Use-of-Force Policies Essay

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A broad mandate to use coercive power is a hallmark of law enforcement, distinguishing it from other civilian occupations. Whether employed by federal, state, or local law enforcement organizations, officers are authorized to use force to protect themselves and others, perform investigative stops and make arrests, conduct searches, disperse crowds, take individuals into protective custody, or prevent escape. Force can be categorized as physical, use of firearms, electronic, chemical, or impact device and use of dogs.

Legal Restrictions and Agency Guidance on Use of Force

Federal law enforcement personnel are required, at a minimum, to conform their uses of force to relevant federal statutes and the case law of federal courts. State and local law enforcement officers must adhere to state statutory law as well as those state and federal court decisions that restrict their powers to use force. Almost all of the nearly 18,000 U.S. federal, state, and local law enforcement agencies have written use-of-force policies that clarify and expound on legal restrictions, commonly resulting in the imposition of limitations on officers who exceed those mandated by law. Use-of-force policies are necessarily tailored to the infinite array of roles, terrains, and contexts in which law enforcement duties are discharged: U.S. Coast Guard personnel, air marshals, rural police officers in remote locales, officers securing nuclear or other highly sensitive locations, or postal inspectors. Consequently, there can be marked  differences in legal and administrative use-of-force restrictions placed on different law enforcement entities, even among different agencies of the federal government.

Definitions of Force

Use of force is defined as the amount of effort required by police to compel compliance by an unwilling subject, or the physical movements used to control, restrain, or overcome the resistance of another.

A typical description of excessive force is contained in the guidelines of the Honolulu Police Department: “. . . the amount of force which is beyond the need and circumstances of the particular event, or which is not justified in the light of all circumstances.” Generally, force used to retaliate or punish another is excessive and unlawful.

Deadly, or lethal, force is defined as that quantum of force which creates a substantial risk of causing death or serious bodily injury. In California, the term serious bodily injury encompasses loss of consciousness, concussion, bone fracture, protracted loss or impairment of function  of any bodily member or organ, a wound  requiring extensive suturing, or serious disfigurement. Physical force is force that is lesser than deadly force and most commonly is pushing, pulling, shoving, grabbing, and handcuffing.

The leading U. S. Supreme Court  ruling on police use of force is the 1989 case of Graham v. Connor, in which the court concluded that police officers may use the amount of force that is “objectively reasonable” to control subjects. The court framed the test of reasonableness as “what would an ordinary prudent police officer do faced with the same or like circumstance?” The totality of circumstances known by the officer is considered in assessing whether force is or is not reasonable.

Use-of-Force Continua and the Proportionality Requirement

An estimated 80 percent of law enforcement organizations utilize a use-of-force continuum designed to give more concrete guidance to officers than what is provided by the “objective reasonableness” standard in the Connor  case. Many law enforcement agencies instruct officers in, and have policy guides for officers regarding, appropriate responses to an aggressive escalation in an encounter with a civilian. The “use-of-force  continuum” describes  this  escalating scale of force. For example, verbal commands to use no force would be appropriate if someone was completely acquiescent to the verbal directions of officers or agents. At the other extreme, deadly force would be authorized if deadly force was imminently threatened against an officer or an innocent third party.

Most continua in use around the country utilize the “one-plus rule,” which authorizes officers to resort to force that is one level higher than that which is being threatened or used by a resistant person. Most recently, some continua models have been criticized as misleading or confusing for officers. The nation’s busiest federal law enforcement training center, the Federal Law Enforcement Training Center (FLETC) in Brunswick, Georgia, has abandoned continua in its training. Centering  the use-of-force training  on continua, critics argue, can lure imperiled officers into assessing threat levels rather than responding decisively to the totality of possible risks the officer perceives.  In addition, some police trainers believe that quick and overwhelming force (two levels or higher than officers are confronting) may lead to a faster resolution of a fraught situation with a diminished potential for officer and subject injury. Police–citizen confrontations are nonlinear and can spiral from the lowest level to the highest with little or no advanced warning. Some agencies have substituted a “just be reasonable” standard for the more standard use-of-force continua.

Deadly (Lethal) Force

Law enforcement  officers are authorized to use deadly force to protect themselves or others from what is reasonably believed to be an imminent threat of death or serious bodily injury, or to prevent a crime in which the suspect’s actions place person(s) in imminent jeopardy of death or serious bodily injury.  Officers may use deadly force to  apprehend violent  felons  endangering  the safety of the community or law enforcement officers. The prohibitions against using deadly force against nonviolent fleeing felons, set down by the U.S. Supreme Court in Tennessee v. Garner are inapplicable.

The manual of the Los Angeles Police Department  (LAPD)  suggests  that  officers  evaluate the following factors before resorting to using deadly force:

  • The seriousness of the crime or suspected offense
  • The level of threat or resistance presented by the subject
  • Whether the subject was posing an immediate threat to officers or a danger to the community
  • The potential for injury to citizens, officers, or subjects
  • The risk or apparent attempt by the subject to escape
  • The conduct of the subject being confronted (as reasonably perceived by the officer at the time)
  • The time available to an officer to make a decision
  • The availability of other resources
  • The training and experience of the officer
  • The proximity or access of weapons to the subject
  • Officer versus subject factors such as age, size, relative strength, skill level, injury/ exhaustion, and the number of officers versus subjects
  • The environmental factors and/or other exigent circumstances

In addition, some departments instruct  officers that they may not recklessly endanger others while protecting themselves. However, deadly force guidelines for Federal Bureau of Investigation (FBI) agents acknowledge that officers make split-second decisions and are not required to “subject themselves to unreasonable risks”.

