The use of force in law enforcement

¶ … Force in Law Enforcement

The controversy swirling about Professor Henry Louis Gates, Jr., a respected Cambridge professor who happens to be an African-American, and Sgt. James M. Crowley, a police officer who arrested him at his home after someone called the police and said someone was breaking into it, is just one example of the wavering gray area which officers have to tread when deciding when to use force or not. When harangued because of his mistake, the officer took offense and the conversation became heated, setting off a controversy which reached the White House. President Barack Obama made the remark in a news conference that the police acted "stupidly" and the incident became a national issue. The New York Times reflected that "Police departments issue their officers Kevlar vests to stop bullets, and thick helmets and even shields to protect them from bottles and bricks. But there is nothing in the equipment room to give an officer thicker skin" (Wilson & Moore, 7/24/09).

The article goes on to inform the reader that training makes the difference between an officer who is thin-skinned and allows offensive language to wound him and an officer who ignores such remarks. "The line of when to put on handcuffs is a personal and blurry one, varying among officers in the same city, the same precinct, even the same patrol car," Wilson and Moore remind the reader. In Los Angeles, one officer said that facing bad language and taking it was a part of his job, that a police officer doesn't always hear what he or she wants to hear when arresting or ticketing someone. A person is not at their best when confronted this way or involved in a conflict when officers arrive. Other officers in Brooklyn disagreed, saying that they prefer to remain in control of a situation, and do not like to lose face in public. Still, the officers agreed that when it is the officer who is the source of the conflict, then the officer should leave. A detective declared that an officer cannot lock up everyone who is technically abusive, that "you've got to know which battles to fight" (Ibid.)

The profession of law enforcement is one of the most misunderstood professions. The general public both reveres and fears the police officer and the movies and television warp the concepts and duties of an law enforcement office so much that it is difficult to tell what is real and what is not, what can be trusted and what must be avoided. Unfortunately, from the officers' points-of-view, the way they regard their jobs and the way they regard the citizens they have sworn to protect, there is much to misunderstand as well. The modern-day law enforcement agency is attempting to dispel any myths and facades which have grown up around the model peace officer and offer valuable training and knowledge to new recruits and young officers which will help them realize their true mission and duties, as well as their responsibilities toward their fellow citizens.

In order to carry out their responsibilities, officers must be trained in the use of deadly weapons and other defenses. They also learn the proper terminology, language, and problems that misunderstanding the terminology might cause in the community. They learn their legal limits and their rights, as well as how they can carry out their duties in a legal manner. They learn about documentation of their actions and duties, and how valuable this paper documentation can be in the workings of the concerned community. They learn how positive interaction with members of the community, the media and the press can improve their job.

Reporting on the use of force is one of the ways of controlling risk in the carrying out of an officer's duties. Knowing what the standards for using reasonable force, knowing what pitfalls may await them by studying the mistakes of the past and applying this knowledge to their own reporting and use of weapons in the line of duty, is part of a young officer's training. Learning the standards for force reporting and learning how to make a report with complies with the standards helps improve officer safety on the job.

New weapons for subduing criminals and keeping officers safe in the line of duty have appeared. The Taser is a new weapon which already has a history and therefore can only be used in certain circumstances. The Taser is a handgun-sized device which has occasionally proven to be lethal, but can also be used to stun an unruly suspect with 50,000 volts of electricity from up to 18 feet away. Officers may also use the baton, a flashlight, stun guns, pepper spray and mace. Seldom used are tear gas and rubber bullets. Lethal weapons such as rifles and handguns are part of the arsenal which an officer must learn to use only as a last resort. Lethal and even the less lethal devices are sometimes misunderstood, and an officer must know what the public thinks when one of these is used.

During a law enforcement officer's career, it is almost certain that a question will arise concerning whether to use any of these weapons and, if so, how much reasonable force is needed when arresting criminal suspects. Because an arrest and the subsequent investigative detentions are considered seizures of persons and property, the Fourth Amendment to the U.S. Constitution must govern them. However, part of this paper will discuss whether it is actually necessary and reasonable to use force, as preventative measures against crime have changed the statistics.

In most urban and suburban areas, however, the use of deadly weapons and force is still an inflammatory issue. If police are still shooting unarmed suspects as often as they once did, then new training methods and new policy procedures are not working. The basic understanding of the officers' rights and limits must be better understood. Enforcement officers must have and show probable cause in order to make a valid arrest. The manner in which arrests are carried out must not only be justified at their inception, but the level of force that may be used, must be considered "reasonable."(Hall, p. 1)

The word "reasonable" continues to come up and be debated in all courts of law, as the Constitution and other codes state that force may be used if it is constitutionally reasonable to arrest suspects considered dangerous or to defend life when necessary.

