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Use-of-Force Definitions

© Copyright 1995 by LAAW International, Inc. All rights reserved.

  1. Reasonably believes:
    1. "`Reasonably believes' means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous."(1)
       
    2. "Reasonable man doctrine or standard. The standard which one must observe to avoid liability for negligence is the standard of the reasonable man under all the circumstances, including the foreseeability of harm to one such as the plaintiff."(2)
       
    3. "Reasonable belief: The facts or circumstances the officer knows, or should know, are such as to cause an ordinary and prudent person to act or think in a similar way under similar circumstances."(3)
       
  2. Harm:
    1. "Bodily harm":
      1. "Bodily harm" means physical pain or injury, illness, or any impairment of physical condition."(4)
         
      2. "`What Constitutes Bodily Harm' Bodily harm is any physical impairment of the condition of another's body, or physical pain or illness.(5)
         
    2. "Substantial Bodily Harm"
      1. "'Substantial bodily harm' means bodily injury that causes a laceration that requires stitches; any fracture of a bone; a burn; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.(6)
         
    3. "Serious Bodily Harm"
      1. "[A] jury should be instructed to use its common sense in deciding whether the injuries constitute serious bodily injury. Among the factors the jury should consider are whether the victim suffered extreme physical pain, protracted loss or impairment of the function of a bodily member, organ, or mental faculty, protracted unconsciousness, and significant or substantial internal damage (such as important broken bones).

        A substantial risk of death is a factor to be considered, but it need not be present to find serious bodily injury. The presence or absence of any of these factors is not to be determinative, since the jury must use its own judgment to assess the severity of the injuries."(7)

      1. "Meaning of `serious bodily harm.' The phrase `serious bodily harm' is used to describe a bodily harm the consequence of which is so grave or serious that it is regarded as differing in kind, and not merely in degree, from other bodily harm. A harm which creates a substantial risk of fatal consequences is a `serious bodily harm,' as is a harm the infliction of which constitutes the crime of mayhem(8). The permanent or protracted loss of the function of any important member or organ is also a `serious bodily harm.'"(9)
         
      2. "SERIOUS PHYSICAL INJURY: A bodily injury that creates a substantial risk of death; causes serious, permanent disfigurement; or results in long-term loss or impairment of the functioning of any bodily member or organ."(10)
         
      3. In Wisconsin, the term "serious bodily harm" is defined as " ... bodily injury which causes or contributes to the death of a human being or which creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." Wis. Stat. § 969.001 (2). [Chapter 969. Bail and Other Conditions of Release](11)
         
      4. "The permanent or protracted loss of the function of any important member or organ is also a `serious bodily harm.'"(12)
         
      5. Biting off of another's ear involved "serious physical injury" and thus involved the use of "deadly physical force" within statute providing that, with certain exceptions, person, who reasonably believes that another is using or about to use deadly physical force, may not use deadly physical force if he knows that he can with complete safety as to himself and other avoid the necessity of doing so by retreating.(13)
         
      6. Knee fracture by baton - An officer's "power chop" to the knee caused a fractured knee cap. The injury which showed that one-half of the patella had been shattered into small pieces and were too small to save and were surgically removed. The Doctor's "prognosis was that Mr. Fronk would never regain the full use of his right leg again."(14)
         
    1. "Great Bodily Harm"
      1. "The term `great bodily harm' as used in statute stating when an assault and battery becomes aggravated, is not susceptible of precise definition, but implies an injury of a graver and more serious character than ordinary battery. Herrington v. State, 352 P.2d 931, 933 (Okla. Cir.)."(15)
         
      2. "Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury."(16)
         
      3. Illinois Statute §7-8. Force likely to cause death or great bodily harm

§7-8. Force Likely to Cause Death or Great Bodily Harm. (a) Force which is likely to cause death or great bodily harm, within the meaning of Sections 7-5 and 7-6 includes:

(1) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and

(2) The firing of a firearm at a vehicle in which the person to be arrested is riding.