The most significant U.S. Supreme Court case on the use of force was Tennessee  v. Garner (1985), which proscribed the use of deadly physical force to capture a nonviolent fleeing felon. At the time this case was decided, the police in about half the states were allowed to fire their weapons to apprehend a suspect fleeing from a nonviolent crime.

Restrictions on the Discharge of Firearms

Research about police use of deadly force shows that  incidences  of officers firing weapons  at offenders are stable and rare. However, because of the risks associated with any discharge of firearms by officers, especially in more densely populated  areas,  metropolitan police departments (and other agencies) frequently have bright-line restrictions which forbid officers to fire in specified situations.

Prohibited uses of firearms include firing warning shots, firing from or at a moving vehicle unless deadly force other than the vehicle is being used, or firing at aggressive animals except when there are no other options. In addition, police officers shall not discharge their weapons  when doing so will unnecessarily endanger innocent persons. Some agencies have rules about when weapons can be drawn or pointed at others.

Physical (Nonlethal) Force

While many police officers in even the nation’s busiest places may complete entire decades of service without utilizing deadly force, use of ordinary physical force is a common occurrence in policing. Two surveys by the Bureau of Justice Statistics estimated that 1.6 percent of an estimated 44 million people who had face-to-face with a police officer were threatened with or actually experienced force. Where force is used it is most commonly grabbing, pushing, shoving, or handcuffing by officers. Of those individuals who had been subjected to or threatened with the use of force in 2008, about half were pushed or grabbed by police. About 19 percent of persons who experienced the use or threat of force by the police reported being injured during the incident.

In some law enforcement agencies it is permissible to use all available reasonable force, whereas other agencies, notably the nation’s largest police service, the New York City Police Department (NYPD),  limit officers to using the minimum force necessary for accomplishing the task officers are performing Law enforcement officers may use a variety of holds and restraints to secure compliance  with lawful objectives or to disarm adversaries. One controversial hold is the choking off of someone’s oxygen supply, a so-called sleeper hold, which can result in serious injury or death to the subject. Some police departments such as NYPD, Bay Area Rapid Transit, and LAPD specifically forbid administration of this hold. Officers may use a variety of holds and restraints to secure surrender of unwilling individuals.

Less Lethal Weapons

The purpose of using nonlethal devices is to reduce the danger of injury or death to officers and suspects. Nonlethal weapons afford officers the opportunity to utilize “intermediate tools” between ordinary physical and deadly force. Approved nonlethal control devices may be used to control a violent or potentially violent suspect when lethal force does not appear to be justifiable and/or necessary. Batons, or “night sticks,” can be used to help restrain a subject until handcuffs can be applied. These weapons are also very effective at blocking blows and strikes and helping officers to avoid injury. An ASP is a telescoping baton. Law enforcement officers rate ASPs highly for their portability, convenience, effectiveness, usability, and psychological impact.

An electronic control  device (ECD), such as a TASER, is a law enforcement compliance tool that uses electroshock technology to cause neuromuscular incapacitation or pain compliance. The TASER serves two distinct functions during a use-of-force encounter. Its primary and preferred use is as an incapacitation device that allows officers to maintain a safe distance while rendering a threat incapable of fighting back. The pain occasioned by being shocked can also entice a resistant subject to comply with the officer’s attempts to control him or her. According to Amnesty International, more than 500 people have died in the United States after being exposed to a TASER or other ECD since 2001. Excited delirium and falls have resulted in serious injuries or deaths.

In addition, police officers may use mace or pepper spray ( oleoresin capsicum, or OC, spray) in an effort to secure suspect compliance.  OC spray may be used when verbal dialogue  has failed to bring about a subject’s compliance, and the subject indicates the intention to actively resist the officer’s efforts to arrest him or her. If it is practicable, officers will give the subject advance warning that OC spray will be used. Officers may also use chemical agents to disperse crowds or to dislodge or detect barricaded suspects. Dogs can be used to apprehend fleeing or noncompliant individuals. Use of dogs is ordinarily considered physical, nonlethal force.

Effect of Use-of-Force Guidelines

There are many studies which conclude that the formulation and enforcement of restrictive rules on the use of force have contributed to significant reductions in the use of deadly force in many jurisdictions. It is less clear what the impact of non-deadly force regulations has had on law enforcement’s uses of force.

Bibliography:

  1. California Penal Code Section 243(f)(4). Friedell, Lorie, Steve Ijames, and Michael Berkow. “Taking the Straw Man to the Ground: Arguments in Support of the Linear Use-of-Force Continuum.” Police Chief, v.78 (2011). http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_ id=2548&issue_id=122011 (Accessed October 2013).
  2. Friedersdorf, Conor. “At Occupy Oakland It’s Police Who are Breaking the Rules.” The Atlantic (November 1, 2011). http://www.theatlantic.com/national/archive/2011/11/at-occupy-oakland-its-police-who-are-breaking-the-rules/247653 (Accessed October 2013).
  3. Levine, Michael. “Honolulu Police Share Use of Force Guidelines.” Honolulu Civil Beat (October 24, 2011). http://www.civilbeat.com/articles/2011/10/24/13372-honolulu-police-share-use-of-force-guidelines (Accessed October 2013).
  4. Skolnick, Jerome H. and James F. Fyfe. Above the Law: Police and the Excessive Use of Force. New York: Maxwell Macmillan International, 1993.
  5. Terrill, William, Eugene A. Paoline III, and Jason Ingram. “Final Technical Report Draft: Assessing Police Use of Force Policy and Outcomes.” Document 237794. U.S. Department of Justice (February 2012). https://www.ncjrs.govfiles1/nij/grants/237794 (Accessed October 2013).

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