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.
Force may be reviewed by an internal review board, supervisors and/or the chief, the district attorney screening the arrest for charges, an independent civilian review board, and perhaps even a judge and jury if a civil lawsuit for excessive force is filed. This column will help officers measure what force is permissible, and how to better report the use of force so that force investigations and lawsuits can be avoided, or at least made less painful.
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).
When does force become "excessive"?
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.
The Graham v. Connor factors govern both the amount of force used, as well as the force method, tool, or weapon used. United States v. Dykes, 406 F.3d 717 (D.C. Cir. 2005). A federal judge noted that the use of a Taser and multiple baton strikes against Rodney King, including a PR24 baton strike to the face, were, if not reasonable, at least not criminally excessive force. Officers delivered some 50 powerful blows and strikes after King first resisted officers, he complied with commands. After King assumed a felony prone position, one of the officers kicked him and another struck him five or six times with a baton.
Even though officers used substantial force to compel King into a prone position, only the last few blows lead to criminal liability because King had complied with the order to assume a prone position and submit to handcuffing. United States v. Koon, 833 F.Supp. 769 (C.D. Cal. 1993), aff’d in part, 518 U.S. 81 (1996).
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).
In Tennessee v. Garner, 471 U.S. 1 (1985), the Court suggested that there are three circumstances when an officer can use deadly force: first, when the officer is threatened with a deadly weapon; second, when the officer has probable cause to believe that the suspect poses a threat of serious physical harm or death to the officer or to another; or third, when the officer has probable cause to believe that the suspect has committed a crime involving threatened or actual serious physical harm or death to another person. The Court also noted that, when feasible, a warning should precede the use of deadly force.
A fair evaluation of the use of force
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).
Such a conclusion might seem reasonable to a person on the street, or even to an inexperienced police officer. However, long-overdue scientific research by people like Dr. Bill Lewinski of the Force Science Research Center is now changing conventional assumptions. Dr. Lewinski and his colleagues apply biomechanics to use of force analysis and demonstrate the critical relationship between a sound understanding of the dynamics of human factors in combat and a fair and objective analysis of use of force.
Investigative approaches by Lewinski and others apply to far more than shots terminating in a suspect’s back. Anyone claiming to provide an objective evaluation of police use of force must gain the necessary educational foundation to even ask the right questions in order to reach reliable conclusions. Agencies must broaden the vision of training, experience and education for those who analyze force situations and pass judgment on the reasonableness of force.Tactics for limiting liability
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.
Some agencies are fortunate to have in-house legal counsel specializing in law enforcement issues, or at least have dedicated civil attorneys from the city or county counsel’s office. Excellent alternatives are available to keep critical policies fine-tuned. Many western cities and counties rely on Lexipol (www.lexipol.com), a firm with attorneys with many years of specialized experience in defending use of force lawsuits and drafting sound policies.
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:
Was the officer’s intervention fully legal? Was the intervention based on a lawful objective, such as a valid arrest, detention, search, frisk, community caretaker custodian of mentally ill, defense of an officer or a citizen, or to prevent escape?
Was the use of force proportional to the person’s resistance? Was there an urgent need to resolve the situation? Even though there is no duty to retreat, could the officer have used lesser force and still safely accomplish the lawful objective?
Was the officer well-trained, qualified and competent with all force tools authorized by the agency?
Does the officer’s conduct appear to be objectively reasonable? Did the officer’s conduct precipitate the use of force? Is the officer’s language or behavior inappropriate or unprofessional?
Act on the answers. Improve the policy. Enhance training. Get the best tools available. Support the officers involved. Stay safe.
About the author
Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. The views expressed herein are his own. A veteran officer and attorney, his most recent book, The K9 Officer’s Legal Handbook is now available from LexisNexis. For more information about this valuable new book, go to www.kenwallentine.com. Chief Wallentine publishes Xiphos, a free biweekly legal update newsletter for law enforcement officers. Free subscription information is available at his website. Contact Ken Wallentine