The Constitution puts forth a standard of "reasonableness" in the Fourth Amendment, saying that the word is not conducive to "precise definition," but that each individual case must be viewed separately. Seen from the perspective of a reasonable law enforcement officer at the scene, cases are considered, not with hindsight, but in consideration of the fact that split-second judgments must often be made "in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation" (Graham, pp. 396-397).

In deciding the circumstances that govern reasonableness in using particular levels of force, the Supreme Court has shown that it depends upon "the severity of the crime;" "whether the suspect poses an immediate threat to the safety of the officers or others;" and "whether the suspect actively is resisting arrest or attempting to evade arrest by flight" (Hall, p. 1). Recent cases may reassess law enforcement officers' applying force when making arrests.

Chapter Two -- History of the Use of Force in Law Enforcement in the United States

In decades past, police psychologists have attempted to screen out officers who might be at risk for using excessive force in the course of their duty through pre-employment identification of violence-prone candidates. However, psychologists serving police complain that they more often are called in to counsel in response to incidents of excessive force use, rather than trying to prevent it (Scrivner, p. 1).

But a psychological profile for officers at risk for violent tendencies is emerging and new ways of behavior monitoring, better training, and ways for dealing with job stress, attempting to alleviate much of the incidents of violent behavior on the job. The psychological profile for an office at risk involves analyzing the candidate's decision-making and problem-solving abilities, as well as the kinds of interaction the candidate has with others. These areas are important for producing an office who will be involved in community policing.

Because of the use of force and the effect that violence has upon the human psyche, psychologists have played a large part in the downturn of violent incidents in statistics in the United States. Since the 1960's, police psychologists have had a place in the operations of large police forces, expanding their duties quickly beyond screening to the broader range of support services, such as helping officers cope with job stress, training officers in human relations and stress management. They did debriefings after traumatic incidents, used forensic hypnosis, conducted lie detection tests and assisted in negotiations in hostage or barricaded situations. But they always were more in demand for supporting officers who used lethal force than in intervening in non-lethal, excessive force.

During the 1960's and 1970's, violent contact with the police, resulting in force occurred during anti-war, labor and civil rights demonstrations, during a politically tumultuous time. It is safe to conclude that excessive force was used during these clashes. Deaths and injuries were the results of political clashes at the Republican Convention in Chicago, during campus riots held at several universities, during political demonstrations held in public places and in cities where racial animosities were stirred up. At that time, it was sometimes felt that the political movement or threat to the community could be quelled by violently quashing the people with police power. Because of the lack of national statistics and the reluctance of police to reveal data concerning these events, it is hard to tell exactly how much force was used and how many people were killed or injured.

A1994 study by Anthony Pate and Lorie Fridell attempted to determine to some extent the kinds of force and how much of it was used by police departments during the 1960s and 70's. The most common kinds of force used were those least likely to result in injury: restraints or handcuffs and verbal threats. Less frequently used were chemical agents like Mace, flashlights and batons used as clubs and police dogs. The least used were deadly force, such as civilians shot and killed (0.9 per 100,000 officers), vehicle rammings (1 per 100,000 officers) and those wounded by gunfire (0.2 per 100,000 sworn officers) (Law, p.1).

The study done by Pate and Fridell could not be called complete, however, because "not all departments require reporting the use of force," though they do require reporting the use of deadly force. Even though they did not get statistics, they reported that only 29% reported the use of handcuffs, 72% reported using chemical agents and 82% reported using batons. Again, the definition of "force," comes into question when different police departments make reports, as "police use of force, excessive use of force and use of excessive force represent three different types of conduct" (Ibid.)

The March 3, 1991 beating of Rodney King in Los Angeles by police, which was broadcast multiple times a day on major TV networks, triggered riots and prompted the Justice Department to issue initiatives, obtaining input from psychologists from the nation's largest cities to identify the profiles of officers who might abuse their positions and use excessive force against detainees.

In 1991, the distinction between a police officer using force against a criminal who is free and using lethal force against police and civilians and a police officer using force against a detained criminal who is now incapable of using force or defending him or herself became a crucial point in the courts and on the field.

