the costume contest) was taking

163

place that afternoon. I mean, arent officers supposed to know about this sort of

164

thing? Instead, he/she chose to shoot first and ask questions later, almost killing

165

me in the process and ensuring that I wouldnt win the costume contest that year.

166

Hopefully, I will be healthy enough to enter the contest next year. I hope Officer

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Green gets the book thrown at him/her!

70

2. SAM JONES (fact witness and AJ Bryants companion)


1

AJ and I were supposed to go to the first day of the Medieval Faire, but we

never made it there. Before we arrived at the Faire, AJ was shot by Officer Green.

It was supposed to be my first time going and I was extremely excited. I read all of

the Game of Throne novels to prepare and joined the schools LARPing club.

LARPing is live-action role-playing. AJ actually introduced me to the sport after I

didnt make the Quidditch team. I didnt have a costume or anything but AJ had

been before. AJ decided to go as an archer this year; and had a really nice

costume, with a working bow and arrow. The arrows had a little foam tip, carved

out to look like an arrow, so they would bounce off of anything you shot them at,

10
11

but it could go pretty far, and the bow and arrow looked pretty real for a toy.
AJ really takes this medieval stuff seriously, and he/she was determined to

12

win the costume contest this year. AJ was the former president of the Quidditch

13

team but discovered that LARPing was his/her true passion. He/she started the

14

LARPing club this past school year and recruited former wizards to join him/her.

15

Every year at the Medieval Faire, there is a costume contest during the evening on

16

the first night of the festival. Last year, AJ thought he/she would win. He/She

17

dressed up as a wizard and kept walking around with a wand trying to cast spells

18

on people. Even though the costume was really good, AJ didnt win, so he/she was

19

even more determined to have a great costume and be in character.


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20

AJ and I have become pretty good friends in the last school year. I attend a

21

pretty great school, and I guess it never really occurred to me how many cool clubs

22

and activities there were to choose from. My first few years of high school, I

23

mostly kept to myself and hung out with the kids from my neighborhood. They

24

were all people Id grown up with, but once we all got to high school, things

25

changed. They were stealing a lot, a couple of them got into gangs, and some of

26

them are in juvenile detention now. One night, I was with some friends who were

27

shoplifting at the local Swifties convenience store, and an officer picked me up

28

with my friends and I spent an evening in a holding cell. I wasnt charged with

29

anything, but it sort of changed things for me. I never wanted to be in that

30

situation again. AJ and I are very different, but he/shes a nice kid, and I know

31

he/she stays out of trouble. My family is glad Im hanging out with some different

32

people, but they dont really get the whole LARPing thing so when AJ invited

33

me to tag along for the Medieval Faire this year, I wanted to go, but knew there

34

was no way I was going to be able to put together a costume in time. I live near

35

the fairgrounds, so I told AJ we could park by my house and walk over together.

36

The charge for parking is such a rip-off.

37

When AJ pulled up, he/she parked down the street, and I thought he/she

38

might be lost, so I went out to meet him/her. AJ was playing around with some

39

people on the street. They looked to be having a lot of fun. AJ told me that there
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40

was something wrong with his/her costume, and that he/she was worried he/she

41

was going to have to stop at home. I told AJ there was a convenience store just

42

down the street, and maybe we could find something over there. I didnt want to

43

risk them being late for the costume contest, and the store was on the way. Theres

44

only one convenience store in the area, so even though I was worried the owner

45

would recognize me from my arrest, I knew there werent many other options. As

46

we walked, people on the street and people driving by were looking at us because

47

AJ was all dressed up. I was trying to talk in an accent but my English accent or

48

whatever wasnt very good. I clearly did not practice as much as AJ. AJ kept

49

saying things like En garde! and Bow before knighthood, you peasants to

50

people walking by. It was pretty funny, and people thought so too. One guy and

51

his kid who were walking by stopped to look at the costume, and AJ let the kid

52

play with the bow, since it was harmless. AJ invited the boy to come to the next

53

LARPing club meeting and he/she gave the family his/her contact information. I

54

got pretty into this; I dont have any brothers or sisters, so it was nice to be able to

55

play around a bit and be silly.

56

Once I walked into the store, I recognized the store owner right away; I

57

thought theyd hired a new clerk, but that same grouchy owner was there. I told

58

myself that since wed only be there a minute, Id just get what I was looking for

59

and get out of there before the owner recognized me. I decided to look for
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something to drink that we could use to be in character at the Medieval Faire. I

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was looking for a juice that might look like mead if we put in a plastic cup, when I

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heard some lady scream. She was yelling at someone. When I heard glass break, I

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hoped to myself that AJ had nothing to do with it, but next I heard AJ scream back

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at the customer in his Medieval speak. I know AJ is my friend, but I was

65

embarrassed; its one thing to play around, but youve got to know when to stop.

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Next thing I knew the store owner is screaming hes going to call the cops. I knew

67

better than to get mixed up in something so I ran to find AJ and tell him/her we

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need to get out of there. The customer was still screaming at AJ, but he/she

69

wouldnt stop! AJ screamed at her My bow is the fiercest in the land, and if I had

70

intended to hit you, mlady, I would have hit the target for sure! This only

71

infuriated the customer more, and she yelled some things at AJ that I dont care to

72

repeat. I hadnt seen the store owner come back to investigate, and I was

73

concerned that was because he/she was on the phone with the police. The

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customer started to pick up another jar, and AJ was jokingly darting back and forth

75

around the customer, like AJ was trying to bait her into throwing it at him/her. I

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told AJ he/she needed to stop playing, and we had to get out of there, NOW. AJ

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looked confused, and I was worried Id have to drag him/her out of there. I didnt

78

want to run, because it would make us look guilty when we arent, so I tried to stay

79

calm and leave the store empty-handed. I didnt realize that AJ had thrown some
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money for shoelaces; I just thought he/she was stalling again, so I ran out without

81

him/her. As we left, I saw the customer still muttering under her breath and visibly

82

angry. I waited for AJ to get outside and then pulled AJ toward the side of the

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store to avoid her. Next thing I knew AJ was playing around with some other

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people on the street. Thankfully, these guys were amused by AJ and going along

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with it, but I didnt want to draw attention from the angry customer again.

