Unformatted text preview: Police Use of Force:
Determining Reasonableness CRJU E491P, Police Liability
Spring 2011, Mr. Smith The Foundation
The Police officers may justifiably escalate the use of force against a suspectbeginning with mere presence or verbal and visual commands, and concluding, if necessary, with the use of deadly forcein direct response to the resistance or force used by the suspect.
In using force to effect a “seizure,” police officers, since 1989, have been held to a standard of “objective reasonableness” and are expected to conduct their actions as would a “reasonable person.” The Prior Standard
The Prior to 1989, most courts followed a Fourteenth Amendment substantive due process "shocking to the conscience" standard, enunciated in 1973 by the Second Circuit Court of Appeals in Johnson v. Glick, to evaluate an officer’s use of force.
Under that standard, four factors were viewed as determinative of whether police officer use of force was excessive:
1) The need for application of the force;
2) The relationship between the need and the amount of force;
3) The extent of the suspect’s injury; and
4) Whether the force was applied maliciously and sadistically for the very purpose of causing the suspect harm. The Current Standard
The In a 1989 case, Graham v. Connor, the US Supreme Court abandoned the “shocking to the conscience” standard that had been used in prior seizure cases and put in its place the “objective reasonableness” test.
The new test discarded the prior subjective evaluation of the officer’s conduct in favor of a review of the force used from the perspective of a socalled “reasonable person.”
The change produced a rule which was intended to be uniformly applied by jurors, without the judicial intervention that existed under the prior rule of Johnson v. Glick, and to establish a completely objective basis for evaluation of police use of force. Graham v. Connor- The Facts Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend's house instead.
Connor, an officer of the Charlotte, North Carolina, Police Department, became suspicious after seeing Graham hastily enter and leave the store and the car then drive away.
Connor followed Berry's car and, about onehalf mile from the store, he made an investigative stop. Although Berry told Connor that Graham was simply suffering from a "sugar reaction," the officer ordered Berry and Graham to wait while he found out what had happened at the convenience store. When Officer Connor returned to his patrol car to call for backup assistance, Graham got out of the car, ran around it twice, and finally sat down on the curb, where he passed out briefly. A number of other Charlotte police officers arrived on the scene in response to Officer Connor's request for backup. One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry's pleas to get him some sugar.
Several officers then lifted Graham up from behind, carried him over to Berry's car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to "shut up" and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham's brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him.
Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder; he also developed a loud ringing in his right ear that did not go away. The Graham Holding
The “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable . . . seizures" of the person.” “Today we make explicit what was implicit in Garner 's analysis, and hold that all claims that law enforcement officers have used excessive forcedeadly or notin the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”
“[I]ts proper application requires careful attention to the facts and circumstances of each particular case, 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.” “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make splitsecond judgmentsin circumstances that are tense, uncertain, and rapidly evolvingabout the amount of force that is necessary in a particular situation.”
“Of course, in assessing the credibility of an officer's account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored illwill toward the citizen.” The Problem after Graham
The The reasonableness of an officer’s actions may be subsequently assessed by coworkers, superiors, a civilian review panel, or a jury. Police officers and supervisors rely upon their backgrounds, experiences, and biases to determine the reasonableness of force used by their fellow officers. Similarly, members of civilian review panels may seek input from other community members or may respond to their perception of public opinion. If a claim of excessive force goes beyond an internal police investigation or civilian review, a civilian jury may likely be assisted by expert witnesses who provide testimony concerning the appropriateness of police action according to “currently accepted police practices and training.”
Since Graham, the objectivity assessment for cases involving police use of force has become something of a "guided tour" by expert witnesses, whose opinions may be “tainted” by the position of the side for which they testify. Police administrators, however, are required to develop policies and procedures for line officers based on the anticipated actions of the "reasonable person,“ not the opinion of any given expert witness. Brutality and Excessive Force
Brutality Police are often accused of “brutality,” a nebulous term.
The term “brutality” is often used to simply mean that the force used by police was “unreasonable.”
Unreasonable applications of force, however, do not necessarily all rise to the level of brutality, as that term has been developed by social scientists. Frequently we continue to operationally evaluate police officer use of force in the context of the officer’s subjective intentions, although a jury is required, legally, to evaluate those actions from the perspective of a “reasonable person.” Police Aggression
Police According to Egon Bittner, police aggression could be seen as either instrumental or affective. “Instrumental aggression” refers to actions intended to accomplish legitimate goals. In the realm of police actions, Bittner also referred to such aggression as “provoked force.”
“Affective aggression” refers to actions intended to harm or injure persons. In the realm of police actions, Bittner referred to this type of aggression as “unnecessary violence.”
Bittner's premise was that violence is unnecessary and unreasonable, while provoked force is required to fulfill the police mission. Skolnick and Fyfe took Bittner's concepts and transformed them into two types of police aggression: "brutality" and "unnecessary force." Brutality is “a conscious and venal act committed by officers who usually take great pains to conceal their misconduct.” Unnecessary force is “ineptitude or insensitivity,” such as, when wellmeaning officers unwisely enter into situations from which they can extricate themselves only by using force. Unnecessary force may involve a good faith police mistake.
