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Cites

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1		-I value morality. First, morality must address the nature of individual personhood and reasons for actions, Morse:
2		-In brief, the law’s concept of the person is a creature who acts for reasons and is potentially able to be guided by reason. Physical causes explain all the moving parts of the universe, but only human action can also be explained by reasons. It makes no sense to ask the winds or the tides or infrahuman species why they do what they do, but this question makes sense of and is central to our explanations of human behavior. When we want to know why an agent intentionally behaved as she did, we do not desire a biophysical explanation, as if the person were simply biophysical flotsam and jetsam. Instead, we seek the reason she acted, the desires and beliefs that formed the practical syllogism that produced intentional conduct.
3		-Only a conception of morality with an understanding of reasons for why people act is able to assess conduct. Just as we don’t place noteworthy blame on a hurricane for killing people, morality must account for the responsibility of its actors, Morse 2 ,
4		-The law’s concept of responsibility follows from its view of the person and the nature of law itself. Unless human beings are rational creatures who can understand the applicable rules and standards, and can conform to those legal requirements through intentional action, the law would be powerless to affect human behavior. Legally responsible agents are therefore people who have the general capacity to grasp and be guided by good reason in particular legal contexts. They must be capable of rational practical reasoning. The law presumes capability and that the same rules may be applied to all people with this capacity. The law We do does not presume that all people act for good reason all the time. It is sufficient for responsibility that the agent has the general capacity for rationality, even if the capacity is not exercised on a particular occasion. Indeed, it is my claim that lack of the general capacity for rationality explains precisely those cases, such as infancy or certain instances of severe mental disorder or dementia, in which the law now excuses agents or finds them not competent to perform some task.
5		-Thus the standard is consistency with individual capabilities. You can only be held to obligations if you are responsible for the reason those obligations are necessary and capable of performing them.
6		-
7		-Police officers often have to make split-second decisions in their line of work – it’s inevitable. McGuinness 02
8		-J. Michael McGuinness, Law Enforcement Use of Force: The Objective Reasonableness Standards under North Carolina and Federal Law, 24 Campbell L. Rev. 201 (2002). - http://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1387andcontext=clr
9		-In a split second, officers are required to evaluate and employ force against criminal suspects to thwart apparent dangers to citizens and themselves.' ° The officer is often alone in this nightmare, like a "pedestrian in Hell."'" The officer's environment in use of force deci- 5. Saucier v. Katz, 533 U.S. 194, 206 (2001). 6. See Brown v. Gilmore, 278 F.3d 362, 370 (4th Cir. 2002); Schwartz, 2002 WL 312501; Volpe, 224 F.3d 72. 7. One of the three primary United States Supreme Court cases arose from North Carolina. See Graham v. Connor, 490 U.S. 386 (1989). In North Carolina, even investigations into alleged excessive force have generated high profile litigation. See In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001), where an unprecedented ex parte procedure was used by the State Bureau of Investigation, but ultimately declared improper, to obtain confidential personnel and internal affairs files of officers without a warrant and without notice to the officers and opportunity to be heard. 8. See THOMAS T. GILLESPIE ET AL., Police Use of Force: A Line Officer's Guide (Varro 1998); DR. ALEXIS ARTWOHL and LOREN W. CHRISTENSEN, DEADLY FORCE ENCOUNTERS: WHAT Cops NEED TO KNOW TO MENTALLY AND PHYSICALLY PREPARE FOR AND SURVIVE A GUNFIGHT ( Penguin Press 1997). 9. See Saucier, 533 U.S. 194; Graham, 490 U.S. 386; Tennessee v. Garner, 471 U.S. 1 (1985). This trilogy provides the parameters for the typical use of force case. See Bd. of Comm'rs v. Brown, 520 U.S. 397 (1997)(reviewing governmental liability issues). 10. See Saucier, 533 U.S. 194; Park v. Shiflett, 250 F.3d 843, 853 (4th Cir. 2001); Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001); McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994). "An officer oftentimes only has a split second to make the critical judgment of whether to use his weapon." Ford v. Childers, 855 F.2d 1271, 1276 (7th Cir. 1988). 