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Knowing what happened, I feel bad about this now. I really do. AJ is my

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friend, and I feel terrible about what happened to him/her. But he/she made me

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upset. This was my neighborhood, and AJ just didnt get it. Maybe he/she could

89

play around like that where he/shes from, but he could get us in serious trouble

90

here. Ive seen so many friends make mistakes around here, and Ive managed to

91

stay out of trouble. I started screaming at AJ, who just got this dopey look on

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his/her face and started to explain what happened in the store. Really, it didnt

93

make any difference at that point and I just wanted to get out of there. And I

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figured AJ had gotten the point, because they looked like a wounded puppy at that

95

point! But much to my horror, he/she insisted on showing me how bad the aim is

96

on the bow and arrow by notching an arrow. I was waving my arms at him/her to

97

stop, and I saw that people were starting to stare. I begged him/her to put the bow

98

and arrow down, and AJ just got more upset that I was mad. The next thing I knew

99

there was a loud popping and AJ was on the ground.


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The rest of what happened was a blur. I had heard about my fair share of

101

shootings in the area, but Id never seen it in person. I didnt even know where it

102

came from until after the fact. I didnt see an officer on the scene until AJ had

103

been shot, and if he/she did give a warning, I sure didnt hear it. A man came to

104

ask me questions and get me away from AJ, but I guess I was shocked or

105

something.

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After this incident, AJ was hospitalized. I wasnt allowed to ride in the

107

ambulance, but I was able to visit the following day. When I heard that an officer

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shot AJ, I couldnt believe it. I mean, I wish AJ hadnt been such a pain in the

109

store, but he/she was harmless. He/she was holding a Smoosh toy, in bright

110

colors! If the officer wouldve just taken his/her time, he/she wouldve seen AJ

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wouldnt harm a fly. We didnt even know there was a police officer there, and

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trust me, I was looking for them! Ive been visiting AJ as much as I can, and Ive

113

been sneaking in Magic! The Gathering cards so he/she can teach me how to play.

114

Hopefully we can try to make it out to the Faire next year, and Ill pay for the

115

parking next time.

76

3. JUSTICE SMITH (Retired Police Officer Who Witnessed the Incident)


1

My name is Officer Justice Smith, and I have lived in Buckeye my entire

life. I graduated from Trillium High School in 1992 and even before I graduated, I

knew I wanted to be a police officer, and have been involved with law enforcement

in some capacity my entire career. I graduated from the State of Harmony Police

Academy in 1994. My training at the State of Harmony Police Academy included

1000 hours of comprehensive instruction including courses focused on effective

control techniques, recognized action response continuum models for use of force,

patrol operations, law and legal procedures, criminal investigations, and firearms.

After graduation from the Academy, I was hired by the Cardinal Police

10

Department in 1994 as a uniform patrol officer. Uniform patrol officers are the

11

first responders to a call from the public for police services. Uniforms, as they

12

are called, generally are assigned to a specific area of the community. Uniforms

13

provide routine patrol, conduct premise inspections, apprehend and arrest law

14

violators and enforce laws and ordinances.

15

In 1999, I was promoted to Sergeant. As a sergeant, I supervised an entire

16

shift of Uniforms and, among other duties, organized daily assignments prepared

17

and presented roll call, reviewed and approved reports and assisted with difficult

18

investigations. I also led trainings on a wide variety of police policies and

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19

procedures, including appropriate application of the action response continuum

20

policy.

21

In 2003, a Lieutenant position became open at the Carnation Hills Police

22

Department. I saw this as a great opportunity to advance my career and move

23

closer to my hometown of Buckeye. I retired from the Carnation Hills Police

24

Department in 2014.

25

As a Lieutenant, I was responsible for ensuring that all subordinate officers

26

in the Carnation Hills Police Department followed all statutes, regulations, and

27

department policies. In this position, I routinely drafted and revised department

28

policies to comply with state and federal law and recommendations from national

29

law enforcement organizations. I also served as the primary liaison to the Chief of

30

Police and often was asked to participate in community education events and

31

programs. I also obtained certification as a Subject Control Instructor. I had

32

primary responsibility to plan and execute all of the Departments Continuing

33

Professional Training (CPT) programs, including educating my officers on

34

appropriate responses to a wide variety of situations faced by officers every day on

35

the job, including following the action response continuum.

36
37
38

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39
40
41
42
43
44
45
46
47
48

My primary areas of instruction have included, among others, the following topics:

*Use of Force (annual training, Instructor 2005-present)


*Response to Resistance (Certification in 1995, Instructor in 2010-present)
*Weapon Retention/Shot Avoidance (Certification in 1997, Instructor 2005-2014)
*Communications Response Tactics (Training in 1998, Instructor 2009-2011)
*Defensive Tactics Instructor Course (Instructor 2002, 2006, 2008, 2010, 2012)
*First Responder Training (Annually since 1994)
I also have been privileged to continue to lead these trainings as part of my

49

consulting work since I retired. I retired in 2014 because I maxed out my years

50

of service to draw retirement benefits from the State of Harmony. I soon realized

51

that I could not really retire and after a month of hanging around the house, I

52

knew I had to find something to keep me busy! So I started to work security for

53

local events and started a small consulting business that allows me to continue to

54

work with law enforcement departments around the state.

55

In addition to being a CPT Instructor, my consulting work requires me to

56

keep current on best practices, legal requirements, and applicable policies and

57

procedures for law enforcement. I assist local departments by reviewing and

58

revising operations and procedure manuals to ensure they comply with recognized

59

best practices and legal requirements. In fact, even before the incident we are

60

talking about, I worked with the Buckeye Police Department to review several of

61

its policies and manuals, including its Action Response Continuum (ARC). It was

62

great to see that the Buckeye Police Department Polices complied with state and
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63

national law enforcement best practices and include provisions that are in

64

compliance with the most current legal standards.

65

All law enforcement officers in Harmony receive training on how to

66

appropriately respond to situations encountered in the field. This training includes

67

the established and universally accepted ARC. The ARC teaches officers how to

68

properly evaluate a situation to determine the type and extent of response that is

69

reasonable to protect the public and themselves from harm and effectively gain

70

control. Officers are trained that the reasonableness of their response is based on

71

the amount of resistance encountered by an individual(s) and the officer is required

72

to take the amount of time necessary to appropriately evaluate the situation. The

73

officer should choose his/her response based on department policy, his/her physical

74

capabilities, perception of the situation, training, and experience.

75

For example, if the individuals actions are limited to failing to respond to

76

commands, the appropriate response by the officer may be maintaining a presence,

77

escorting the individual from the scene, or requesting assistance from other

78

officers. Use of deadly force is reasonable only in those situations where weapons

79

are being used against the officer, when an individual is attempting to disarm the

80

officer or when the officer encounters a life threating weaponless assault. The

81

officers assessment also should include an evaluation of a number of special

82

circumstances such as type and closeness of a weapon, distance from the subject,
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83

availability of other options, environmental conditions, including the actual or

84

perceived threat of harm by others in close proximity, injury or exhaustion of the

85

officer or subject, and whether the suspect is handcuffed, on the ground, or

86

otherwise incapacitated.

