Law of Police Use of Force Research Paper

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Perhaps no topic in policing has generated more debate than the use of force. In news coverage, as well as in movies and television dramas, police officers seem to confront violent offenders in lethal melee on a constant basis. Sometimes the stories concern allegations of excessive force or misconduct: the beating of Rodney King, the shooting of Amadou Diallo, the sexual assault of Abner Louima, the deadly FBI raid in Waco, the sniper fire in Ruby Ridge, and, most recently, the alleged rough treatment of Occupy Wall Street protestors. From these examples, people may extrapolate not only the incidence of official violence but also the law governing the use of force. This research paper provides some background on the police use of force and a critical summary of the relevant law. The question remains as to whether the jurisprudence is sufficiently clear, consistent, and coherent in order to guide law enforcement, protect individual rights, and inform the citizenry of the legal boundaries.

Force, Police, And The Law

Definitions, Contexts, And Types Of Force

For present purposes, the use of force may be defined as “any physical strike or instrumental contact with a person; any intentional attempted physical strike or instrumental contact that does not take effect; or any significant physical contact that restricts the movement of a person” (IACP, 116). Although some works on the topic provide a transnational perspective (Chevigny, 145–248), this research paper focuses solely on the law of police use of force in the United States. The term police refers to any government agency empowered to enforce the criminal law of a given jurisdiction, including police departments, sheriff’s offices, highway patrol, and the Federal Bureau of Investigation. The law of police use of force comprises the legal justifications and limitations for the use of force, as well as the remedies for the use of excessive force. The resulting framework addresses the issues of when the police may use force and what types of force may be used in terms of the amount of force and the method employed.

In general, the police use of force may be justified to prevent the commission of a crime, to implement the criminal justice process, or to preserve public order. Many jurisdictions and the American Law Institute’s Model Penal Code specifically provide for the use of force in law enforcement (MPC, } 3.07). In certain contexts delineated by statute, police officers are said to possess a privilege to use force. As a constitutional matter, the police use of force is typically analyzed as a seizure of persons subject to the constraints of the Fourth Amendment. Over the years, the US Supreme Court has defined the term seizure in various ways. As used here, a seizure occurs when official force is intentionally applied to terminate or restrain an individual’s freedom of movement (Brendlin v. California, 551 U.S. 249, 254 (2007)).

The rubric of crime prevention comprises the police use of force to protect persons and property. For instance, the US Supreme Court has held that a police officer may temporarily detain an individual based on a reasonable suspicion that “criminal activity may be afoot” (Terry v. Ohio, 392 U.S. 1, 50 (1968)). If the officer also reasonably suspects that the individual is armed and dangerous, he may conduct a frisk for weapons to ensure his own safety and the security of others. Recently, the Supreme Court upheld the use of force to detain occupants during a home search due to “the risk of harm to both officers and occupants” (Muehler v. Mena, 544 U.S. 93, 100 (2005)).

The use of force to effect an arrest or otherwise seize a suspected criminal is the most obvious example of force employed to implement the legal process. Law enforcement may conduct an arrest – that is, taking an individual into custody to answer for a criminal charge – based on “probable cause,” which is defined as sufficient facts and circumstances to warrant an officer of reasonable caution to believe that a crime has been committed and the person to be arrested committed it (Brinegar v. United States, 338 U.S. 160, 175–76 (1949)). Likewise, the police may use force to prevent the escape of a suspected criminal or to prevent the destruction of evidence. As for preserving public order, the paradigmatic example is the police use of force to suppress a riot after the rioters have been ordered to disperse and warned that force will be used if they do not obey.

Traditionally, the police use of force has been divided into two categories: deadly force (or lethal force) and non-deadly force (or nonlethal or less-lethal force). Deadly force is commonly defined as force that is likely to cause death or serious physical injury. Most prominently, this category encompasses discharging firearms at other individuals. But it also includes, for instance, the use of a police cruiser against another occupied vehicle, as when law enforcement performs a “Precision Intervention Technique” (PIT) maneuver – hitting another vehicle with the goal of causing it to spin to a stop. Nondeadly force comprises the use of all other types of force, including physical contact (e.g., tackling and punching), restraining devices (e.g., handcuffs), impact weapons (e.g., batons and flashlights), chemical weapons (e.g., pepper spray and mace), electronic weapons (e.g., stun guns), kinetic energy weapons (e.g., beanbag guns), explosive devices (e.g., flash-bang grenades), and police dogs.

