A legal term for how much and what kind of force a peace officer may use in a given circumstance
"Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance."
"A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance."
Graham vs. Connor (1989)
The Court noted that determining the objective reasonableness for the use of force must be fact specific, and established the following four components for determining reasonableness: 1) Judged from the perspective of a reasonable officer 2) Examined through the eyes of an officer on the scene at the time the force was applied, not the 20/20 vision of hindsight 3) Based on the facts and circumstances confronting the officer without regard to the officer's underlying intent or motivation 4) Based on the knowledge that the officer acted properly under the established law at the time.
Additional gauges for reasonableness
The severity of the crime The nature and extent of the threat posed by the subject The degree to which the subject resists arrest or detention Any attempts by the subject to evade arrest by flight
Reasonable officer standard
would another officer with like or similar training and experience, facing like or similar circumstance, act in the same way or use similar judgement?
"If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest."
"An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for arrest and detention."
Choices available to a peace officer in each agency's policy to overcome resistance, effect arrest, prevent escape, or gain control of the situation
Objective for use of force
To gain and maintain control of an individual and the situation
Peace officers are required to: use the type of force which is reasonable under the circumstances use only the amount of force reasonable to overcome resistance and to gain or maintain control of a subject conform to agency policy and federal and state law
Factors affecting selection of force
Public safety - Immediate action required for self-defense or defense of others
Amount and nature of the resistance which must be overcome - Passive resistance - Active resistance - Assaultive resistance - Life-threatening resistance
Presence of a weapon and type of weapon - Other Weapons - Firearms
Seriousness and nature of the offense - Misdemeanor cite and release - DUI - Armed Robbery
Characteristics of the subject as compared to the characteristics of the officer - Size - Age - Knowledge of Capabilities - History
Availability of assistance - Number of officers - Available backup units
Nature and condition of the location and surroundings - Danger to bystanders - Availability of weapons
Subjects actions- cooperative
Subject offers no resistance
Possible force options - Mere professional appearance - Nonverbal actions - Verbal requests and commands
Subjects actions- passive non-compliance
Does not respond to verbal commands but also offers no physical form of resistance
Possible force options - Officer's strength to take physical control, including lifting/carrying - Control holds and techniques to direct movement or immobilize a subject
Subjects actions- active resistance
Physically evasive movements to defeat an officer's attempt at control, including bracing, tensing, running away, or verbally signaling an intention to avoid or prevent being taken into or retained in custody
Possible force options - Control holds and techniques to control the subject and situation - Use of personal weapons in self-defense and to gain advantage over the subject - Use of devices to secure compliance and ultimately gain control of the situation
Subjects actions- assaultive
Aggressive or combative; attempting or threatening to assault the officer or another person
Possible force options - Use of devices and/or techniques to secure compliance and ultimately gain control of the situation - Use of personal body weapons in self-defense and to gain advantage over the subject
Subjects actions- life threatening
Any action likely to result in serious injury or possibly the death of the officer or another person
Possible force options - Utilizing firearms or any other available weapon or action in defense of self and others
Force that creates a substantial risk of causing death or serious bodily injury.
An officer may use deadly force to protect oneself or others when the officer has the objective and reasonable belief that his/her life, or the life of another, is in imminent danger of death or serious physical injury based upon the totality of the facts known to the officer at the time.
Tennessee vs. Garner (1985)
a case where an officer used a firearm (deadly force) to prevent the escape of a non-violent fleeing felon. The officer in this case relied on the "fleeing felon" standard, which allowed the use of deadly force on any category of felon that was attempting to escape.
Supreme court ruled based on a person's Fourth Amendment protection from unreasonable seizures by peace officers. The Court applied the reasonableness test set forth in the Fourth Amendment.
Scott v Harris (2007)
There is no way-to-apply a legal test. The ultimate question is whether the use of the particular force in a particular situation was reasonable. To make that determination, the court must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.
Components of the Gardner decision
1) "...if the subject threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction of serious bodily harm [or death]..."
2) "...probable cause to believe that the subject poses a threat of death or serious physical harm, either to the officer or others..."
3) "...probable cause to believe that the use of deadly force is reasonably necessary..."[to prevent escape]
4) "...some warning be given prior to the use of deadly force where feasible..."
that delay in apprehension would create substantial and unreasonable risk to officers or others possibly resulting in serious physical injury or death
A significant threat that peace officers reasonably believe will result in death or serious bodily injury to themselves or to other persons. Imminent danger is not limited to "immediate" or "instantaneous." A person may pose an imminent danger even if they are not at the very moment pointing a weapon at another person.