[Case: Police officer's gunshots fired at fleeing burglary suspect who was backing up car in officer's direction could not be justified under this paragraph as necessary to prevent death or great bodily harm to police officer or other person, where officer easily moved out of path of vehicle.(17)]

      1. Minn. Stat. § 609.02, Subd. 8. Great bodily harm. "'Great bodily harm' means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm."(18)
         
      2. "The loss of a tooth is a permanent loss of the function of a bodily member" and is therefore great bodily harm under Minn. Stat. § 609.221 - Great bodily harm.(19)
         
      3. Assault victim's injuries, including lacerated liver, laceration on head requiring stitches, bruises, other head injuries causing lapses of consciousness, and long scar running length of upper body, constituted "other serious bodily harm" for purposes of Minn. Stat. 609.02 subd. 8. Great bodily harm.(20)
         
      4. Assault victim who was "unconscious and on verge of shock ..., [who] had to be put in a `shock suit' for transfer to the hospital. She did not regain consciousness until the following day. She remained hospitalized for a week. She testified that 2 weeks after the attack she almost suffered a miscarriage and was prescribed bed rest. ... She testified that her left leg was numb for several weeks, she had dizziness and headaches until just before trial, and she still had a numbness in her teeth at the time of trial. At the very least, [the victim's] injuries would seem to fit within the phrase `other serious bodily harm'" under Minn. Stat. §609.02, subd. 8.(21)
         
  1. Force:

1.      "Constructive Force" "... Constructive force is anything which produces fear sufficient to suspend the power of resistance and prevent the free exercise of the will. Actual force is applied to the body, constructive force is by threatening words or gestures and operates on the mind."(22)
 

2.      "Deadly Force":

      1. Deadly force is force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force.(23)
         
      2. "Force likely or intended to cause death or great bodily harm; may be reasonable or unreasonable, depending on the circumstances."(24)
         
      3. "`Deadly Force' means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force. Model Penal Code §3.11(2)."(25)
         
      4. "In determining whether a particular means is `intended or likely to cause death or serious bodily harm,' the amount of force applied, the means or weapons by which it is applied, the method of applying it, and the circumstances under which it is applied are factors to be considered. Whether a particular means threatens serious bodily harm or death does not depend entirely upon the nature of the weapon with which it is inflicted. A weapon which as ordinarily used threatens death or serious bodily harm, and which is therefore generally described as a `deadly' weapon, may be used so as to threaten only a lesser harm; on the other hand, a weapon which as ordinarily used threatens only a trifling harm may be so used as to threaten serious harm or death. Nor does the question depend solely upon the amount of force exerted. The other's physical condition may be known to the actor to be such that he should realize that a slight blow which would do only a trivial harm to a normal person may well be fatal to the other. So too, the surrounding circumstances may be such that the actor should realize that the use of a force which would normally do little harm is likely to result in serious harm or death. Thus, although knocking another down is usually unlikely to cause serious bodily harm, it is obviously likely to do so if the other is known to be suffering from advance heart disease or is standing on the running board of a rapidly moving automobile."(26)
         
      5. "`Deadly Force' as used in this policy is defined as that force which is intended to cause death or grave injury or which creates some specified degree of risk that a reasonable and prudent person would consider likely to cause doeth or grave injury."(27)
         
      6. "Deadly force: Any use of force that is likely to cause death or serious bodily harm."(28)
         
      7. "[T]he two factors most relevant to the determination of whether the use of a particular law enforcement tool constitute deadly force [are]: the intent of the officer to inflict death or serious bodily harm, and the probability , known to the officer but regardless of the officer's intention, that the law enforcement tool, when employed to facilitate an arrest, creates a `substantial risk of causing death or serious bodily harm.'"(29)
         
      8. In Wisconsin, the term "deadly force" "is the use of any means or instrumentality intended to or likely to kill or cause great bodily harm." Wisconsin Law Enforcement Criminal Law Handbook, Revised 11/91, page 15.(30)
         
      9. Iowa Stat. § 704.2 Deadly force

The term "deadly force" means any of the following:

1. Force used for the purpose of causing serious injury.

2. Force which the actor knows or reasonably should know will create a strong probability that serious injury will result...