Constitutional Limitations On Police Use Of Force

At common law, government agents and private citizens were allowed to use both lethal and nonlethal force to apprehend a felon or prevent the commission of a felony. Nonlethal force could be used to prevent the commission of a misdemeanor amounting to a breach of the peace, but force could not be used to prevent the commission of any other misdemeanor.

These standards were carried over to the American colonies and subsequently adopted in judicial opinions or codified by statute in the post-revolutionary states. Certainly, the common-law rules made some sense in an era when all felonies were punishable by death and private citizens often served as the community’s law enforcers, dutifully answering the “hue and cry” to help apprehend criminals (Perkins & Boyce, } 10.1).

In modern times, however, this justification was undermined by the near monopoly of force exercised by the police, the proliferation of felony offenses in penal codes, and the reservation of capital punishment for the crime of murder. Nonetheless, some states maintained the so-called “fleeing felon” rule of the common law, which allowed the police to use whatever force was necessary, including deadly force, to prevent the escape of a felon. In its 1985 decision in Tennessee v. Garner, the US Supreme Court found that applications of this rule could violate the Fourth Amendment’s ban on unreasonable seizures. “It is not better that all felony suspects die than that they escape,” the Court opined, declaring that a “police officer may not seize an unarmed, nondangerous suspect by shooting him dead” (Tennessee v. Garner, 471 U.S. 1, 11 (1985)). The Garner Court then announced a constitutional standard for the use of deadly force:

“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” (ibid., 11–12)

Subsequent decisions have both expanded upon Garner and limited its categorical prohibition on deadly force to the basic fact pattern presented by the case. In 1989, the Supreme Court in Graham v. Connor made clear that excessive force claims arising from arrests, investigatory stops, and other seizures are properly characterized as invocations of the Fourth Amendment. Other constitutional provisions apply to individuals already in lawful custody, with pretrial detainees and convicted prisoners protected from excessive force by the Due Process Clause and the Eighth Amendment, respectively. Most importantly, the Graham Court held that all Fourth Amendment claims of excessive force, both deadly and non-deadly, should be evaluated for “reasonableness.” This standard balances the nature and quality of the police intrusion against the governmental interests at stake, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight” (Graham v. Connor, 490 U.S. 386, 396 (1989)).

The Graham Court emphasized that the evaluation must not employ the “20/20 vision of hindsight.” Instead, the proper perspective is that of a reasonable officer who is on the scene and may be “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” (ibid., 396–97). Moreover, the inquiry is one of “objective reasonableness,” that is, whether the use of force was reasonable in light of the facts and circumstances confronting the police officer but without regard to his underlying intent or motive. An officer’s corrupt intentions, even those that are “malicious and sadistic,” do not transform an objectively reasonable use of force into a Fourth Amendment violation, just as an officer’s good intentions do not render constitutional an objectively unreasonable use of force.

Most recently, the Supreme Court’s decision in Scott v. Harris considered a specific fact pattern involving the use of police vehicles to seize a fleeing motorist. Although the use of a police cruiser to ram the motorist’s vehicle did amount to deadly force, the Court rejected the idea that its earlier decision in Garner established “a magical on/off switch” (Scott v. Harris, 550 U.S. 372, 382 (2007)). The ultimate test is not whether the police used deadly force but whether the use of such force was objectively reasonable under the circumstances. In terms of the danger to others, the present case was quite unlike the escape on foot of an unarmed felony suspect in Garner. Pointing to a videotape of the chase, the Scott Court weighed the risks of the PIT maneuver versus the fleeing motorist’s endangerment of pedestrians, other civilian motorists, and officers involved in the chase. According to the Court, the test of reasonableness can take into consideration the number of people imperiled by the fleeing motorist, as well as the relative culpability of that motorist versus those he placed in harm’s way.

Means Of Evaluating The Police Use Of Force

In theory, the police use of force might be assessed through a number of legal paths. For instance, statutory schemes and departmental regulations on the use of force might be challenged on their face as constitutionally unreasonable. However, this option is largely foreclosed by legal and practical barriers to bringing facial challenges under the Fourth Amendment (Sibron v. New York, 392 U.S. 40, 59–60 (1968)), which might explain the persistence of statutes of dubious constitutionality in light of Garner (McCauley and Claus, 3). Moreover, the internal rules of an executive agency are often non-justiciable (United States v. Caceres, 440 U.S. 741 (1979)).