87

Officers in Harmony also learn how to effectively work with the

88

communities they serve as our citizens play a vital role in maintaining order and

89

good will. Proliferation of video cameras, both by the public and police

90

departments around the country also plays an important role in officer relationships

91

with the public and the communitys perception of how officers respond to

92

situations, including the nature and extent of the use of deadly force.

93

On July 25th, I was just finishing up a shift as a contract security guard for

94

the Medieval Faire. Most of the attendees at these festivals are well behaved and

95

historically we have had few arrests for minor misdemeanors. Over the years we

96

have found that having a commanding presence can make people feel at ease, or

97

using authoritative body positioning and verbal cues can quickly diffuse a

98

situation. In cases where the resistance is more significant, such as striking,

99

kicking, or pushing the officer, it has been necessary to use greater force to

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101
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respond, including using mace, Taser or baton techniques.


After finishing at the Faire, I was starving. A giant turkey leg didnt exactly
sound appetizing, and most of that food gives me heartburn, so I stopped at
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Swifties, the convenience store across from the fairgrounds. When I got out of my

104

car, I saw two kids standing in the parking lot arguing with each other. They were

105

approximately 20 feet from the entrance, and were facing each other. One was

106

wearing a costume and holding a plastic bow and arrow, and the other was dressed

107

in plain clothes.

108

I figured the kid in the archer costume was on the way to the Faire for the

109

costume contest, but I didnt know what was going on. Even though I was off the

110

clock, I still felt I had a duty to ensure this didnt get ugly. Before approaching the

111

kids, I decided to ask some bystanders in the parking lot to get a sense of what was

112

happening. The argument hadnt yet become physical, but I kept one eye on them.

113

I asked how long the argument had been going on, and one bystander said they

114

werent sure if they were even arguing, and that they had been playing around. No

115

one in the area seemed to be panicked or concerned. After a few minutes I saw

116

another officer arrive on a motorcycle. The motorcycles lights were flashing and

117

the officer quickly dismounted and immediately took shelter behind the bike. I

118

estimate that when he/she arrived on the scene, he/she took position approximately

119

20-25 feet from the two individuals who were arguing.

120

The two teens, continued to scream at each other. At this point the kid in

121

the archer costume drew back the string of the bow, and gestured to the other teen

122

in plain clothes. I heard the officer yell out to the teens, but could not hear what he
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123

was saying from where I was standing. The archer turned to face the officer,

124

without releasing the tension on the bowstring. The officer responded by firing

125

two successive shots at the archer, at which point the archer dropped the bow and

126

slumped to the ground. I estimate that approximately 30 seconds passed between

127

the time the officer arrived on the scene and the time he/she discharged his/her

128

weapon.

129

With the archer now on the ground, the officer moved forward with his/her

130

service weapon drawn, and kicked the bow away. The officer surveyed the scene,

131

and then lowered his/her weapon and checked the archers vitals.

132

At that point I identified myself as a retired law enforcement officer of the

133

Carnation Hill Police Department, and offered my help in providing emergency

134

medical assistance. I initially did not recognize the officer, as he/she was wearing

135

a motorcycle helmet and sunglasses when he/she arrived on the scene; but as I

136

approached the officer, I recognized that it was Officer Riley Green. I previously

137

met Officer Green when s/he attended a couple of CPT programs I led for Buckeye

138

Police Department. Officer Green appeared visibly shaken by the incident, but

139

only nodded to me when I offered assistance. Given the CPT trainings s/he

140

attended, I think Officer Green is relatively new to the Buckeye Police

141

Department, so I dont know if he/she recognized me.

83

142

As a trained first responder, I approached the archer and saw that there was

143

heavy bleeding in both the anterior and posterior of the right shoulder, indicating

144

that at least one of the bullets had entered and passed completely through the

145

shoulder. I immediately completed an initial assessment of his/her medical

146

condition and applied pressure at the wound sites. I determined that the archer was

147

still breathing, but was unconscious. Emergency medical services are typically

148

posted at large gatherings like the Medieval Faire, so the ambulance arrived within

149

several minutes. When the paramedics arrived, I stepped back and permitted them

150

to take over. A squad car from the Buckeye Police Department arrived at the scene

151

within a couple of minutes after Officer Green discharged his weapon. I remained

152

at the scene, anticipating I would need to provide a statement.

153

Approximately 30 minutes after the incident, I was interviewed by two

154

detectives from the Internal Affairs Division. The detectives asked me to provide a

155

timeline of events including a detailed description of the scene as I observed it.

156

Although it was very difficult for me to criticize the actions of a fellow

157

officer, I took an Oath of Honor when I took this job and knew that had to come

158

first. In my opinion, Officer Greens use of force in this instance was not

159

reasonable and did not comply with Buckeye Police Department Policy or the

160

training that all Officers in the state of Harmony receive. To come to this

161

conclusion, I have relied on my training and experience to interpret both what I


84

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saw first-hand as an eyewitness, and the report of the Internal Affairs Division

163

dated July 30, 2015.

164

First, law enforcement officers are trained to recognize a wide variety of

165

weapons, including bows and arrows. Although the bow and arrow looked

166

somewhat realistic, even to someone who is not trained, it wouldnt take the

167

average person long to figure out that the weapon was just a toy. Anyone

168

looking at that weapon for 15 seconds could see it was made of plastic and the

169

arrows had foam tips in the shape of an arrowhead. Officer Green was close

170

enough that he should have almost immediately realized that both were toys and

171

thus did not pose an immediate threat of serious bodily injury.

172

Officer Green also failed to adequately evaluate the environmental

173

conditions at the scene. Officer Green fired his weapon before s/he had time to

174

adequately determine if there was any risk of harm, let alone a risk of serious

175

physical harm to him/herself or others. Officer Green was on the scene less than

176

30 seconds before s/he used discharged his weapon and shot an individual s/he

177

assumed was a suspect. 30 seconds is simply too short of a period of time to

178

perform an adequate evaluation of the situation.

179

Additionally, although Officer Green was responding to a potential armed

180

robbery, when s/he arrived at Swifties, the scene was not consistent with a

181

situation that posed risk of serious bodily harm that would justify the use of deadly
85

182

force. The individual with whom the archer was arguing did not appear to be

183

concerned for his/her safety or appear to be threatened by the bow and arrow. The

184

small group of bystanders was not behaving in a manner to suggest that they felt

185

they were in danger of serious physical harm. In fact, I observed that a couple of

186

people appeared to be joking around with each other and were comfortable

187

watching the argument between the two individuals. None of the bystanders tried

188

to wave Officer Green down, seek cover behind cars parked nearby or were seen

189

running from the scene.