Good faith plays no part in an act of brutality. Both types of police aggression hinge, however, on the intent of the actor, not an objective evaluation of the behavior involved. Brutality, or extralegal force, involves the willful and wrongful use of force by officers who knowingly exceed the bounds of their office. Unnecessary force occurs when wellmeaning officers prove incapable of dealing with the situations they encounter “without needless or too hasty resort to force.” The Difficulty
The Some commentators have viewed excessive force as "the use of any more force than a highly skilled police officer would find necessary to use in that particular situation.“
Such a definition, of necessity, contemplates the individual characteristics of a highly skilled officer. Because there are no national standards, however, relating to the specific levels of training which must be provided to officers, the “highly skilled police officer” standard is of little, if any, benefit in evaluating officer conduct. Additionally, the term “necessary” has basically come to mean what is “reasonable” under the circumstances; a decision that could only, realistically, be determined based upon a subjective analysis by the officer involved in the situation. Lack of Judicial Guidance
Lack Police officer use of force can be analyzed in terms of whether the officer enjoys “qualified immunity” for actions which, although they may have caused a citizen constitutional injury, do not result in imposition of personal liability upon the officer because the officer in inflicting the harm did not violate “clearly established law.” In effect, qualified immunity incorporates recognition of Skolnick and Fyfe’s “brutality
unnecessary force” distinction.
All that can be gleaned from available guidance, however, is that police behavior must be reasonable in the given situation. Unfortunately, courts still remain split over what law is “clearly established,” with the result that officers have very little guidance regarding the extent of that may be considered appropriate in a specific context. Lack of Policy Guidance
Lack The “objective reasonableness” standard of Graham v. Connor has forced police departments to create policies on the use of force that are unworkable.
An example of “model” policy language reads as follows: Police officers shall use only that force that is reasonably necessary to effectively bring an incident under control, while protecting the lives of the officer or another... The policy language provides no guidance on what the phrase "reasonably necessary" means or how to interpret it.
Many policies are written to provide a layer of liability protection and not to communicate clear operational guidance to officers. Force as a Multi-Stage Process
Force Frame analysis is crucial in the evaluation of police use of force. Most encounters involve three distinct frames: "The sequences of behavior in encounters that lead up to the deadly force sequence are ones in which external information can be taken into account and in which [an] alternative course of action can be considered.“ Albert J. Reiss, Jr., Controlling Police Use of Deadly Force
Activities prior to any contact with the suspect
Actions and behavior conducted "immediately prior" to the use of force. These begin when the police officer makes either physical, verbal, or visual, contact with the suspect.
The decision to use force and the use of force which causes the injury. This frame can include any force, such as the discharge of a firearm or the use of a chokehold, baton, fist, or other weapon. Officers must be held accountable for their actions in each stage of the process leading to the use of force, not just the final frame of the confrontation. Evaluation of Police Force
Evaluation At least five considerations, or layers of analysis, are necessary to fully evaluate police use of force: (1) The Organizational Atmosphere of the Agency; (2) The Situation; (3) The Environment; (4) The Participants and Their Relationships; and (5) Any Sustained Injury. Organizational Atmosphere The culture or normative expectations of officers in the police agency may influence the level of force deemed reasonable.
The training that agencies and their academies provide will define and shape the force alternatives available to their officers and the police subculture within the agency reinforces and provides encouragement for certain types of deviance and corruption, and discouragement for other types. Hence, officers learn “how to behave” in terms of their applications of force. The Situation
The The suspect's actions toward the officer or a citizen must be appraised to determine if a threat existed. The suspect's actions will also have to be evaluated based upon the information known to the officer at the time of the encounter.
Although the characteristics of a suspect, such as race and gender, may influence an officer's reaction or response, they are not causal variables and independently do not justify a greater or lesser degree of force. The Environment
The The rate, or prevalence, of violence in a particular geographic area influences police officers' perception of the environment as dangerous. In turn, this perception could affect their response to a suspect, irrespective of the actual threat posed by the suspect. Another important situational factor is the visibility of any police action or police reaction to a suspect's behavior. If officers believe they are alone and cannot be seen by members of the public, they may treat a suspect differently than if they are under the eye of a crowd or a video camera. The Participants’ Relationship
The A critical issue in any policecitizen interaction, especially those involving the use of force, is the attitude of the officer and the suspect towards each other.
The ethnic relationship between actors may have nothing to do with the level of force used by the police, but both ethnic and class differences may influence how each person perceives and subsequently acts toward the other. Any Sustained Injury
Any The nature and extent of an injury sustained by a suspect will frequently bear a strong correlation to a claim of excessive force.
A critical examination of policeinflicted injuries requires integration of the level of force permitted by law and policy. Use of Force Continuum
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