Another option would be to evaluate the police use of force in criminal proceedings. Defendants claiming to be victims of excessive force might seek, inter alia, the suppression of incriminating evidence at trial. But the courts have refused to apply the exclusionary rule absent a causal connection between the excessive force alleged by the defendant and the evidence he seeks to suppress (United States v. Watson, 558 F.3d 701 (7th Cir. 2009)). State prosecutors can bring charges against police officers whose use of force constitutes a criminal offense, and federal prosecutors can indict officers for uses of force that amount to deprivations of constitutional rights (18 U.S.C. } 242). Although beyond the scope of this research paper, various legal requirements and practical impediments limit the viability of criminal prosecutions as a method to assess the use of force and check police abuses (Harris, 55–64).

Instead, civil suits have proven to be the most feasible means to contest the use of force. Purported victims of excessive force can bring state tort law actions against offending police officers, although claims based on simple negligence may be barred by sovereign immunity for the discretionary acts of government officials made in the course of duty. Alternatively, a 1994 federal law empowers the US Department of Justice to investigate and bring suit against police departments that have a “pattern or practice” of conduct violating the civil rights of people within their jurisdictions (42 U.S.C. } 14141). Since its enactment, the law has been used to investigate dozens of police departments, including those exhibiting patterns of excessive force. Typically, the cases result in a settlement where the department in question agrees to implement a slate of reforms. However, the law is not designed to investigate a specific case or to institute a civil action for a particular use of force.

Today, most use of force litigation is brought in federal court under a provision of the Civil Rights Act of 1871 (42 U.S.C. } 1983) which imposes liability on persons who, while acting under color of law, deprive others of their civil rights. Section 1983 itself is not a source of rights but instead provides a cause of action to vindicate established federal rights. As discussed, the relevant right in excessive force cases is the Fourth Amendment prohibition against unreasonable seizures. Although } 1983 only applies to state officials, the Supreme Court has ruled that an implied cause of action exists against federal officials for civil rights violations (Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)).

Before trial, } 1983 cases can be stymied, or at least complicated, by the threshold issue of qualified immunity. This doctrine shields government officials from liability so long as his or her conduct does not violate clearly established rights that would have been known to a reasonable officer. The US Supreme Court has held that the first step in qualified immunity analysis is determining whether the police officer’s conduct violated a constitutional right. At times, “a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established,” which, in turn, “serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable” (Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Over the past half century, thousands of federal lawsuits have raised claims of excessive force under } 1983, thereby providing the principal means for shaping the law of police use of force (Harmon, 1126). Indeed, Garner, Graham, and Scott were all cases brought under this provision. A number of reasons help explain the dominance } 1983 litigation, including the potential for successful plaintiffs to obtain attorney fees and costs (which, somewhat ironically, can be greater than the damages awarded to plaintiffs), as well as the fact that federal cases tend to come to trial much faster than state cases.

Controversies

The Supreme Court opinions on the use of force are often “cast at a high level of generality” and “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application” (Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). Or as one federal judge put it, “There is no such thing as a per se violation of the Fourth Amendment” (Cox v. Treadway, 75 F.3d 230, 241 (6th Cir. 1996) (Ryan, J., concurring in part)). However, the idea that there are no per se rules in this area is belied by the fact that Garner did, in fact, adopt a bright-line rule regarding the use of lethal force. The same can be said of Scott, despite claims to the contrary in the majority opinion. Specifically, the Scott Court delivered the following conclusion: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death” (Scott, 550 U.S. at 386). This rule may be “sensible,” as the Scott Court believed, but it certainly appears to be “absolute” (ibid., 389 (Breyer, J., concurring)). Objections to a per se approach might be tempered by reading Scott as creating a special rule regarding deadly force, as some lower court opinions have done with Garner (Quintanilla v. City of Downey, 84 F.3d 353, 357 (9th Cir.1996)). Yet the distinction between deadly and non-deadly force is not always clear. For instance, striking an individual in the head with a baton or other hard object may properly be viewed as deadly force, and some police departments classify the use of chokeholds and the firing of warning shots as deadly force. Moreover, the use of ostensibly non-deadly instruments can still produce lethal consequences, such as when a flash-bang grenade – an explosive device that creates a disorienting light and sound – ignites flammable accelerants contained in a building. Rather than relying solely on the Supreme Court’s rough dichotomy between deadly and non-deadly force, most law enforcement agencies employ far more discerning methodologies to guide their officers. For instance, use-of-force continuums incorporate multiple levels of force, which typically begin with officer presence and verbal communication and end with the use of deadly force.