190

Officer Green also made no attempt to de-escalate the situation before using

191

deadly force and there were a number of responses that would have been

192

appropriate. I reviewed the City of Buckeye dispatch log and confirmed that

193

Officer Green was advised at the time he received the initial call that back up

194

officers were being dispatched to the scene. It certainly would have been

195

reasonable for Officer Green to maintain his position and wait for assistance from

196

other officers. Officer Green could have also continued his verbal and/or physical

197

commands to the individuals to drop the weapon and disperse from the area.

198

As a police officer and instructor with more than 25 years of service and

199

based upon my observations at the scene, it is my opinion that Officer Green did

200

not have a lawful basis for shooting on the day in question. I can certainly feel for

201

Officer Green, knowing that our job isnt easy and we have to make tough calls
86

202

every day, and at times have to make split decisions. However, sometimes an

203

additional 15 seconds to a minute can make the difference between saving a life or

204

losing one. That is why I think regular and repeated training is critical to our

205

success as officers.

87

Defense Witnesses
1.

RILEY GREEN (Defendant officer)

My name is Riley Green and I am 28 years old. I have been a police officer

for the last 8 years. My spouse and I moved to Buckeye with our two girls, ages 5

and 3, about 8 months ago. We own a house and live just outside the town limits

of Buckeye.

I am a patrol officer but am proficient in all the skills that should have gotten

me promoted to sergeant two years ago in my previous department. Ive already

applied for sergeant in Buckeye too. I am consistently the best marksman in trials

and score tops in field tests. My strength and agility tests are number one for the

whole force. I havent been here long, but I want Buckeye to be a safe place for

10
11

my daughters.
Ive heard it said (although never to my face, of course) that I dont always

12

have the best bedside manner. The other officers dont always respect the way I

13

handle tense situations. My theory, and it has always worked for me, is that you

14

see a tense situation and you defuse it as fast as you can. Delaying action

15

unnecessarily just results in injuries of others, or even officers. You dont waste

16

your time holding hands and trying to figure out what childhood trauma caused this

17

puke to rob a store and hold the clerk hostage. When a problem arises, you have to

18

handle it. Everybody had a difficult childhood and relatively few people feel a

19

need to break the law. I was hired to protect the law abiding citizens of Buckeye
88

20

and I do that 100% every day Im in uniform and on the street. You may not like

21

the method but you cant argue with the results.

22

Were placed in some situations where youve got to make split-second

23

decisions, and its easy for people to talk about what could have been done in

24

hindsight, but Im the kind of person who knows how to make the tough choices.

25

And you dont get the benefit of ten minutes to sit and mull it over while a guy is

26

pointing a gun at a hostage. In my old precinct, thats just how we did things, and I

27

just dont understand some of these officers in Buckeye.

28

My spouse, the girls and I had just returned from vacation the day of the

29

alleged incident. We always go down to McDougals cave and take the kids

30

hiking. Its my favorite time of the year; we go for at least a week. The last few

31

years its been harder to get the time off, especially around the 4th of July, but if

32

you go any later in the year, it gets so hot out! This year, it rained the first three

33

days. The last few were beautiful, and I didnt want to go back to Buckeye! I was

34

scheduled for a shift the day we drove back, and we packed the girls up in a hurry.

35

When we got home, one of the girls couldnt find the turtle she smuggled home

36

(even after I told her to leave it at the camp) so we had to take the whole car and all

37

the luggage apart looking for it. I did not want that thing to die in the car or a

38

suitcase and stink up and ruin whatever it was in. I tried to call in, but they told me

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39

we were short-staffed, so I had to come in. Obviously, this put me behind schedule

40

and I was late getting in to work.

41

Before starting a patrol, we are supposed to read all the announcements on

42

the board or get them in roll out, but I was too late my first day back to do either.

43

Besides, I already knew the only real news was that Morris was retiring on Friday;

44

the party was at The Pub and we all needed to kick in $20. Not much more

45

important is said or written before a shift starts. That notice had been the only

46

thing on the bulletin board for weeks, and Id already paid my $20 to the captain.

47

I was working a one man motorcycle patrol that night. Im still not used to

48

the one-man patrol, especially given the amount of calls I get. Im not in the

49

easiest area, but we dont have the staff to work in partners. My first few hours on

50

shift I had a few easy calls (some simple domestic assaults, a noise disturbance

51

here or there, etc.), A few hours into my shift; I get a reported robbery at the

52

convenience store Swifties. I couldnt believe it, but the report was that the perp

53

was wearing some sort of disguise, and attempting to rob the store with a bow and

54

arrow.

55

Id been out to that store I dont know how many times, so I knew this

56

wasnt going to be a good night. The store owner has had some rough breaks with

57

that store, and I try my best to look out for them. For a lot of the people in that

58

neighborhood, Swifties is the only place nearby to get groceries. Too much crime
90

59

and the owner may eventually call it quits and close the store. Id seen it happen

60

countless times in my old precinct where grocery stores in bad neighborhoods

61

close because of theft, and the convenience stores become the last holdout for the

62

locals to buy any food without driving or taking a bus. If they close, what happens

63

then?

64

I got there about two minutes after the dispatch and saw two kids in the

65

middle of a heated argument. One of the kids in the argument matched the

66

description given by dispatch, so I knew it was my suspect. A bunch of other

67

people were standing off to the side looking completely confused. One of the kids

68

was screaming, and the medieval kid was flexing the bow and arrow, aiming at the

69

second kid involved in the argument! I got about 20-30 feet away from the

70

suspect, dismounted the motorcycle and positioned myself behind it as a shield,

71

and then yelled for the suspect to put down the weapon. If anything, they just

72

seemed to get into it even more with each other.

73

I gave multiple clear warnings, and rather than put the bow down, the

74

suspect actually turned towards me! At this point the suspect was aiming the bow

75

and arrow at me, leaving me no clear alternative. I fired two shots at the suspects

76

right shoulder. The suspect lowered the bow, and went down. Afterwards, I

77

secured the scene with another officer who had arrived just after I did.

91

78

It wasnt until later that I find out about this fair thing and that apparently

79

people in Buckeye dress up like folks whove been dead a long time and walk

80

around for three days like weirdos. I dont care who you are, or what time period

81

youre living in, you dont walk around with a weapon like that. Not in that area

82

especially. I dont think the fair thing matters at all the perp had a weapon and

83

was preparing to fire it at people! He/She had already fired at least one arrow in

84

the store and refused to put the weapon down when lawfully ordered to by a law

85

enforcement officer.