      1. "The use of deadly force [in making an arrest], likely to cause serious injury is a matter upon which the courts have not always agreed. There is not dispute that such force may be used to prevent the commission of a felony which threatens the life or safety of a human being or the burglary of a dwelling. As to other felonies, the tendency of the modern cases is to find the use of deadly force unreasonable in relation to the offense."(31)
         
    1. "Excessive force" "That amount of force which is beyond the need and circumstances of the particular event or which is not justified in the light of all the circumstances as in the case of deadly force to protect property as contrasted with protecting life."(32)
      1. Officer's use of excessive force in effectuating arrest invokes right of self-defense.(33)
         
    2. "Force" - "Power dynamically considered, that is, in motion or in action; constraining power, compulsion; strength directed to an end. Commonly the word occurs in such connections as to show that unlawful or wrongful action is meant; e.g. forcible entry. ..."(34)
       
    3. "Non-Deadly Force" - force which is less than deadly force.
      1. "Nondeadly force: Any use of force other than that which is considered deadly force."(35)
         
    4. Reasonable force:
      1. "Reasonable force" "That degree of force which is not excessive and is appropriate in protecting oneself or one's property. When such force is used, a person is justified and is not criminally liable, nor is he liable in tort."(36)
         
      2. Iowa Stat. § 704.1 Reasonable force - "Reasonable force" is force which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss, and no more, except that the use of deadly force against another is reasonable only to resist a like force or threat...
         
    5. "Unlawful force" "Force, including confinement, which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort, or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or metal capacity, duress; youth; or diplomatic status) not amounting to a privilege to use the force. Assent constitutes consent, within the meaning of this Section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm. Model Penal Code § 3.11(1)."(37)
       
    6. "Use of Force" - "The words `use of force' are used to describe conduct which invades any of another's interests of personality and thus is, unless privileged, a `battery,' `assault,' or `false imprisonment.'"(38)
       
  1. Weapons:
    1. "Deadly or Dangerous Weapon" - Defined.

The phrase "deadly or dangerous weapon" means any instrument or device capable of inflicting serious bodily injury or causing death of a person.

Both the physical capabilities of the object used and the manner in which the object is used may be considered by the jury in determining whether the object is a "deadly or dangerous weapon."(39)

    1. "Dangerous weapon" - "Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon, as defined in [Wisconsin Statute] §941.295(4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm."(40)
       
    2. Minn. Stat. § 609.02, Subd. 6. Dangerous Weapon. "'Dangerous weapon' means ... any device designed as a weapon and capable of producing death or great bodily harm."
       
    3. "Deadly weapon":
      1. "Any firearm, or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury. Model Penal Code §210.0."

Such weapons or instruments as are made and designed for offensive or defensive purposes, or for the destruction of life or the infliction of injury. One which, from the manner used, is calculated or likely to produce death or serious bodily injury. Austin v. State, Fla.App. 336 So.2d 480, 481 [D.C.App. Fla. 3rd Cir. 1976]."(41)

      1. "Deadly weapon per se" - "A weapon which of itself is deadly or one which would ordinarily result in death by its use; e.g. gun. Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558, 561 [Texas Court of Criminal Appeals 1948]."(42)
         
      2. Test for determining whether something is a "deadly weapon" is whether it is capable of inflicting death.(43)
         
  1. Lethality:

1.      "Lethal" - "Deadly, mortal, fatal. Vaughn v. Kansas City Gas Co., 236 Mo.App. 669, 159 S.W.2d 690, 698 [1942]."(44)
 

2.      "Low-Lethality" - force which is not intended to be lethal, but nevertheless may result in death.

  1. Wisconsin Statute §939.22. Words and phrases defined, number (32). 
  2. Black's Law Dictionary, 5th Edition, page 1138. 
  3. CALEA Standards, Chapter 1, Glossary, page 1-4, March 1991, revision. 
  4. Wisconsin Statute §939.22. Words and phrases defined, number (4). 
  5. Restatement of Torts Second, §15. 
  6. Wisconsin Statute §939.22. Words and phrases defined, number (38). 
  7. United States v. Johnson, 637 F.2d 1224, 1246 (9th Cir. 1980). 
  8. "Mayhem at common law required a type of injury which permanently rendered the victim less able to fight offensively or defensively; it might be accomplished either by the removal of (dismemberment), or by the disablement of, some bodily member useful in fighting. Today, by statute, permanent disfigurement has been added; and as to dismemberment and disablement, there is no longer a requirement that the member have military significance. See also Maim." Black's Law Dictionary, 5th Edition, page 883.

