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How Much Force Is Acceptable?

Law enforcement officers use force upon people for numerous reasons.  An officer may use force to detain, to arrest, for self-defense, for defense of others, for defense of property, to prevent the person from injuring himself, to prevent the person from destroying evidence, to quell a riot, etc.  However, the essential basic purpose for an officer's use of force is to gain control of a person and to stop any threatening action by that person.

There are many standards floating around in the law enforcement and criminal justice community that allegedly dictate how much force an officer may justifiably use.  Because of all of these standards, it is often confusing to determine whether the officer's use of force is in fact "justified" or "acceptable."

In order for a law enforcement officer's use of force to be acceptable it must:

1.         Be within the boundaries of United States Constitutional and Statutory law.

2.         Be within the boundaries of the applicable state constitutional and statutory law if that state law is more restrictive than Federal law.

3.         Be within the acceptable limits of the applicable department policies, procedures, and training.

4.         Be in compliance with applicable equipment manufacturers' guidelines.

United States Federal Constitutional Parameters of Law Enforcement Force

Introduction:
Over the years the Federal Constitutional limits of a law enforcement officer's use of force have varied as courts' definitions have matured and become more detailed.  As the law has developed, an officer's ability to use force has come under greater scrutiny.  This enhanced scrutiny was (in part) caused by individuals having greater access to attorneys, the courts, and recovery under the Federal Civil Rights Act, and by enhanced political pressures due to intense media coverage, special interest groups, and public disobedience in response to a use-of-force incident (riots).

Immediately prior to the present "objective reasonableness" (under Graham v. Conner ^[1] ) standard, in most instances (other than in deadly force against a seized free person - Tennessee v. Garner) an officer could use that amount of force that did not "shock the conscience" of the court (the Johnson v. Glick ^[2] test).  The Johnson v. Glick test was an analysis of the officer's use of force under the 14th Amendment's (to the United States Constitution) "due process clause."  Under the Johnson v. Glick test there were four (4) questions to be answered:

1.         What was the need for the officer's use of force upon the person?

2.         What was the relationship between the officer's need to use force and the amount of force that the officer used?

3.         What was the extent of the injuries inflicted on the person by the officer's use of force?

4.         (the "subjective" element of the test) Was the officer's use of force applied in good faith or maliciously and sadistically for the purpose of causing harm?

In 1989, the United States Supreme Court decided the case of Graham v. Conner.  The Graham case made clear that the standard for an officer's use of force upon a "seized" -- "free person" was whether the officer's force was "objectively reasonable" under the Fourth Amendment (to the United States Constitution).  The Graham case, and its OBJECTIVE reasonableness test replaced the subjective "shock the conscience" test when the officer's use of force is directed against a "seized" -- "free person."

Today's Federal Use-of-Force Standards:
Under the United States Constitution there are essentially two basic legal standards for judging an officer's use of force.  The first (and most restrictive) standard of "objective reasonableness" only applies to the use of force upon a "seized free person."  The second (and more lenient) standard of "shock the conscience" (of the court) applies to "non-seized free persons," pre-trial detainees, and people who are convicted and incarcerated.  In other words the second standard applies to any use of force, by an officer, that is not directed at a "seized free person."  I will not bore you with all of the underlying foundations for these two standards, but let's explore exactly what these standards mean.

Prelude to Using Force:
Before we explore the various aspects of the two standards we must first examine the underlying requirements to an officer's use of force.

1.                  An officer must have lawful authority.  There are usually many ways for an officer to gain authority.  The foundations of authority are primarily found in state law.  In the vast majority of use-of-force incidents an officer's authority does not come into question.  However, there have been cases where an officer "thought" that he had authority when in reality he did not and the resulting consequences were disastrous.  Even when an officer does not have "lawful authority" he will still have the same right to act as a normal person.  Meaning, an officer, even without authority, will still have the right to self-defense, defense of others, defense of property, etc., just as any other person.  However, in some jurisdictions an officer acting as a normal person (without actual officer authority), will have a duty to retreat and the availability of "citizen's arrest" authority may be substantially limited.

2.                  An officer must have a lawful objective for taking action.  Any time an officer uses his governmental authority to bring a person under control the officer MUST have a "lawful objective" for taking the action.