86

I did everything the way that I was supposed to according to our policies. I

87

took as much time to observe as I felt that I could, and once the kid was ready to

88

shoot the bow and arrow at someone, I had no choice but to do what I did. I mean,

89

what did the kid expect was going to happen?! Im sure this kid was nice and all,

90

but how was I to know he/she wasnt like some of those other scumbags Ive seen

91

on the beat since I started? And this archer wasnt just putting him/herself at risk

92

either. Maybe I had my motorcycle to shield me, but I couldnt live with myself if

93

that other teen was injured on my watch as well. Its never glamorous, but I did

94

what I had to do to protect the public and I would do it that way again.

95

I didnt like having to shoot the kid, I really didnt. Another officer was on

96

the scene, and helped get the kid to a hospital. I guess I was in shock a little bit. I

97

mean, Im just like anyone else, I just want a job that can send me home to my
92

98

family and kids at the end of the day, you know? I dont like having to put my life

99

on the line as much as the next person, and I certainly wouldnt be able to live with

100

myself if someone else had been harmed on my watch. Some fellow officers are

101

still giving me grief about the incident; and a few have said they refuse to work

102

with me in the future. They told me it wasnt a real bow and arrow, but how I was

103

I supposed to know that? And what if it had been? Some of the older officers tell

104

me that the department deals peacefully with the fair participants every year just

105

fine, and that everyone knew it was fair weekend and that things might get a little

106

kooky. Whatever. It didnt look that way to me, and Im the one who had to deal

107

with the situation in the heat of the moment. I guess theres a bleeding heart in

108

every department. She was probably a fair weirdo herself growing up and

109

probably thought I should just ask the perp politely not to kill someone. Im sure

110

any self-respecting cop in my situation would have done the same thing I did.

111

I mean, I have to be honest, if I had it all to do over again, I cant imagine

112

another scenario. Our policy states that we should always try a verbal warning,

113

which I did; I flashed my lights, used a siren, and then told the kid to drop the

114

weapon. It also states that if you feel like you are in danger, you should call for

115

back-up, which I did, but I had no way of knowing who would be coming and

116

when. A lot can happen in a short amount of time. And after all that, the kid drew

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117

their weapon on a civilian, and pointed it at me. I had no choice; I followed the

118

policies to the best of my ability.

119

I got some looks around the station for a while after the incident, and got

120

passed up for sergeant again, even though I kicked butt on the exam. Id like to see

121

how someone else wouldve handled being in my shoes. I came to Buckeye to

122

make a name for myself, and instead I feel like Im taking a step back! Next year,

123

Ill just take a longer vacation and avoid all those nerds altogether!

94

2.

CHRIS ABBOTT (fact witness who reported incident to police)


My name is Chris Abbott, and Im a local store owner in Buckeye. I grew

1
2

up in Valley Heights, by the fairgrounds, was born and raised around this

neighborhood. I opened up the Swifties convenience store twenty years ago, and

things looked a lot different back then. When I was growing up my dad saved up

for a store of his own, but it never happened for him. I always told myself Id own

my own business, and Id stay in the neighborhood. Famous last words. Ive tried

my best to keep this place safe for my customers, but its been an uphill battle.

Things are just different now; its a different time than when I first opened my

store.

10

This used to be a blue collar neighborhood, and wed get people stopping in

11

for milk on their way home or something. Mostly adults would come in. Now, we

12

have quite a lot of crime; fighting in the parking lot, stealing. The sad part is its

13

usually the young people who do it. I mean, I get it; a lot of these kids grow up too

14

fast; theyre not all bad. But Ill tell you, the ones who are can make this job

15

nearly impossible. Ive been robbed more times than I can count. And Im not

16

even talking about the shoplifters, although they can rob you blind; Im talking

17

about assault, armed robbery, Ive seen it all!

18
19

When I was younger, I kept a gun in the store, because I thought I could
fight back against anything that happened to me. Im too old for that now. A few

95

20

years ago I had to build a cage around my stand. Id had a gun pulled on me more

21

than a few times and it just wasnt worth the risk anymore. I have kids, and even a

22

grandkid on the way. So now, when my safety is on the line, I dont even hesitate

23

anymore, I call in the cops. Thats what theyre there for. None of the officers

24

have ever given me a hard time for any false alarms, its always better safe than

25

sorry. I cant always see so well from my cage, but frankly I dont need to. If you

26

want to come into my store and make bad life decisions, Im not gonna stop ya, but

27

I am gonna call in the cops right away.

28

Ive thought about closing the store a number of times. Ive seen so many

29

stores come and go around here, and this is one of the only places in the

30

neighborhood to get groceries. I just want to give people a place to get their

31

groceries and be on their way, but its been a huge headache the last few years.

32

It makes me sad, whats been happening in this neighborhood, but I keep at

33

it for my family. Id love to be able to hand the family business off to my kids, but

34

sometimes Im not sure that one of them wants it. My youngest son is in college

35

right now, says he doesnt want to come back. I left this neighborhood once, to go

36

to school. Im a civil engineer and a proud graduate of Buckeye Polytechnic

37

Institute. For a while I worked at Bucki Engineers and Associates (Bucki). It was

38

a big break for me when I was hired. Just before being hired, Bucki landed a big

39

construction contract and needed civil engineers to work on the project. Because
96

40

of the uncertainty in the economy, I was hired as a part-time engineer to work on

41

the project and was later offered a permanent, full-time position, after the project

42

leader found out about my interest and research in Roman aqueducts. Who knew

43

this knowledge would make a difference in my professional life! Eventually

44

though, I wanted to have a family, wanted to be home nights and weekends. I also

45

just wanted to be my own boss. Most importantly, I believed that I could help

46

make my neighborhood better. Local businesses were closing right and left, and I

47

thought I could help build things up again. Ambitious, I know.

48

English language arts and social studies were my weakest subjects in high

49

school. As a matter of fact, my worst grades were in English and history. In high

50

school, I much preferred the science and math classes. These classes made sense

51

to me, and they were practical. In college, I found classes in the liberal arts

52

continuum too esoteric. I do not have an eye for art--let alone an appreciation for

53

color nuances.

