How to ensure use of force is "reasonable and necessary" and avoid claims of excessive force
Ask a dozen people when "reasonable and necessary force" to effect an arrest or detention becomes "excessive force" and you will likely get a dozen different answers, none of them particularly helpful in measuring the proper amount of force. Several people may ultimately question an officer’s use of force and each one may have a different idea of how to decide whether the force was excessive.
What is permissible force?
Police officers in all states are granted authority to use force to accomplish lawful objectives, such as arrest, entry to serve a warrant or make an arrest, and detention. Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007). All use of force lawsuits are measured by standards established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). In the Graham case, the Court instructed lower courts to always ask three questions to measure the lawfulness of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape?
The Supreme Court cautioned courts examining excessive force claims that "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." The Court also stated that the use of force should be measured by what the officer knew at the scene, not by the "20/20 vision of hindsight" by a Monday-morning quarterback. In sum, the Court fashioned a realistically generous test for use of force lawsuits.
In the nearly two decade history of Graham v. Connor, courts have refined the three-prong Graham test and applied a number of additional factors. For example, courts consider the degree of threat posed by the suspect to officers or the public in light of relative numbers and strength. When officers are outnumbered or confronted with particularly powerful suspects, additional force may be justified. Sharrar v. Felsing, 128 F.3d 810 (3rd Cir. 1997). Courts may also consider the immediate availability of less-lethal tools. Tom v. Voida, 963 F.2d 952 (7th Cir. 1992). However, an officer or agency cannot be held liable for the agency’s failure to purchase and deploy a particular less-lethal technology. Estate of Smith v. Silvas, 414 F.Supp.2d 1015 (D. Colo. 2006). The suspect’s history of mental illness, or level of impairment from alcohol or drugs, also contributes to the analysis of the threat posed by the suspect. Krueger v. Fuhr, 991 F.2d 435 (8th Cir.), cert. denied, 510 U.S. 946 (1993); Hunt v. County of Whitman, 2006 WL 2096068 (E.D. Wash. 2006).
An officer may use only that force which is both reasonable and necessary to effect an arrest or detention. Anything more is excessive force. Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). In addition to the questions asked by the Graham v. Connor test, courts consider the need for the application of force, the relationship between the need and amount of force used, and the extent of the injury inflicted by the officer’s force.
Deadly force is also measured by the Graham test, and is also limited by other constitutional considerations. Twenty years ago, the Supreme Court abolished the "fleeing felon" rule that permitted the use of deadly force against any fleeing felon (about half of the states had already abandoned the rule by statutory changes).
Contrary to public belief, police rarely use force. Any veteran cop will tell you that he or she uses interpersonal communications skills infinitely more often than arrest control techniques. Research by the International Association of Chiefs of Police shows that officers use any degree of force in less than one out of every 2,500 calls for service. Nearly three decades ago, one of my training officers put it like this: "this job is 99% sheer boredom, followed by 1% pure terror." Experience has shown that he far underestimated the percentage of general "boredom."
All too often, use of force is evaluated by those who lack the necessary education and experience to make a fair assessment. The agency’s use of force review will likely be completed by supervisors who understand the dynamics of violent encounters. However, civilian review board members, attorneys, and private investigators lack the experience to fairly examine use of force situations. Even well-meaning assessors are likely to be limited in experience to hundreds of hours of television and movie cop training (how realistic is that!) and a few Friday night ride-along tours.
Some courts have long applied a skewed Monday-morning quarterback view that a suspect shot in the back is the victim of de facto excessive force. McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002) ("the fact that Doyle was shot in the back is itself evidence of excessive force"); Samples v. Atlanta, 846 F.2d 1328 (11th Cir. 1988).
Any use of force lawsuit will at least scrutinize, and possibly challenge, an agency’s use of force policies and training protocols. The first step to managing use of force liability is to maintain a legally sound, up-to-date policy. The use of force policy copied ten years ago from a friend who had a city attorney take a stab at drafting a use of force policy is probably out-of-date or legally insufficient, or both.
A great policy is worthless if officers are not trained in constitutional limitations on the use of force and the parameters of the agency’s policy. How many agencies require firearms qualification two or more times each year, but never provide training on the latest court decisions or statute changes that govern use of force? How many agencies provide regular in-service training of non-lethal less-lethal perishable skills, such as defensive tactics? Are your agency’s officers trained to recognize and respond to exited delirium syndrome?
Even though police use of force is statistically uncommon, tremendous liability and potential for injury comes with each force situation. No use of force should merely be reported. Each situation is an opportunity to evaluate the officer, policy, training, equipment, etc., and ask how to approach similar situations in the future. At a minimum, the agency should ask the following questions as risk management tools:
Act on the answers. Improve the policy. Enhance training. Get the best tools available. Support the officers involved. Stay safe.
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