1.                  Lawful objectives may include: detention, frisk, arrest, involuntary mental commitment, self defense, defense of others, defense of property, preventing escape, and others.

2.                  "Contempt of Cop" or a person's disrespectful attitude toward an officer is not a "lawful" reason for using force. ^[3]

3.                  An officer need not retreat from a known threat.  The officer may "choose" to retreat in order to de-escalate the situation or in order to gain a better tactical advantage.  However, the officer need not retreat simply because he is faced with a threat that will almost certainly require the officer to use force upon the threat­ening person.

"Objectively Reasonable Force" - under the Fourth Amendment to the United States Constitution.  The objective reasonableness standard applies when an officer "seizes" a "free person."  This test does not apply if the person the officer is interacting with is an "unseized free person," a pretrial detainee, or an incarcerated person under conviction.

Under the objective reasonableness standard an officer may use that amount of force that is "objectively reasonable."  So what are the parameters of "objective reasonableness?"

4.                  "Balancing Test" - The "objective reasonableness" test is a balancing test between the person's right to privacy and physical integrity weighed against the government's legitimate interests in taking action against the person.  Put another way, the more heinous the person's activities and/or threat level, the more force that an officer may justifiably use.  As an example:

5.                  "Objective" v. "Subjective" - "Subjective" refers to what the officer "believes" (or the officer's intent).  "Objective" refers to what others would logically believe, or conclude.  An officer's use of force will not be judged by what "HE" believes to be acceptable, rather the question is would a reasonably prudent and well trained officer believe that what the officer did was acceptable?

1.                  The Officer's INTENT is Irrelevant - Since the standard is an "objective" one, the officer's "subjective" intent is irrelevant.  In other words, the officer's underlying motivation is not relevant to the analysis.  The question is whether the officer's use of force is OBJECTIVELY appropriate (not subjectively).

2.                  Do not confuse what an officer "believes" with what an officer "knows."  What an officer "knows" is critical in determining the appropriateness of an officer's force.  What an officer "believes" (or intends) is not relevant.

1.                  Example:  An officer knows that the person confronting him is 6'5" tall, has just used PCP, is a martial arts expert, may have several concealed weapons, and has just brutally attacked another officer without provocation.  All of these factors are "relevant" because they comprise what the officer "knows."  The officer may be very angry with this man because the man has just attacked a fellow officer.  This anger is "irrelevant" to the analysis because it is the officer's "subjective" intent, and NOT "objective" facts.

3.                  "Reasonably prudent and well-trained officer" means that the officer MUST know the law - whether he does or not.  It is assumed that a reasonably prudent and well-trained officer will know the acceptable, and unacceptable, limits of the law.  So, if an officer unknowingly violates the legal limits of his authority, this use of force will be determined to be "unreasonable."

6.                  Under the "Totality of the Circumstances" - An officer's use of force will be judged upon the "totality of the circumstances" as known by the officer at the moment the force is used.

1.                  Information learned AFTER the officer uses the force is irrelevant to assessing the appropriateness of the officer's use of force.

2.                  Any background information that the officer knows may be included in the totality of the circumstances.

1.                  Example:  If an officer knows that a certain individual is known to be a physical threat to officers, and this same man is a martial arts expert, the officer can take this information into account when determining how much force he may use.

7.                  NOT to be Judged in HINDSIGHT - Officers must often make split-second judgments in tense, uncertain, and rapidly evolving situations.  Is it fair to the officer, or appropriate, to judge an officer in the quiet sanctuary of a judge's courtroom?  No.

1.                  Example of this principle:   In a use-of-force incident, an officer may have only seconds to make a life or death decision on how much force to use.  Those criticizing the officer's use of force may have months, or even years, to criticize the officer's force decision.  Also, the critics may have access to information and evidence that the officer did not know.

2.                  Example: An officer is walking through a park late at night.  In the dark shadows an officer sees a dark figure pointing a gun at the officer.  The officer draws his gun and shoots, killing the dark attacker.  In the incident aftermath, it is determined that the gun was a toy and the dark figure was 13 years old.  While the incident had tragic consequences, the officer's use of force based upon the facts known to him at the moment of the shooting was appropriate.