54

As a teenager, my siblings always joked about my clothing choices or color

55

combinations. They would say to me: Hey Chris, are you color blind? That does

56

not match! To which, I would reply: Im no great fashionista, but come on,

57

style runs through my veins. There was another time when my siblings had a

58

good laugh at my expense. It was the time when we went boating to the lake as a

59

family, and I confused the red boat we rented for a green one docked next to ours.
97

60

The funny thing was that my parents also made the same mistake. Yet, neither my

61

parents nor I have ever been tested for color blindness. We just accept that the

62

seasons color palate will not be set by the Abbotts.

63

My son, on the other hand, is all about the arts. He studies creative writing

64

at the Buckeye Institute of Art. Hes always talking me into expanding my

65

horizons. Although reading and studying Old English Beowulf or Chaucers

66

Canterbury Tales was not my thing in school, I have attended the Medieval Faire at

67

the Buckeye Expo with my family for the last 15 years. It helps him with his

68

studies, and I mean, the Faire is practically in my backyard!

69

I have seen the Medieval Faire grow and evolve to what it is today. As a

70

matter of fact, Buckeyes Medieval Faire is the best and largest period fair in the

71

Midwest. It appeals to children and adults alikejust like in medieval days, pets

72

roam free. What makes the Faire so great is an authentic festive atmosphere.

73

There are at least five different stages going on at the same time each day of the

74

Faireeach stage features a different activity such as jousting tournaments, turkey

75

leg eating contest, cooking demonstrations, archery competitions, storytelling

76

contest, local vendor selling their crafts in an open air market, arts and crafts for

77

children, and many more activities. The Faire takes place the third weekend of

78

July. Of course, the crown event of the Faire is the costume contest on Saturday

79

night, where the Lady and Lord of the Medieval Faire are selected. Although
98

80

costumes are not required, most attendees dress in character. Regardless whether

81

people admit it, we are vying for the coveted distinction of being selected Lord and

82

Lady of the Faire. Actually, some people go all out and put on the most elaborate

83

garbs youve ever seen. The crowned Lord and Lady receive free admission to the

84

Faire on Sunday, and when they are spotted by attendees, performers, or even an

85

event organizer, everyone immediately curtsies before them. The Lord and Lady

86

of the Medieval Faire garner much recognition and deference, just like royalty. Its

87

a blast!

88

To be honest, one of my favorite things about the Faire was that the

89

customers were usually the most easygoing. We got a lot of customers, and they

90

never gave me any trouble. Because Im so close to the fairgrounds, I get all kinds

91

of strange types coming into the store depending on whats going on over there. I

92

dont usually have to worry about the folks going to the Medieval Faire.

93

Unfortunately, sometimes its the regulars I have to worry about. People who

94

arent from around here worry about the crime. Ive tried a few different ways to

95

draw back the people who are going to the fairgrounds, and for the last five or six

96

years, my partner and I have been making Buckeye chocolates that we sell a few

97

times a year. People cant get enough of them! People in the neighborhood will

98

complain about the price, but people heading to the fairgrounds will make a special

99

stop just to get them. Every July, to coincide with the Medieval Faire we make a
99

100

double batch. Swifties Buckeyes rival chocolate candies sold at any of the

101

gourmet candy stores in the city. They are that good!

102

Normally, when people come into the store on their way to the Medieval

103

Faire, they travel in groups, all in costume. This kid came into the store by

104

him/herself, wearing a helmet and didnt even wave or anything. He/she went

105

directly to the back aisle like he/she was in a hurry. I saw that he/she had a bow

106

and arrow, I couldnt tell if it was grey, or some other color? He/she was moving

107

really quickly. There was a customer already in the store with a shopping cart.

108

After the archer came in, another teen walked in wearing plainclothes. I

109

recognized this kid. He/She has been in and out of my store before, he/she was

110

even picked up once, but I dont really remember the incident very well.

111

Nevertheless, I knew to keep an eye on him/her. They also rushed to another side

112

of the store, and didnt make eye contact with me. The second kid seemed to be

113

looking for the archer, but didnt go directly over to him/her. It all looked kind of

114

suspicious.

115

After a moment or two I heard the woman in the back of the store scream.

116

She says shes been shot by an arrow, it was one of the only things I could hear

117

clearly. They start arguing, but I cant hear a thing the one kid is saying because

118

he/she has that helmet on! Next thing I knew, there was glass breaking. I yelled

119

out that Im going to call the police with my phone already in my hand, and I got
100

120

no response, so I called 911. Next thing I knew the kid who wasnt wearing a

121

costume runs over to the kid with the bow and arrow and says theyve gotta get out

122

of there. At this point I can only assume theyve just robbed the place, and they

123

could be coming for the register. I spoke to the dispatcher as I heard more

124

shouting in the background. Now, I admit at this point Ive started to duck behind

125

the counter. I told the dispatcher that a kid dressed up like an archer just attacked

126

someone in my store with a bow and arrow, and that they probably stole from me.

127

I also heard a weird snapping sound, and couldnt identify where it was coming

128

from. I saw the two teens run out of the store, and the next thing I knew, the

129

customer was stomping out of the store behind them. She was angry, and she had

130

something dripping off of her arm, with an arrow sticking out of her hand. I

131

couldnt tell if she was injured, and as I yelled out after her, she ignored me.

132

I always assumed that the people going to the Faire would be carrying fake

133

weapons, but if whatever this kid was carrying was enough to injure a customer, I

134

wasnt taking any chances! When I heard that customer scream, it sounded like she

135

was hit pretty hard to me, and for all I knew it wasnt someone going to the

136

Medieval Faire at all, or it was someone who had lost their common sense. When

137

the kids got outside, there was shouting, and I could hear more people. I didnt

138

know who else had shown up outside, but I knew things were getting louder. I

139

heard more shouting from the parking lot, and I could hear Officer Greens
101

140

motorcycle approaching, even over the shouting outside. From where I was, I

141

could see the red and blue from the flashing lights on Officer Greens motorcycle.

142

When I found out the kid was just holding a toy bow and arrow, I felt bad

143

for him/her, but I dont know what would possess a kid to play around like that?

144

People would tell me they were young, and didnt know any better, but Ive seen

145

my fair share of teens commit adult crimes in my store. I was relieved when I

146

found out later they had sent Officer Green, who has always done his/her best to

147

protect my store and thats what he/she did here. Do you think I need people in my

148

store shooting arrows at my customers and hitting them in the head? I dont care if

149

it is a toy or not. If it had been my son doing this, youd better believe I wouldve

150

taught them better than that. Neither one of those teens had any business playing

151

around in my store or causing a disturbance. I want people to feel like they are

152

safe coming into my store, and after this whole fiasco, its going to take some time

153

to restore the image. This kind of blow to business was exactly what I was trying

154

to avoid!