The totality of the circumstances approach espoused by Graham presents its own difficulties. As then-Judge (now-Stanford Law Professor) Michael McConnell opined: “[B]ecause excessive force jurisprudence requires an all-things considered inquiry with ‘careful attention to the facts and circumstances of each particular case,’ there will almost never be a previously published opinion involving exactly the same circumstances” (Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (quoting Graham)). To reiterate, the Supreme Court in Graham listed three non-exclusive factors that may be relevant when considering the objective reasonableness of police use of force: the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. In Scott, the Court referenced the number of people endangered by the suspect and the relative culpability of that suspect versus those he placed in harm’s way. The lower courts have cited additional considerations in assessing reasonableness, including:

the type and amount of force used by the police
the extent of injuries inflicted upon the suspect
the amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared necessary
the relative physical characteristics of the officer and the suspect (e.g., height, weight, age, gender, and strength)
the nature of the arrest charges
the availability of alternative methods of capturing or subduing the suspect
whether a warrant was used
whether the suspect resisted or was armed
whether more than one suspect or officer was involved
whether a warning was given before the use of force
whether the suspect was sober
whether it was apparent that the suspect was emotionally disturbed
whether the officer harbored ill will toward the suspect

Any number of other circumstances might be added to this list, either explicitly or by use of a catch-all phrase, such as “whether other dangerous or exigent circumstances existed at the time of the arrest” (Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994)). Without constraints on the relevant circumstances or at least some guidance as to the hierarchy or relative weight of factors, the reasonableness standard can have the semblance of a Rorschach test. Along these lines, Professor Rachel Harmon has argued that “the reasoning in these cases is ad hoc, often inconsistent, and sometimes ill-considered,” meaning that “the outcomes of future cases are largely unpredictable, even by the Supreme Court’s own measures” (Harmon, 1123).

As noted above, some cases have taken into consideration the type and amount of force used and the availability of alternative methods of capturing or subduing a suspect. Other cases, however, have held that police officers need not use the least intrusive means of responding to an exigent situation (Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994)). Likewise, officers are not required to use, and their departments are not required to provide, particular types of weapons (Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)). And as a matter of law, officers might not have a duty to retreat before using deadly force (Penley v. Eslinger, 605 F.3d 843, 855 (11th Cir. 2010)). Although several cases emphasized the communication of warnings before using force, other cases have found it objectively reasonable for an officer to forego a warning (Colston v. Barnhart, 102 F.3d 85 (3d Cir. 1997)). More generally, the police are not required to make any announcement when carrying out an arrest in a public place (Catlin v. City of Wheaton, 574 F.3d 361 (7th Cir. 2009)).

Another subject of debate in excessive force cases relates to the level of force used and the kind of injury inflicted. In passing, the Graham Court stated that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment” (Graham v. Connor, 490 U.S. 386, 397 (1989)). Along these lines, some courts have held that a Fourth Amendment violation only occurs when the police use more than a de minimis amount of force (Cook v. City of Bella Villa, 582 F.3d 840 (5th Cir. 2009)) and that the suspect must suffer an actual or non-de minimis injury (Fisher v. City of Las Cruces, 584 F.3d 888 (10th Cir. 2009)). But other courts have held that excessive force claims do not require more than a de minimis injury ((Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011)), which is consistent with the Supreme Court’s jurisprudence on inmate claims of excessive force under the Eighth Amendment (Wilkins v. Gaddy, 130 S. Ct. 1175 (2010)).

Additional areas of tension in the case law include the significance of verbal or physical threats by the police, particularly in the absence of physical injury; the pertinence of an officer’s ill will toward a suspect in a regime premised on objective reasonableness; and the relevance of department policies given that a violation of such policies is not a basis for an excessive force claim. But perhaps the most glaring inconsistency in the jurisprudence, and the clearest split among the federal circuit courts, concerns the appropriate time frame for analyzing the reasonableness of police use of force (Avery, 267–89). Some decisions have focused on the Supreme Court’s language of “immediate flight,” “on the scene,” “reasonableness at the moment,” and “split-second judgments,” all of which connote short time spans and temporal proximity (Graham v. Connor, 490 U.S. 386, 396 (1989)).

With these phrases in mind, the Second, Fourth, Fifth, Eighth, and Eleventh Circuits have limited the assessment to those circumstances existing at the time of the seizure. For instance, the Second Circuit concluded that an officer’s

“actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force. The reasonableness inquiry depends only upon the officer’s knowledge of circumstances immediately prior to and at the moment that he made the splitsecond decision to employ deadly force.” (Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996))

By contrast, the First, Third, Ninth, and Tenth Circuits have held that proper analysis of excessive force claims must take into consideration the actions leading up to a seizure. In rejecting decisions espousing a narrow time frame, the Third Circuit could

“not see how these cases can reconcile the Supreme Court’s rule requiring examination of the ‘totality of the circumstances’ with a rigid rule that excludes all context and causes prior to the moment the seizure is finally accomplished. ‘Totality’ is an encompassing word. It implies that reasonableness should be sensitive to all of the factors bearing on the officer’s use of force.” (Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999))

Still another approach has been employed by the Sixth and Seventh Circuits, which divide use of force incidents into separate, sequential parts for analysis. As explained by the Seventh Circuit, “we carve up the incident into segments and judge each on its own terms to see if the officer was reasonable at each stage,” but without returning to prior segments to reconsider the event “in light of hindsight” (Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994)).

