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Use of Force and Law Enforcement

TASA ID: 4252

Law enforcement personnel are often faced with difficult decisions, perhaps, none more difficult than using force. The primary objective for law enforcement when engaged in a use-of-force incident is to restrain and control while utilizing an “objectively reasonable” amount of force. The often asked, debated, and second-guessed law enforcement question is how much force is necessary, required, or acceptable? The following terms require discussion:

Excessive use of force: This term can be described as using more force than a reasonable person would deem reasonable and necessary.

Unnecessary or unreasonable amount of force: This term refers to law enforcement personnel who utilize force where a reasonably prudent and well trained police officer would not. If law enforcement personnel are accused of utilizing too much force, accountability for the incident(s) will include, but not be limited to, possible discipline for violating department policy and standards, agency rules and regulations violations, internal investigation complaints, possible criminal charges, and civil lawsuits.
Today, many UOF encounters involving LEOs and the public are captured on video from police cruisers, body cameras, cell phones, or other electronic devices. These encounters often look completely different from the reality of the event and do not tell the entire story.  One’s perceptions and interpretations, lack of knowledge, understanding of the law, department policy, the constitutional standard and relevant standards, biases, subsequent rush to judgment, media pressure, political mismanagement, administrative incompetence, outside influences, and over reactions, as well as other factors will determine one’s interpretation of the event.

A myriad of considerations underpin reasonably objective use of force.  Circumstances; application of force, force options; training; experience; department policy; attorney general guidelines and the constitutional standard set forward in Graham v. Connor, 1989; along with other relevant factors are taken into account when evaluating a use-of –force incident.  Attempting to physically control an unwilling, uncooperative individual who is actively resisting arrest is one of the most dangerous, difficult, and stressful situations faced by law enforcement. 

Training (or lack thereof), skill level, physical conditioning, fatigue, strength, physical and emotional control, mental attitude, decision-making skills, tactical communication, roadway conditions, time of day, uniform restrictions, equipment, knowledge of the law, and other factors including but not limited to the number of officers present all play vital roles during in determining the objective reasonable use-of-force (UOF). Each UOF incident is independent of one another.  Each should be considered as a unique, independent set of circumstances.  However, this often is not the case.  

The UOF standard was set by the Supreme Court case Graham v. Connor, 1989. The court advised the lower courts to ask three questions regarding use of force:

  • What was the severity of the crime law enforcement believed the subject committed?
  • Did the subject present an immediate threat to law enforcement or the general public?
  • Did the subject resist arrest or attempt to escape?

Additional criteria, as noted previously, are also considered when evaluating the Graham v. Connor standard and its implementation.

Under the Constitution’s Fourth Amendment, law enforcement officers are permitted to utilize what is known as “objectively reasonable force.” This standard applies when a law enforcement officer (LEO) seizes a free person. Under this standard, LEOs may choose from their force options and employ force that is objectively reasonable. Force can and should be used by LEOs based on the suspect’s actions, capabilities, and under the totality of the circumstances.

Law enforcement personnel must realize and understand that during any UOF confrontation it is the subject who chooses to resist a LEO’s authority and control. As a result, the subject prolongs the confrontation and in most instances determines when UOF will cease by freely choosing to stop resisting and comply. Until the subject submits to the LEO’s control, the application of force will not end; however, the force utilized must be objectively reasonable. LEOs must also realize that good, verbal, tactical communication skills, well-written and detailed reports, good judgment, sound decisions, knowledge of the law, department policy, the Constitutional Standard, and proper documentation are all essential factors when assessing an UOF incident. It is imperative that law enforcement realize that in most instances the subject is in control of many aspects regarding UOF:

  • The majority of the time, the subject initiates the UOF incident.
  • The subject determines when force will cease (stop resisting and comply).  Note: This is where many LEOs get into trouble by failing to de-escalate and/or terminate their UOF.

Once the subject stops resisting and complies, LEOs must restrain and control ratcheting down (de-escalate) any use of force to possibly none at all other than applying restraints.  When a subject is restrained and controlled with handcuffs, leg shackles, or both, LEOs must realize that the use of force incident is over and force must be terminated. It is unacceptable, unauthorized, and against accepted police policies, practices, procedures, and relevant standards to strike a subject under these circumstances. 

Use-of-Force Standard: Objective Reasonableness 

The reasonableness of LEOs use of force is partially based on the circumstances known by the LEO at the exact moment force was used.  The standard of objective reasonableness only applies to the use of force upon a “seized free person.” Certain factors dictate the reasonableness standard in order of priority: 
  • Imminent threat to LEO(s) or others: Is the suspect an imminent threat to law enforcement or others
  • Actively resisting arrest: Is the subject actively resisting arrest and if so how?  What are the subject’s actions, what threat does the subject present, and how does it make you feel. Law enforcement officers can choose from within their “force options” as long as it is deemed to be objectively reasonable.
  • Circumstances are tense, uncertain, and rapidly changing: If so, law enforcement may escalate and justify their level of force by choosing within their force options
  • Severity of crime: The more severe the crime committed by the subject an increase of force can be justified.
  • Attempting to Flee: Is the subject attempting to avoid arrest by fleeing?

Summary of Force Options

  • Constructive: The use of a law enforcement officer’s authority to exert control over the suspect. Command presence, uniform and voice inflection.
  • Physical: Physical bodily contact with the suspect, normally utilized to make an arrest or meet another law enforcement objective. Hands, fists and feet.
  • Mechanical: Device that employs less than deadly force. Baton, oleoresin capsicum spray, flashlight, and canine.
  • Enhanced mechanical: Conductive Electronic Device (CED). Depending on a department’s policy and state-authorized guidelines this option is normally between mechanical and deadly force.
  • Deadly: Force used in an encounter in which law enforcement personnel reasonably believe there is a substantial risk of causing death or serious bodily harm.

Severe Threat Level and Factors

The more severe the threat posed to law enforcement officers, the more force they can justify. Let us look at some of these factors:

  • Totality of circumstances. The objective reasonable use of force implemented by law enforcement will be judged on the “totality of circumstances” known by the officer at the time force was used. 
  • Intrusiveness. Law Enforcement use of force does not have to be the least intrusive option available. Choosing from any of their “force options” (objectively reasonable).
  • Objectivity. Refers to what others would logically believe or conclude. Would a reasonably prudent and well trained law enforcement officer who knows the law believe that what the officer did was acceptable?
  • Moment of use. Law enforcement’s use of force will be judged at the moment force is used.
  • Constitutional standard. The constitutional standard is the Fourth Amendment, Graham v. Connor, 1989. This standard states: “The right of the people to be secure, in their persons, homes, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.


About the Author: My opinions concerning use of force (UOF) are based on the Constitutional Standard, agency standards, police policies and procedures, guidelines, rules, and regulations, Attorney General’s Guidelines, training and experience, as well as, my 25 years of service with the New Jersey State Police.  I was assigned to the Training Bureau in positions including lead academy instructor and assistant unit head for the Firearms and Self-Defense Training Unit; use of force instructor; and lead defensive tactics instructor, including recruit, advanced, and in-service training. I authored and revised self-defense lesson plans, appeared in U.S. District Court and deposition on behalf of the State of New Jersey regarding use of force litigation matters, and served within the Office of Professional Standards (formally IAB) as a supervisor and investigator, specifically in use-of-force investigations.

 

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