    "Maim. To cripple or mutilate in any way. To inflict upon a person any injury which deprives him of the use of any limb or member of the body, or renders him lame or defective in bodily vigor. To inflict bodily injury; to seriously wound or disfigure; disable. State v. Thomas, 157 Kan. 526, 142 P.2d 692, 693; Phillips v. State, 140 Tex.Cr.R. 84, 143 S.W.2d 591, 592. ..." Black's Law Dictionary, 5th Edition, page 858. 
  9. Restatement of Torts Second, Section §63(b). 
  10. CALEA Standards, Chapter 1, Glossary, page 1-4, March 1991, revision. 
  11. Also see WIS JI-CRIMINAL 914 GREAT BODILY HARM - § 939.22(14). 
  12. Restatement, Second, Torts, § 63, at 99; as adopted by the Wisconsin Supreme Court in Wirsing v. Krzeminski 61 Wis.2d 513, 213 N.W.2d 37 (Wis. 1973). 
  13. People v. Dingley, 378 N.Y.S.2d, 50 A.D.2d 361 (N.Y. Sup. Ct. App. Div. 3d Dept. 1976). 
  14. Fronk v. Meager 417 N.W.2d 807, 809 (N.D. 1987). 
  15. Black's Law Dictionary, 5th Edition, page 631. 
  16. Wisconsin Statute §939.22. Words and phrases defined, number (14). Also see WIS JI-CRIMINAL 914 GREAT BODILY HARM - § 939.22(14). In Wisconsin, "great bodily harm" and "serious bodily harm" are synonymous terms. See WIS JI-CRIMINAL 914 Great Bodily Harm - § 939.22(14), Rel. No. 21-1/89. 
  17. Klein v. Ryan, 847 F.2d 368 (7th Cir. 1988) - (Illinois). 
  18. Comment by Maynard E. Pirsig - "... The Wisconsin definition of 'great bodily harm' from which subd. 8, above was taken, was construed in State v. Bronston, 7 Wis.2d 627, 633, 97 N.W.2d 504, modified, rehearing denied, 98 N.W.2d 468, ..." Minn. Stat. §609.02. 
  19. State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984). 
  20. State v. Anderson, 370 N.W.2d 703 (Minn. App. 1985). 
  21. State v. Jones, 266 N.W.2d 706, 710 (Minn. 1978). 
  22. Black's Law Dictionary, 5th Edition, page 284. 
  23. See generally - Tennessee v. Garner, 471 U.S. 1, 85 L.Ed.2d 1, 6 105 S.Ct. 1694, 1698 (1985); Pruitt v. Montgomery, 771 F.2d 1475, 1479 n. 10 (11th Cir. 1985); Model Penal Code § 3.11(2) (1962); Mattis v. Schuarr, 547 F.2d 1007, 1009 n. 2 (8th Cir. 1976)(en banc). 
  24. Black's Law Dictionary, 5th Edition, page 359. 
  25. Black's Law Dictionary, 5th Edition, page 580 - under heading "force." 
  26. Restatement of Torts Second, §63(d). 
  27. Matulia, Kenneth J., A Balance of Forces, Model Deadly Force Policy and Procedure, (Second Edition), 1985, page 68, Defining Deadly Force. 
  28. IACP Model Policy - Use of Force, dated January 31, 1990. 
  29. Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988). 
  30. Under the Model Penal Code "`deadly force' means force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily injury." Model Penal Code §3.11(2), page 157. "Section 3.11 supplies the definitions of three terms - "unlawful force," "deadly force," and "dwelling" - as used in [the Model Penal Code] Article 3." Model Penal Code §3.11 Explanatory Note, page 157. 
  31. Prosser and Keaton on Torts, Fifth Edition, page 155. 
  32. Black's Law Dictionary, 5th Edition, page 504. 
  33. People v. Bailey, 439 N.E.2d 4, 64 Ill.Dec. 75, 108 Ill.App.3d 391 (Ill. 1982). 
  34. Black's Law Dictionary, 5th Edition, page 580. 
  35. IACP - Model Policy, Use of Force, dated January 31, 1990. 
  36. Black's Law Dictionary, 5th Edition, page 1138. 
  37. Black's Law Dictionary, 5th Edition, page 580, under heading "force." 
  38. Restatement of Torts Second, §117. 
  39. Model Penal Code, section 23.07. 
  40. Wisconsin Statute §939.22. Words and phrases defined, number (10). Also see WIS JI-CRIMINAL 910 DANGEROUS WEAPON - § 939.22(10). 
  41. Black's Law Dictionary, 5th Edition, page 359. 
  42. Black's Law Dictionary, 5th Edition, page 359. 
  43. State v. Marshall, 61 Ohio App.2d 84, 15 O.O.3d 93, 399 N.E.2d 112, 113 (Ohio App. 1978). 
  44. Black's Law Dictionary, 5th Edition, page 813.