8.                  Even Use-of-Force Without Injury Can Be "Excessive" Force - The mere fact that a force recipient does not sustain a significant injury does not, by itself, defeat an excessive force claim. ^[4]   A jury could properly find that an officer's use of pain compliance techniques before a suspect posed any immediate threat to the arresting officers was excessive force. ^[5]

9.                  An Officer MAY NOT Assume the Negative (If Time and Circumstances Permit) - An officer may not assume, and react upon, the negative about a person if the officer has the time and circumstances to do otherwise.

1.                  Example:  An officer is chasing a person with three (3) felony warrants. ^[6]   If the officer does not know what the warrants are for, the officer may not use this information to justify the use of an escalated level of force.  The warrants could be for felony bad checks or fraud (non-violence related crimes) - where this knowledge would not justify an escalated level of force.  Or, the felonies may be for aggravated assault of an officer - where an escalated level of force would be justified.  If the officer did not know what the warrants were for and then attempted to justify an escalation in force based upon the warrants then the officer would be "assuming the negative." Thus, if the officer does NOT know what the warrants are for then the officer may not "assume the negative" (if time and circumstances permit) and the courts will not permit an officer's escalation in the use of force.

2.                  Example:  Very late at night an officer is trying to awaken a man sitting on a park bench.  The man bolts upward with what the officer perceives as a knife in his hand.  The officer intentionally strikes the man on the head with his (the officer's) flashlight.  Later, the officer learns that the knife was actually a large shiny comb.  Here, the officer "assumed the negative."  But, the time and circumstances did not allow the officer to assume otherwise.

10.             An Officer's Use of Force Does NOT Have to be the "Least Intrusive" Option Available - An officer does not have to use the absolute least amount of force available.  The officer need only select a level of force that is within the RANGE of the "objectively reasonable" force options. ^[7]

11.             An Officer's Use of Force Will Be Judged At the MOMENT The Force Is Used - That which happens after an officer uses force is irrelevant in determining whe­ther the officer's use of force was acceptable. ^[8]

1.                  Example:  An officer shoots a suspect.  The officer's use of force is to be judged acceptable, or unacceptable, at the PRECISE MOMENT the officer pulls the trigger.

2.                  The OUTCOME is Irrelevant - Since an officer's use of force is judged at the "moment" the force is used, the "outcome" of the use of force is irrelevant (under this analysis).

1.                  Example:  An officer is justified in putting a suspect in an arm restraint.  In the process the person sustains a severe shoulder injury - actually an aggravation of a prior injury.  The officer did not know of the prior injury, or that the person was more susceptible to injury then the average person.  Since the officer's use of the arm restraint was appropriate at the "moment" it was applied then the injured shoulder - the "outcome" - is irrelevant.

12.             Under Graham - Whether the Officer's Use of Force is Deadly or Non-Deadly Is Irrelevant - under the Fourth Amendment objective reasonableness analysis. ^[9]

13.             An Officer's Use of Force Against a Fleeing Person - The United States Supreme Court in Tennessee v. Garner stated "[t]he 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, non-dangerous suspect by shooting him dead." ^[10]   Thus the Garner case includes the following principles:

1.                  Deadly force may NOT be used against a fleeing misdemeanant.

2.                  Deadly force may NOT be used against a fleeing felon when the felony is not a violent felony.

3.                  Garner requirements - in order for an officer (under Garner) to use deadly force against a fleeing felon:

1.                  Deadly Force Defense Standard - The suspect must threaten the officer with a weapon OR

2.                  Fleeing Felon (3 part) Test:

(1)               the officer must have probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm;

(2)               The use of deadly force is NECESSARY (to bring the person to prosecution) to prevent the suspect's escape; AND

(3)               The officer must give some WARNING of the imminent use of deadly force - if feasible.

14.             A Person Has A Right to Use Self-Defense Against An Officer's Excessive Force - A person has the right to use reasonable force only in self-defense against an officer who is using excessive force during a lawful arrest. ^[11]   Striking a police officer who was using excessive force while attempting to arrest another was only justified to save the other from death or serious bodily injury.  The state had abolished the right to resist an unlawful arrest, but retained a limited right of self-defense against excessive force amounting to a threat of serious injury. ^[12]

15.             The "Reasonableness" Inquiry - The reasonableness of an officer's use of force is, in part, based upon the totality of the circumstances as known by the officer at the moment the force is used.  The following five (5) questions are the basic reasonableness determining factors.  However, keep in mind that since the standard is the "totality of the circumstances," the five (5) questions are not the ONLY questions (other aspects of the incident could be considered).  Also, the following question have been placed in a specific order of priority.

