Excessive Use of Police Force in the State of California Excessive Force in California

The objective of this study is to examine the use of excessive force by police officers in the State of California. Toward this end, this study will conduct an extensive review of literature in this area of inquiry.

The work of Wiley (2011) entitled "Excessive Force Claims: Disentangling Constitutional Standards" reports that "excessive force claims seem to be reported in the news constantly." (p.1) Wiley states that the Constitution "and in particular the Bill of Rights, were of course written in part to protect citizens from governmental abuse in its most evident form." (2011, p.1) There are reported to be four different standards used to determine what comprises the use of excessive force on the part of the government. These four standards are reported to be "variously grounded in the 4th, 8th and 14th amendments to the United States Constitution. Moreover, somewhat counterintuitively the constitutional standards for permissible force depend entirely upon the custodial status of the alleged victim of force -- that is, whether the victim is a pretrial detainee, a convicted criminal, or a free citizen." (Wiley, 2011, p.1) The following standards apply to each of these types of individuals:

(1) A pretrial detainee is protected under the 14th Amendment's right to substantive due process, and to violate the Constitution the official's use of force must be "conscience-shocking" (with two separate culpability standards depending on whether the situation is an emergency, or not);

(2) An incarcerated convict is protected under the 8th Amendment's cruel and unusual punishment clause, and to violate the Constitution the official's force must be used "maliciously and sadistically with the very purpose of causing harm"; and (3) A free citizen is protected under the 4th Amendment's search and seizure standard, and to violate the Constitution an official's use of force must not be "objectively reasonable." (Wiley, 2011, p.1)

The work of Burris (2012) states the police are allowed to "use reasonable physical force to apprehend and subdue a suspect." (p.1) However, when police use violence for punishing, intimidating or coercing confessions of intentionally inflicting pain" their methods of doing so are under scrutiny. For example, questions in regards to the use of police batons are such that ask if the officers followed procedure and did they cease use of the batons once they had subdued the individual and did they break any bones.

In regards to the use of tasers, the questions are such that ask why the taser was used and did the person merely verbally become combative or did, they "pose an actual threat and how many times the individual was shocked and did they already have handcuffs on? In regards to the use of pepper spray questions include why the spray was used and was it sprayed at close range into the mouth or nose and did the officers let up when the individual "was in obvious respiratory distress?" (Burris, 2012, p.1)

Handcuffs come under scrutiny when the individual has sustained severe facial injuries due to being thrown to the ground or against the wall. Choke holds, kicks, and takedowns are questioned in some cases and crowd control such as the "indiscriminate use of rubber bullets or tear gas on crowds of protestors" has occurred. (Burris, 2012, p.1) The question of law is "whether an objective and reasonable officer in the same circumstances would have acted in the same way, whether the officers followed departmental procedures and whether the suspect was even resisting arrest." (Burris, 2012, p.1)

Shouse (2012) reports that the Los Angeles Police Department has

"received particular attention for police misconduct." (p.1) Shouse reports that the Christopher Commission Report was issued in the aftermath of the 1991 Rodney King beating. The Commission found repetitive use of excessive force as well as a lack of accountability by the LAPD. Just as the ink dried on Christopher Commission findings, unseemly happenings in the Rampart Division spurred other investigatory bodies to action. The Rampart Scandal involved dozens of officers being implicated in acts of misconduct ranging from narcotics dealing to suspect framing." (Shouse, 2012, p.1)

Shouse reports that police abuse and corruption results from various factors including "poor training or pressure to get convictions" and notes that many times it results from "sloppiness or bad judgment." (2012, p.1) Shouse states that in the worst police abuse cases it simply "boils down to racism, cruelty, and meanness." (2012, p.1)

Shouse reports that an 'Innocence Project' study states findings that police misconduct "…contributed to almost half of the first 74...

This means innocent people end up in jail when cops perjure themselves, falsify evidence, make deals with crooked police informants, and conceal exculpatory facts. Police abuse inflicts lasting trauma on victims and their families. Broken bones and bruises heal, but feelings of fear, humiliation and distrust of government resulting from bad police encounters continue." (Shouse, 2012, p.1)
Police misconduct does not just occur in the streets and according to Shouse (2012) it also happens in county jails and in California state prisons. Laws exist to protect citizens from police abuse including civil rights, which are liberties that the U.S. Constitution guarantees along with federal laws and California state laws. There are specific fundamental rights of the individual that the government cannot intrude upon or violate without good cause. Specifically the Fourth Amendment protects citizens from being subject to unreasonable searches and seizures meaning that if the police officer makes use of excessive force in making an arrest or conducting a search of a home without use of a search warrant or without probable cause, the officer has violated the Fourth Amendment rights of the individual. The Eighth Amendment of the U.S. Constitution protects citizens from being subject to punishment that is either "cruel or unusual." (Shouse, 2012, p.1)

Individuals who have been subject to police abuse have three primary causes of action including: (1) constitutional claims; (2) civil tort claims; and (3) state criminal claims. (Shouse, 2012, p.1) Wiley reports that the standard in police abuse cases is a 1973 California 2nd Circuit Court opinion in the case of Johnson v. Click reported to be "authored by the venerable Judge Friendly, which based a pretrial detainee's right to be free from excessive force from a correctional officer on the 14 tth Amendment's substantive due process protection." (2012, p.1)

Click held that "under the Supreme Court's precedent of Roncin v. California, "quite apart from any 'specific [amendment] of the Bill of Rights, application of undue force by law enforcement officers deprives the suspect of liberty without due process of law." (Wiley, 2012, p.1) In the analysis of Judge Friendly, the application of the 8th Amendment's protection against cruel and unusual punishment to pretrial detainees…was specifically rejected" and Friendly stated that the amendment is only applicable to "claims made by persons who have been convicted and sentenced. He also refused to apply the 4th Amendment's proscription against unlawful searches and seizures to claims brought by pretrial detainees. In essence, Judge Friendly determined that, because no specific amendment applies to pretrial detainees, the catch-all protection of substantive due process in the 14th Amendment applies to a pretrial detainee's claim of excessive force." (Wiley, 2012, p.1) It was held in this case that a plaintiff "may prove an excessive force claim under the 14th Amendment if the plaintiff shows "conduct that shocks the conscience' under Roncin." (Wiley, 2012, p.1) Friendly stated a four-factor test to be used in making the determination whether "a use of force met the conscience-shocking standard." (Wiley, 2012, p.1) The determination of whether a constitutional right has been violated involves considerations of:

(1) the need for application of force;

(2) the relationships between the need and the amount of force that was used;

(3) the relationship between the need and the amount of force that was used, the extent of injury inflicted, and (4) whether force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm. (Wiley, 2012, p.1)

Wiley (2012) reports that the decision "…explicitly recognizes that aspects of jail management may lead to the need to use force: "[t]he management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force." (p.1)

The Supreme Court decided in 1986 in the case of Whitley v. Albers "…an excessive force case by convicted prisoners against guards in a prison riot" that the use of force if excessive involved convicts being able to show that the use of force "constituted an unnecessary and wanton infliction of pain, under the cruel and unusual clause of the 8th Amendment." (Wiley, 2012, p.1) Additionally, it was held by the Court that "in order to meet these standards, the prisoner must focus on the fourth Glick factor, and prove force was used maliciously and sadistically for the very purpose of causing harm." (Wiley, 2012, p.1) It was additionally noted by the Court that "the other…