11. "The policeman's world is spawned of degradation, corruption and insecurity .... he walks alone, a pedestrian in Hell." WILLIAM A. WEsTLEY, VIOLENCE AND THE POLICE: A SOCIOLOGICAL STUDY OF LAW, CUSTOM and MORALITY V. (MIT Press 1970). "A police officer's life is always at risk, no matter how routine the assignment might seem." National Law Enforcement Officers Memorial Fund, Inc., Police Deaths Mount Nationwide, , at 1. "On average, one police officer dies within the line of duty nationwide every 54 hours." Id. "There are more than 3 McGuinness: Law Enforcement Use of Force: The Objective Reasonableness Standa Published by Scholarly Repository @ Campbell University School of Law, 2002 CAMPBELL LAW REVIEW decision-making is particularly unique because of the time pressures to act immediately without "armchair reflection"12 and because the lives of officers and bystanders are often at immediate risk. Many of these split second decisions by officers to employ force are correct, while some are mistaken. Under what circumstances does a mistaken belief that deadly force is necessary subject an officer to civil, criminal or civil rights liability? Generally, if the officer's mistaken belief is objectively reasonable under the circumstances, then the officer is not subject to any liability. The perceived danger must only be apparent, not actual, in order to justify the use of deadly force. North Carolina and federal law provide that where officers make reasonable mistakes, there is generally no liability. Professor Rubin of the Institute of Government at the University of North Carolina has observed that "despite its place in North Carolina jurisprudence, however, the excessive force element has been difficult to apply. The principle difficulty has been with distinguishing the requirement that the Defendant's force not be excessive, or unreasonable, from the reasonable belief requirement embodied" in the law. 13 Recent cases have clarified these issues, especially Saucier v. Katz, 14 where the Supreme Court reaffirmed recognition of the doctrine of mistaken beliefs in use of force cases
10		-Officers do not fully act upon their free will during these split second decisions. Studies prove that hormonal responses to these stressful situations make the officers use “instinctive” thinking. Ross 13
11		-Assessing Lethal Force Liability Decisions and Human Factors Research Darrell L. Ross, PhD, Professor and Department Head, Department of Sociology, Anthropology, and Criminal Justice, and Director of The Center of Applied Social Sciences, Valdosta State University - Darrell L. Ross, PhD, is a professor and the Department Head for the Department of Sociology, Anthropology, and Criminal Justice at Valdosta State University in Valdosta, Georgia, as well as the Director of The Center of Applied Social Sciences. His research interests and published works include use-of-force litigation, civil liability issues in policing and corrections, stress and human factors in use-of-force incidents, sudden restraint deaths in custody, criminal law, and criminal procedure. Dr. Ross provides training to criminal justice personnel and expert witness testimony in these subject areas.
12		-It is well-known that physiological stress can impact perception (Janis and Mann, 1977; Welford, 1980). In a high-level stress situation in which the person develops the perception that their life is in immediate peril, a cascade of physiological components are automatically released which prepare the body to respond. Cannon (1929) best described this automatic and adaptive response mechanism as the “fight or flight” response. The physiological response under stress activates the autonomic nervous system triggering a sympathetic nervous system (SNS) discharge which results in an immediate release of epinephrine and hydrocortisone; an increase in blood pressure; an increase in heart rate; perspiration; muscle tension; an increase in pupil size; dry mouth; increased breathing rate; and improved blood flow to the brain, heart, and large muscles. This process is activated without conscious thought to prepare the person to respond to the stressful encounter (Groer et al., 2010; Sapolsky, 2004; Schwartz and Begley, 2003). Under an SNS discharge, physiological resources flow to various regions of the body in order to respond to the threat. In a lifethreatening and stressful circumstance, the focus of the brain shifts from thinking to reacting (Easterbrook, 1959). The focus is on the source of the threat; as cognition processing slows, instinctive decisionmaking takes over. As the brain tunes into the source of threat, the visual system is heightened and narrows if it is the dominant source of the information. The more complex the threat and the environment, the more pronounced the effect of the stress on perception will be (Welford, 1980). The phenomenon is referred to as perceptional narrowing (tunnel vision) or selective attention. Intentional blindness may occur, which is a failure to see what is obviously directly in line of the vision due to an attentional focus on a competing visual input. Peripheral vision can be significantly narrowed, and information thought to be of little concern is unconsciously rejected and filtered out. Hearing may be diminished causing auditory exclusion. If hearing is the dominant source of information, visual exclusion may occur when a loud sound is heard. Other senses may also be tuned out.

EntryDate

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1		-2016-11-20 13:55:43.0

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1		-f

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1		-f

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1		-5

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1		-Finals

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1		-Strake Jesuit Herrera Neg

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1		-NC

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1		-df