1.                  Imminent Threat to Officers and/or Others - Is the person an imminent threat of injury to the officer and/or others?  The greater the level of the threat the greater the level of the force that may be used. ^[13]

1.                  PPCT's ^[14] Force Continuum - assists the officer's decision making and after-incident report articulation with the relationship between the threat level presented by the person and the use-of-force response level performed by the officer.

2.                  Remember - the Officer may NOT assume the negative - if time and circumstances permit.

2.                  Actively Resisting Seizure - If the person is actively resisting seizure then the officer may escalate his (the officer's) justified (reasonable) level of force response.

3.                  Circumstances are Tense, Uncertain, and Rapidly Evolving - ("Officer's legitimate anxiety factor") - Some incidents take hours to resolve, while others start and are over in seconds.  The more tense, uncertain, and rapidly  evolving the incident the higher level of force that will be judged to be reasonable.

4.                  Severity of the Crime at Issue - The more severe the crime committed the more force that an officer may justify.  Remember, an officer cannot assume the negative if time and circumstances permit.

5.                  Attempting to Evade Seizure by Flight - Is the person attempting to evade seizure by flight?  If yes, then this will assist the officer in justifying an escalating level of force.

These five (5) factors can be graphically depicted.  By using a 0-10 scale for each of the factors, and another for the officer's use of force, the relationship between the factors and the officer's force can be illustrated.

It is important to note that the five (5) below-listed factors are ranked in a specific order of importance.  The most important factor, the factor with the greatest weight, is whether the person whom the officer is confronting is an imminent threat to officers or others.  The factor with the least importance, or the least weight, is whether the person the officer is confronting is attempting to escape seizure by flight, attempting to run away.  Thus, if an officer is confronted by a person who is a "10" for the first three (3) factors then there would be little doubt that the officer could use force at the "10" level (deadly force).  However, if the first three (3) factors were "0" or "1," and the last two (2) factors were "10" the officer would not be allowed to use a level "10" force.

The basic principle behind the graphical scale is to allow for thought providing discussion of use of force incidents.  It is important to note that the graphical scale is not based in the law.  It is merely a convention for training purposes.

Non-Seized Force Recipients:

Anytime a law enforcement officer uses force upon a person who is not a "seized" -- "free person" the federal analysis will be under the 14th Amendment's due process test.  The latest U.S. Supreme Court case providing the frame work for the 14th Amendment test is Sacramento v. Lewis ^[15] where (in a high-speed pursuit case) the Court held that "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation."

The 14th Amendment test PRIOR to Sacramento v. Lewis was  the Johnson v. Glick ^[16] test.  This test is a "subjective" test rather than the "objective" test of the Fourth Amendment.  The "subjective" test asks the following four (4) questions.

1.         What was the need for the officer's use of force upon the person?

2.         What was the relationship between the officer's need to use force and the amount of force that the officer used?

3.         What was the extent of the injuries inflicted on the person by the officer's use of force?

4.         (the "subjective" element of the test) Was the officer's use of force applied in good faith or maliciously and sadistically for the purpose of causing harm?

If the person is convicted and incarcerated the applicable standard is the "cruel and unusual punishment" standard of the Eighth Amendment to the United States Constitution.  The "cruel and unusual punishment" standard primarily focuses on the officer's intent.  In Whitley v. Albers ^[17] the United States Supreme Court held that only an "unnecessary and wanton infliction of pain" and "actions taken in bad faith and for no legitimate purpose" are a cruel and unusual punishment.  In Hudson v. McMillian ^[18] the Supreme Court  stated that the Whitley standard applies in both prison-riot and non-riot contexts.  Hudson also held that all excessive force claims under the Eight Amendment must show malice, sadism, and intent to cause harm.  Hudson also held that the 5th Circuit's "significant injury" requirement was improper under the Eighth A­mendment's "cruel and unusual punishment" analysis.