Apart from employment-related litigation, use-of-force cases are the largest category of lawsuits against officers and their agencies. And all too often, officers win the confrontation on the street only to lose the confrontation in the courtroom when they’re sued for using excessive force.
In federal civil cases seeking millions of dollars in damages, plaintiffs’ attorneys commonly claim that defendant officers could have prevented fatal conflicts by using better tactics, that they should have deployed less-lethal options rather than shooting, that they failed to give verbal warnings before delivering deadly force, that they had a duty to retreat rather than violently engage, and so on.
Their assertions may be little more than legal bombast. But they sometimes confuse officers just as they are intended to confuse civilian jurors. And that’s dangerous. When you’re facing a critical force decision, your mind needs to be focused without hesitation or doubt on the tactical problems at hand, not on where you might stand in a lawsuit later.
This quick True/False quiz addresses issues typically raised in excessive force litigation. See how well you can separate legal fact from the many misconceptions that abound.
The answers are based on federal laws and the decisions of the Supreme Court and federal appellate courts, the primary sources of legal rules that govern your use of force. For any differences that may affect claims brought against you in your state courts, consult your department’s legal advisor.
1. There are constitutional limits on the types of weapons and tactics you can use on the street. True of False?
2. Your intent and your state of mind at the time you use force can be important factors in determining if your use of force was legal. True or False?
3. You must always retreat if possible before using deadly force. True of False?
4. You must first see a suspect’s weapon before you can use force. True of False?
5. You must always use the least amount of force possible to gain control of a person. True of False?
6. You cannot lawfully shoot a fleeing felon. True of False?
7. You may not use force to temporarily detain someone for purposes of a Terry stop. True of False?
8. Information you discover after force was used can be a factor in determining if the force you used was legally justified. True of False?
9. Courts and juries are permitted to evaluate your use of force by considering what you could have done differently. True of False?
10. Your uses of force in prior incidents can be considered in court in evaluating whether your use of force in the current situation was legally proper. True of False?
Emory Plitt, Jr. is a Circuit Court judge in Maryland and an instructor in the Lethal and Less-Lethal Force seminar presented twice yearly by Americans for Effective Law Enforcement. For 20 years he served as principal legal advisor to the State Police, 24 sheriffs’ agencies, and the Department of Correctional Services in Maryland. AELE is a nonprofit educational organization that has provided legal information to law enforcement and correctional officers for more than 35 years. The group maintains an outstanding, no-charge law library, with extensive files on public service court decisions at aele.org