In 1999, the World Trade Organization met in Seattle, Washington and, though police prepared to meet any demonstrations peaceably, the numbers of people who protested soon turned the demonstrations into ugly clashes. The American Civil Liberty Union analyzed the event and claimed bystanders and peaceful protesters alike were abused by the police using tear gas, rubber bullets and by violating civil rights. The police blamed it on trained protesters who claimed to be hurt when they weren't, but the people read headlines such as "Out of Control: Seattle's Flawed Response to Protests Against the World Trade Organization" as the American Civil Liberties' analysis of the event was called.

In 2001, a two-yr federal investigation revealed that the police used force in their dealings with the residents 15% of the time, killing more people per resident in the 1990s than any other large city in the U.S. The federal investigators determined excessive force was used and that the police dogs were misused and bit people 70% of the times they were employed (it should have been more like 10% of the time). New programs were implemented while the investigation was being done in the city and the number of people killed by police from 1998 to 2000 fell by 82%.

In Cincinnati, police facing a federal investigation following a series of excessive force charges and riots by protestors, cut their complaints from 77 in 1998 to 54 in 1999 and even further, to 48 in 2000. But the use of chemical spray increased (from 753 to 1000) in the same period.

In Detroit, the leader in use of deadly force by police (0.92 fatal shootings per resident), lawsuits cost the city $124 million from 1987 to 1999. Recruits and cadets were made to take an increased 26 hours of training, rather than 16 hours, on when and how to use deadly force. One officer investigated (Eugene Brown) killed three persons and wounded another in nine shooting incidents since 1993 -- more shootings than any other officer.

In New York, during the 1970s, police were encouraged to use their nightsticks regularly and in the 1990s Mayor Giuliani set a policy of "zero tolerance" for quality of life crimes (such as vagrancy and drinking in public) and the policy paid off with the rate of homicides falling by 50%, but some claimed the policy was excessive: 80 persons died at the hands of police during Giuliani's first term and the city paid $100 million settling misconduct complaints against the police. In 2001 (the same year New York received the attack on the Twin Trade Towers) complaints rose by 4% for using force, discourteous conduct, abuse of authority and bad language on the part of police. Half the complaints were made by African-Americans. Since then, efforts have been made to integrate the force and Police Commissioner Safir claims excessive force has gone down by 23% because he required new officers to be better educated and set an older age limit.

In 1994 the Justice Department commissioned a study to identify officers who might use excessive force in stress-laden situations. The commission identified psychologists who had relevance to the mental health of officers and asked them to recommend how to predict, prevent or remedy the use of excessive force in police activities, such as that which triggered the Rodney King incident. The psychologists who were interviewed for the study were those who had worked as salaried employees or consultants to police departments for many years. A quarter of them were on the staffs of and were established employees of local police forces.

Multiple determinants of use of excessive force were identified, which invalidated pre-employment screening for characteristics predicting behavior. Five profiles were presented which identified an etiology of unstable personalities.

The five unstable personalities include:

1. Officers with personality disorders that placed them at chronic risk.

2. Officers whose previous job-related experience placed them at risk (such as justifiable police shootings and other traumatic situations) for reasons different from category 1.

3. Officers who had problems at early stages in their police careers (such as young and inexperienced officers who are seen as "hotdogs," who are highly impressionable and exhibit immature responses).

4. Officers who have developed inappropriate patrol styles (were trained to be heavy-handed and controlling).

5. Officers with personality problems (such as those who have personal problems at home or on the job which causes them to temporarily perceive themselves as losing face or status) (Scrivener, p. 10).

The categories vary in a range from (1) untrainable to more and more trainable (2-5), with job habits and training which can be undone. The longer officers are allowed to exhibit their bad habits, however, the harder it is to change them and in a world where an officer is held accountable to the public, some of them may not be able to adapt to the public-friendly model now demanded.

Good training can diffuse situations which are volatile and might cause lasting damage to the community and injuries to involved persons. When officers only have a second to make a decision in dealing with dangerous and unpredictable situations involving criminals, training can make the difference between a proper and improper response. The officer can take the appropriate action which will either protect and quell the disturbance, or create lasting or deadly injuries to himself, citizens, the perpetrator of a crime and the community. Sometimes it will involve the use of force or deadly force, but the officer has a duty to protect himself and others and is legally entitled to "use appropriate means, including force" in doing so (Title LXII: 627).

In a news release from Portland Oregon dated July 14, 2009, a study of the Portland Police department's use of force found that complaints had dropped by 58% since 2004 and credited the drop to overseeing officers' use of force during the carrying out of their duties. An April 2007 review had recommended improving the management of force and reducing complaints. The department took the recommendation seriously and Police Chief Rosie Sizer reported a 72% drop in the rate of non-lethal impact with a corresponding decrease in civilian and officer injuries from encounters. A copy of the report entitled "Use of Force Follow-Up Report" was made available to the public through the Independent Police Review (Oregonian, 2009).