Three elements needed to establish sufficiency of fear (PC 198)
The circumstances must be sufficient to excite the fears of a reasonable person in like circumstances. The person must not act under the influence of fear alone. There has to be some circumstance or overt act apart from the officer's fear. The decision to use deadly force must be made to save one's self or another from great bodily injury or death.
Penal Code Section 196
"Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either: in obedience to any judgement of a competent court, when necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty, or when necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with a felony, and who are fleeing from justice or resisting such arrest."
Conditions warranting justifiable homicide by a public officer
-Ordered by a court to carry out a death sentence. -Acting in the course of duty -Retaking escaping felons -Arresting a felon who resists to the point where deadly force is reasonable
Unjustifiable homicide by a public officer
-Pursuing nonviolent felons -Arresting or pursuing a felon who does not present a threat to life -When arresting or pursuing a misdemeanant who does not pose imminent danger of death or serious bodily injury to people
Considerations before using deadly force
Threat to life Does the subject present a credible threat to the officer or others?
Imminent threat Does the subject present an imminent threat to life? Is the subject threatening the officer or others with a weapon? Subject's access to weapons or potential weapons Proximity of subject to the officer.
Type of crime/subjects Is the nature of the crime violent or non-violent? Is there a large number of subjects to be confronted?
Type of weapon Can it cause serious bodily injury or death?
Subject's capabilities Does the subject demonstrate superior physical skill over the officer?
Location and background Is there a crowd of innocent people behind the subject?
The officer's present capabilities What sort of weapon or other capabilities are at the officer's disposal?
Those events that led up to the encounter with the subject, including how the officer arrived at the scene as well as what observations helped the officer assess the situation.
Giving detailed information of the precursory acts provides the background information necessary to justify the use of force. Possible information includes, but is not limited to: establishing that the officer was acting in an official capacity the wearing of an approved uniform that clearly identifies the officer as a peace officer the mode of travel and whether or not the vehicle was clearly identifiable as a law enforcement vehicle identification as a peace officer the reason for the officer's presence
Factors justifying use of force
number of officers/subjects height and weight of each subject gender and age of each subject strength and fighting skills of each subject physical condition of each subject clothing (i.e., uniform with equipment vs. casual attire) stance of each subject (describe)
Specific characteristics of subject: prior contact obvious prison or gang tattoos specific gang attire access to potential weapons such as knives, boots, rings, or guns
Describing the environment
physical environment where the contact took place (e.g., high crime area, etc.) subject's potential to gain assistance or aid from friends or associates
Describing type of force used
identifying techniques by their proper names and providing a written description the effect or non-effect of the force technique used upon the subject the rationale for adjusting and transitioning the level of force communication before, during or after the use of force
Describing post custody actions
safe and effective adjustment of handcuffs double locking the handcuffs (reduces the possibility of inflicting injury from handcuffs over-tightening) obtaining first-aid or medical treatment for the subject and/or themselves when reasonably safe to do so damage to their clothing (i.e., uniforms) and equipment collection of evidence (what, where, and by whom)
Statements made immediately after the confrontation are often the most accurate since there is little time to become confused or let outside influences confuse the facts. Whenever possible, witnesses should be located and interviewed at the scene of the confrontation.
It is important to collect all statements including those persons who claim they did not see any part of the incident.
Documenting specific fact patterns at time that Use of Force occured
1) Set the stage- document the type of call and all info known to you before and after the call
2) Describe each person involved in the force transaction- physical traits, apparent mental and emotional state, objective symptoms (drugs, alcohol, etc.), and any weapons
3) Chronological step by step account of the force transaction- include how the force interconnected with the primary objective of maintaining control
4) Think of writing as a video that replays the event visually, mentally, emotionally, and physically for others
maintaining composure to make sound judgments and decisions
Emotional responses experienced by officers
Fear- an emotional response to a perceived threat Anger- a feeling of displeasure from perceived opposition
Both responses tend to decrease the officers' ability to make sound judgments and decisions and increase hesitation, verbal abuse and unreasonable force
Physiological reactions to fear
blood clotting enzymes flow into the system to minimize damage from wounds vision and hearing become more acute and focused (e.g., tunnel vision and tunnel hearing) increased muscle tension and perspiration raised pain thresholds time distortion color distortion impaired fine motor skills
Situations that may illicit unreasonable fear
an emotional response to a traumatic event generalization of past trauma (such as being bitten by a dog as a child or suffering a painful gunshot wound) personal prejudice against people of a particular race, religion, ethnic group, etc. overall anxiety as a result of uncertainty about one's own skills and expertise
-Discussing fears with others -Going through mental rehearsal before an incident takes place (what ifs) -After action assessments (what could I have done differently?) -Focusing on: what must be done and not solely on the danger itself evaluating the situation and determining what must be done to achieve the goal the survival phase in order to control the feeling of vulnerability
Identifying situations causing anger
Universal- being attacked or shot at Personal- Individual sensitivities that may prompt a reaction (e.g., history, personality, etc.) Emotional bruises and other sources of personal vulnerability
Depersonalizing what people say or do. -Recognize that the subject is reacting to the uniform and not to the person in the uniform.