Conclusion

Given the above, it is not surprising that scholars have criticized the current law of police use of force. Professor Harmon has described the Supreme Court’s jurisprudence as “profoundly impoverished,” with the “paucity of reasoned analysis in this area” undermining “the evolution of a principled case law defining clear requirements for the legitimate use of police force” (Harmon, 1119, 1183). Another commentator claims that “[a]s brutality remains a problem and law enforcement challenges continue to grow, there has never been a better time to add flesh to the skeletal understandings of force found in the text of the Fourth Amendment” (Note, 2009, 1721–22). Arguably, the problem is not just the quantity of law on the use of force or the appropriate choice (or mix) of bright-line rules and flexible standards. Rather, there appears to be a disconnect between the case law on the one hand and people’s perceptions on the other.

Consider, for example, the “added wrinkle” in the Supreme Court’s decision in Scott v. Harris: “existence in the record of a videotape capturing the events in question” (Scott v. Harris, 550 U.S. 372, 378 (2007)). Based on its review of the tape, the Scott Court concluded that the fleeing motorist’s “version of events is so utterly discredited by the record that no reasonable jury could have believed him,” deriding the lower courts for having “relied on such visible fiction” when “it should have viewed the facts in the light depicted by the videotape” (ibid., 380–81). In dissent, Justice John Paul Stevens believed that “the tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue” (ibid., 389–90 (Stevens, J., dissenting)). Along the way, Justice Stevens panned “eight of the jurors on this Court” for reaching a different verdict than the lower court judges, “who are surely more familiar with the hazards of driving on Georgia roads than we are” (ibid., 390). Nonetheless, the majority was “happy to allow the videotape to speak for itself” (ibid., 378 n.5 (majority opinion)). Since Scott, the lower courts appear to have taken the cue, relying on videotapes in ruling on summary judgment motions in use of force cases (Dunn v. Matatall, 549 F.3d 348 (6th Cir. 2008)).

As it turns out, however, “what [a videotape] says depends on to whom it is speaking,” as demonstrated by an empirical study conducted by Professors Dan Kahan, David Hoffman, and Donald Braman. The video in Scott was shown to a diverse sample of more than 1,300 Americans, who were then asked to describe what they saw and to provide their opinions on key issues identified by the Supreme Court. The authors found that a substantial majority of study participants had viewpoints consistent with those expressed by the eight-member majority of the Supreme Court. This perspective was hardly uniform, however. “Whites and African Americans, high-wage earners and low-wage earners, Northeasterners and Southerners and Westerners, liberals and conservatives, Republicans and Democrats – all varied significantly in their perceptions of the risk that [the fleeing motorist] posed, of the risk the police created by deciding to pursue him, and of the need to use deadly force against [the motorist] in the interest of reducing public risk” (Kahan et al., 903). As such, the vice of Scott was not necessarily the outcome but the way in which the Court reached it, namely, by asserting that no reasonable jury could have come to a different conclusion regarding the reasonableness of the police use of force.

The authors suggested several alternative rationales – for instance, the need for uniform, predictable rules – by which the Scott Court could have rendered the same judgment without dismissing other coherent viewpoints as unreasonable. To these suggestions, one might add the larger project identified by Professor Harmon: the need for “an accessible and transparent framework that the public may use to analyze highly publicized uses of police force” (Harmon, 1183). It may well be true that only a small percentage of police-citizen contacts involve the use of physical force (Adams et al., 3). But as mentioned at the beginning of this research paper, the use of force tends to be understood through the lens of mass-media portrayals, which can distort popular perceptions or at least focus attention on extreme circumstances, at times fostering distrust of the police and disrespect for the legal system (Luna, 1112–19). Finding the means to educate the citizenry about the jurisprudence of force and to inform legal decision-makers about perceptions of police-citizen interactions might provide the first step toward an understanding of the police use of force that goes beyond the “Hollywoodstyle car chase of the most frightening sort” (Scott v. Harris, 550 U.S. 372, 379 (2007)).

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