102

3. PAT SWEENEY (Peace Officer Academy Trainer)


1

My name is Pat Sweeney, and I am a training officer at the Harmony State

Peace Officer Training Academy. I have been employed there for 16 years. I

teach the training course on the use of force to police cadets and have done so for

my entire 16 years at the academy. I am also responsible for keeping the training

records of all cadets trained at the Training Academy, including Officer Riley

Green. Before being so employed I was a police officer for 7 years in the City of

Buckeye where I served as a patrol officer for 4 years and a sergeant for 3 years. I

was recruited to the Training Academy by the then superintendent because of my

experience in mentoring new recruits to the Buckeye police department, and the

10

recommendation of my Chief of Police because of my ability to avoid the use of

11

force in numerous situations during my employment. I was one of the founders of

12

the Developing a Street-Ready Mind program for officers in Buckeye and in

13

neighboring departments. I have served as an expert witness for the Harmony

14

Attorney Generals Office, as well as the Harmony Peace Officer Training

15

Commission, and have presented numerous papers for the U.S Justice Department

16

on reasonable responses to assault and aggression.

17

In the State of Harmony, all police recruits must undergo 1000 hours of

18

rigorous training, pass their courses and pass a comprehensive exam in the many

19

areas of skill and knowledge that are required of law enforcement


103

20

officers. Training at the academy includes both theory instruction and practical

21

application courses. Included in that course work are requirements in the current

22

state of the applicable case law on the issue of the use of lethal force against

23

suspects who may be dangerous to police officers or others in the general

24

public. Additionally, all recruits, in order to become certified law enforcement

25

officers in the State of Buckeye, must pass a difficult shoot-no-shoot skills test.

26

Throughout an officers training, officers are taught to follow strict

27

guidelines in determining the appropriate level of response in a variety of

28

situations. In training our officers, we utilize recognized best practices and

29

guidance from case law. Officers are trained to follow a standard action response

30

continuum, which is designed to closely resemble the policies that most of our

31

officers will encounter when they take positions in various departments around the

32

state. Police departments around the state establish use-of-force policies for their

33

departments, which may vary from the policies taught at the Academy. Peace

34

officers are responsible for knowing the policies of the department in which they

35

are employed.

36

Because many of our cadets leaving the academy take positions with

37

Buckeye City Police Department, I am familiar with the Buckeye Police

38

Departments Action Response Continuum (ARC). I can confidently say that it is

39

consistent with the training that our officers receive at the academy, and does not
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40

substantially differ from the model action response continuum that we follow at the

41

academy. As a peace officer assigned to Buckeye City Police Department, Officer

42

Green would be responsible for knowing and following the Buckeye City Police

43

Department ARC.

44

When determining the appropriate level of force to use, policies recommend

45

an officer first observe and assess the actions of the suspect. In doing so, the

46

officers use of force is in fact a response. The continuum establishes the

47

expectation that in routine interactions with police, officer presence and verbal

48

communication can be sufficient when interacting with the public. According to

49

the Buckeye City Police Department ARC, when a suspect is exhibiting low-level

50

noncompliance, for example they are resistant to an officers lawful verbal

51

commands, the officer is trained to respond by things like open hand controls,

52

entering escort position (taking hold of the suspects arm and elbow to direct their

53

movement), receiving additional assistance from other officers present, etc.

54

As the actions of the suspect escalate, the officers response will likewise

55

escalate. The clear response in most continua, and most specifically the Buckeye

56

City ARC, states that when there is imminent threat of physical harm it is

57

warranted to protect oneself or another from danger of imminent death or serious

58

bodily injury. For example, when the suspect is using a deadly weapon, or is

59

engaging in life threatening weaponless assaults, the officer is trained and


105

60

authorized to respond with deadly force due to the high probability of danger that

61

exists to the life of the officer, the suspect, or others nearby. Should greater use of

62

force be required, there are mediating factors such as the age, sex, skill level, and

63

strength of the office. Also important is how close the officer is to the weapon,

64

special knowledge of the situation or environment, availability of other options,

65

etc.

66

The law also requires that use of deadly force comply with the

67

reasonableness requirements of the Fourth Amendment, as it has been interpreted

68

in case law. Officers use of deadly force is deemed to be reasonable when the

69

suspect poses an immediate threat of serious physical harm to self or others, and

70

where a crime has been committed involving infliction or threatened infliction of

71

serious physical harm, and when a warning is issued before using force (unless

72

circumstances make a warning unfeasible). Special considerations are also taken

73

into account, such as the split-second decision required in most scenarios officers

74

face. Although it is often easy to fully analyze a situation after the fact with

75

distance and hindsight, officers are judged as they would have been able to

76

perceive the facts at the time of the incident.

77

The Buckeye City Police department has adopted many responses to

78

scenarios such as responding to someone who is unresponsive, someone who has

79

become physically violent, or has started to resist arrest.


106

80

To form my opinion in this case, I have reviewed the relevant portions of the

81

Buckeye City Police Department Action Response Continuum, as well as the full

82

incident report issued by the Internal Affairs Division of the Buckeye City Police

83

Department. Based upon my experience, knowledge and expertise, I have formed

84

an opinion, to a reasonable degree of professional certainty, as to the justification

85

of the use of lethal force by Officer Green against AJ in the situation in which

86

Officer Green found him/herself. My opinion is based upon the following facts:

87

1. Officer Green was advised by dispatch at 18:20 that an individual was

88

threatening the customers at the convenience store with the use of a deadly

89

weapon (bow and arrow), and/or attempting to rob the store while in

90

disguise;

91

2. Upon arriving at the scene Officer Green observed that AJ, a person meeting

92

the description of the individual as given by the dispatcher, had a weapon

93

(bow and arrow) in his/her hands that appeared to be lethal and functional;

94
95
96

3. Officer Green observed that AJ was apparently in a disguise and flexing the
bow and arrow using both hands; and
4. Officer Green witnessed a verbal argument occurring between the suspect

97

and another individual, and reasonably concluded that the suspect posed

98

serious physical danger to the other individual; and

107

99
100

5. Officer Green took cover behind the police motorcycle on which he/she
arrived; and

101

6. Officer Green requested backup at 18:23; and

102

7. Officer Green ordered the suspect to drop their weapon, and the suspect was

103
104
105
106

unresponsive to officers communication; and


8. Officer Green determined that the suspect appeared to be about to fire
his/her weapon at Officer Green; and
9. Officer Green discharged his/her weapon twice, shooting the suspect in the

107

shoulder.