Identifying anger inducing scenarios. -Visualize anger inducing situations (e.g., a child taking drugs, subject beating up partner, etc.).
Developing problem-solving solutions. -Practice mental rehearsals of different scenarios, do some role-playing, seek advice from more experienced officers, etc.
Recognizing the onset. -Control breathing, if appropriate take a step back from the situation.
Response vs. Reaction
Trained Responses are less predictable to the subject than instinctual reaction. are correctable. are flexible (can be adjusted and customized). can lead to increased self-control.
Reactions more predictable to the subject. limited. improper. dangerous to the officer or others.
The total and absolute loss of control. Panic in crisis situations will render officers incapable of applying the correct and necessary defensive action for the situation.
Objective of force application
Peace officers are required to: use force only when authorized to do so (e.g., to overcome resistance to a lawful process) use the type of force which is reasonable under the circumstances use reasonable force to overcome resistance and to gain or maintain control use the amount and type of force which is permitted by agency policy
Occurs when the type, degree, and duration of force employed was not necessary or appropriate.
Every officer who is guilty of willful inhumanity or oppression toward any prisoner under his care is punishable by a fine not exceeding four thousand dollars ($4,000) and by removal from office.
Every public officer who, under color of authority and without lawful necessity, assaults or beats any person, is punishable by a fine not exceeding ten thousand dollars ($10,000) or by an imprisonment in the State prison or in a county jail not exceeding one year or by both fine and imprisonment.
A public officer's removal for neglect or violation of official duty; discretion of the court.
It shall be unlawful to aid, abet, attempt, or apply cruel, corporal, or unusual punishments in reformatories, institutions, jails, state hospitals, or any other state, county, or city institution.
US Code Title 18, Section 242 (Criminal)
Peace officers are prohibited from depriving citizens of their rights under the color of the law. If death results, officers may be punished by life imprisonment.
US Code Title 42, Section 1983 (Civil)
Peace officers are prohibited from depriving citizens of their rights under the color of authority.
Holds an agency responsible for the conduct of its officers while acting within the scope of their authority. The agency can be: liable under Federal civil rights laws sued for negligent or inadequate training or failure to supervise adequately
An officer may face both criminal or civil liability and disciplinary action if they fail to intervene and prevent other officers from violating anyone's constitutional rights if they had reason to know and an opportunity to act. strongly caution the other officer physically restrain the other officer immediately report the incident
The officer who fails to intervene, for whatever reason, is also held accountable by the United States Code.
Delayed intervention techniques
Discussion -Fellow officer discusses the improprieties of such behavior; this is professionally beneficial.
Admonishment -Fellow officer informs peace officer that this type of behavior is not acceptable, and could likely provoke or escalate the conflict.
Training -Fellow officer suggests that additional training be pursued. Effective training occurs when an officer consistently demonstrates desirable behaviors
Verbal -Fellow officer offers to assist by saying, "Let me take care of this one, okay?"
Physical/touch -Fellow officer lightly touches the peace officer on the shoulder and offers a tactful reminder to calm down or offers to take over.
Restraint -Fellow officer physically takes hold of the other officer in order to separate the peace officer from the subject. Intervention must include immediate reporting.
Factors affecting intervention
Transfer of responsibility. "Somebody else will step in any minute now."
Rationalization. "Nobody else is doing anything so maybe I am just misunderstanding the situation and nothing is really wrong."
Self doubt. "What if I'm wrong? What will everyone think of me if I step in and do something?"
Personal factors affecting intervention
Unfamiliar with fellow officer Inexperience with proper action to remedy the situation Feeling that intervention is someone else's responsibility Peer pressure Personal problems Fearing consequences, such as being ostracized Fear of reaction from senior officers, field training officers, or supervisors
Psychological factors affecting intervention
Erroneous notion of how peace officers should behave (perhaps from movies and television) Fear may play a significant part in the behavior of the observing officer