108

An analysis of these facts under the policies of the department and the law

109

leads me to conclude that Officer Greens use of force was reasonable under the

110

circumstances. When Officer Green was called to the scene for a potential armed

111

robbery, there was a reasonable expectation of harm upon arrival on the scene.

112

Additionally, the scene to which Officer Green was dispatched was one in which a

113

crime involving serious physical harm to others was inflicted or threatened (armed

114

robbery and/or assault).

115

Officer Green was approximately 30 feet from the suspect upon arrival, and

116

was taking cover behind the motorcycle. Based on this distance, and the relatively

117

poor coverage provided by a motorcycle, it is my opinion that Officer Green had a

118

reasonable belief that the suspect presented danger of serious physical harm to the
108

119

officer and the bystanders. Under the Buckeye Police Department ARC, the

120

presence of an armed suspect upon arrival, and the fact that the suspect presented

121

threat of serious physical harm, indicates to Officer Green that use of deadly force

122

may be required.

123

The police dispatch log indicates that prior to discharging his/her weapon,

124

Officer Green requested backup at the scene, as directed by Buckeye City policy.

125

The incident report indicates that Officer Green issued a verbal warning to the

126

suspect, which complies with both Buckeye City policy and recognized best

127

practices. When Officer Green communicated with the suspect, they were

128

unresponsive, and proceeded to point the weapon at Officer Green. Given the

129

immediacy of the threat once the weapon was pointed at Officer Green, the choice

130

to respond with deadly force was reasonable under the circumstances.

131

In my opinion, I also consider how the scene would have appeared to Officer

132

Green at the time of the incident, rather than in hindsight. In doing so, I take into

133

account other special circumstances such as environmental factors, and distance.

134

When Officer Green arrived on scene, it would have been unwise to approach a

135

suspect holding a deadly weapon closer than would be necessary. By maintaining

136

a distance of 30 feet, Officer Green sought to ensure his/her own safety while still

137

responding to the scenario. At this distance, a bow and arrow can still reasonably

138

be seen as a serious physical threat to the officer. Additionally, this distance


109

139

(which in my opinion is as close as we would recommend an officer approach)

140

made it more difficult to distinguish the characteristics of the weapon that may

141

have indicated it was actually a toy.


An additional factor that can be considered is the presence of environmental

142
143

conditions encountered and experience held by Officer Green to suggest that the

144

weapon was indeed real. The convenience store in question was part of Officer

145

Greens regular patrol, and s/he was dispatched to the convenience store on more

146

than one occasion for serious and often deadly crimes. Environmentally, therefore,

147

the location can be classified as a high crime area that would encourage any

148

reasonable officer to enter the situation with heightened vigilance. Prior

149

experience at the scene suggested to Officer Green that the weapon would likely be

150

real.

151

Taking into account the distance from the suspect, and the special

152

environmental conditions that existed, Officer Green was reasonable in assuming it

153

was a real weapon based on the information available, and would not have been

154

able to approach the suspect to determine it was not a toy.

155

In these situations, the Buckeye Police Department ARC also considers

156

characteristics of the officer in question. Officer Green was a relatively

157

experienced officer who was not accompanied by any other officers upon arrival at

158

the scene. They knew back-up was coming, but had no way of knowing when the
110

159

other officers would arrive. Officer Green had minimal cover behind the

160

motorcycle in an otherwise open space. These additional characteristics suggest

161

that Officer Green was sufficiently experienced to know how to respond in the

162

situation, and had reason to believe that their immediate safety was at risk.

163

My opinion is that Officer Green was acting as any other reasonable officer

164

in his/her place could have acted at the same time in the circumstances in which

165

he/she found him/herself. My opinion is that, using the reasonable officer

166

standard, Officer Green was justified in using lethal force against AJ to end the

167

threat posed by AJ to him/herself and/or others. Therefore his actions were both

168

inevitable and lawful. Although the weapon was, in retrospect, found to be a toy,

169

this does not mitigate the reasonableness of Officer Greens actions. Officer Green

170

arrived on the scene of a possible armed robbery and assault to find a suspect

171

matching the description given aiming the alleged weapon at another individual.

172

The situation demanded that Officer Green take immediate action to prevent harm.

111

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:
1820:
1820:
1820:
1821:
1821:
1822:
1822:
1823:
1823:
1823:
1823:
1824:
1826:
1829:

male caller reports robbery


two male suspects
male caller reports suspect is armed
all call dispatched
caller reports suspect carried bow and arrow
ofcr en route - Green
ofcr arrives on scene
communication lost ofcr backup dispatched
ofcr green has taken shelter, requests backup
shots fired
medics requested
offcr green reports man down
dispatch officers arrive
medics arrive
medics en route to Buckeye Med.

Priority: 1 District: 106 Zone: 03


Officers Dispatched: Green
Secondary Officers: Reynolds, Suskey, Kalgreen

112

EXHIBIT B: Smoosh Brand Bow and Arrow

113

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 officers 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.

114

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;
115

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

116

EXHIBIT D:

DEPARTMENT OF INTERNAL AFFAIRS


INCIDENT REPORT AND RECOMMENDATION
Officer(s) Involved:
Date of Incident:

Riley Green
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


Dated: July 30, 2015

Chief, BC Police Department


Dated: July 30, 2015

117

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.

118

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 6feet-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. BrignoniPonce, 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

119

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.

120

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

121

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]

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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

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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

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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

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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: ***

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__ 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 highspeed 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,

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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
***

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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.

135

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

136

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 highspeed 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: ***

137

OHIO HIGH SCHOOL MOCK TRIAL TIMEKEEPER MANUAL


Timekeepers Responsibilities
I.
A.
a)
b)
c)
d)

BEFORE THE TRIAL


Be sure to have in your Timekeepers Packet:
1 Timekeeping Sheet;
1 Time Card Use Sheet;
2 stop watches;
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 sides opening statement;

b)

at the beginning of each sides direct examination;

c)

at the beginning of each sides cross examination; and,

d)

at the beginning of each sides 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/Prosecutions closing


argument, since you will need to resume the Plaintiff/Prosecutions closing
argument timing for the Plaintiff/Prosecutions 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.
138

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.

IV.

V.

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.

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.

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 judges 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.

139

OHIO HIGH SCHOOL MOCK TRIAL COMPETITION


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 judges 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.

140

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

141

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!

TIMEKEEPERS SIGNATURE
___________________________________________________________

142

15:00
10:00
143

5:00
4:00
144

3:00
2:00
145

1:00
:30
146

STOP

147

148

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 Generals 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 Prosecutors 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 Generals Office
Ohio State Bar Association
149

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 years Ohio Mock Trial Case File.

150