Today we live in a world where the use of force has declined dramatically from what it was 30 years ago. In his book, A History of Force, James L. Payne claims that "as far as we can tell from the historical record, we live in a much more peaceful world than has ever existed. Humans are less vicious, less inclined to inflict physical injury than they used to be" (Payne, p. 255).

Looking over human history throughout the world and over recorded time, it appears apparent to Payne that the world is moving away from the use of deadly force and violence in all kinds of relationships as a solution to problems. Payne defines force as "deliberate physical action against the persons or possessions of another" (Ibid., p. 20, emphasis in original). In America, where citizens are used to news of the constantly expanding war, they may be surprised to learn that the trend is a diminishing use of coercion in our society. But Payne insists that improved national news coverage makes us more aware of the occasional incidents of violence that used not to be broadcast to the nation and tended to remain local. This is true of child kidnappings, which, though we hear of the occasional one in some distant state, have actually rapidly declined. Payne also claims that some institutions, such as the Stockholm International Peace Research Institute, find it in their best interest to exaggerate the incidence of conflict in the world. Fundraising is improved and the organization grows rapidly when it appears that violence is growing, rather than diminishing (Ibid. P. 400).

Payne claims that it is because of this broad news coverage that humans are slowly leaning toward peaceful interactions, because of our ability to understand and improve our situations the more we know. He reminds us that violent practices, such as human sacrifice, biblical commandments that prophets and "dreamers of dreams" be put to death during religious persecutions such as the Inquisition, and the killing of those charged with heresy are now extinct. Sadism, he admits, still exists, but is seen as an aberration, rather than the rule among those who hold power over others.

Payne advocates the use of regulation of economic activity, taxation, government licensing, policing of personal conduct and zoning are now replacing violent repression of illegal activities by individuals or groups. He states that the government must still use lawful and less violent forms of force, or "you haven't got government" (Ibid., p. 241).

Genocide was the expected result of wars in ancient days, when it was common for the victor to completely wipe out a culture it had conquered by slaughtering or enslaving every man, woman and child. Today a regard and respect for other religions and cultures has made violence against a whole race or nation abhorrent. Only in primitive cultures is genocide still practiced when a war is won, such as the Rwandan genocide a decade ago. It may be safe to say that the worldwide revulsion against genocide may never allow that to happen again. As world history tells us, there is a decline in imperialism, political murders, torture, slavery, capital punishment and violent revolutions. It seems clear that many kinds of physical or deadly force are less common. Religious or racially motivated crimes are labeled "hate" crimes in our criminal code and are no longer tolerated.

This trend extends to police protection and accountability in the United States. The public expects its police force to be rational and even kind, when it comes to relationships with them.

Chapter Three -- Review of Law and Statistics

When reviewing the literature dealing with the use of force in law enforcement, it is necessary to look at Supreme Court cases which have dealt with the use of force by officers, such as Graham v. Connor, 490 U.S. 386 (1989), Beck v. Ohio, 379 U.S. 89 (1964), and Bell v. Wolfish, 441 U.S. 520 (1979). The decisions by the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 8 (1985) deal with "reasonable force."

The Graham Standard is one of the ways to determine the place of policy. "Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it" (U.S. Supreme Court, Graham v. Connor, 490 U.S. 386, 396, 1989). In Graham v. Connor:

Petitioner 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. Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed Berry's car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. Respondent backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham's condition. During the encounter, Graham sustained multiple injuries. He was released when Conner learned that nothing had happened in the store.

Graham filed suit in the District Court under 42 U.S.C. § 1983 against respondents, alleging that they had used excessive force in making the stop, in violation of "rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." The District Court granted respondents' motion for a directed verdict at the close of Graham's evidence, applying a four-factor test for determining when excessive use of force gives rise to a § 1983 cause of action, which inquires, inter alia, whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.

a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected. Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right. (Pp. 490 U.S. 393-394).

(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard (Pp. 490 U.S. 394-395).

(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation (Pp. 490 U.S. 396-397).

(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper Fourth Amendment analysis. The suggestion that the test's "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances is rejected. Also rejected is the conclusion that, because individual officers' subjective motivations are of central importance in deciding whether force used against a convicted prisoner violates the Eighth Amendment, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the Fourth Amendment. The Eighth Amendment terms "cruel" and "punishment" clearly suggest some inquiry into subjective state of mind, whereas the Fourth Amendment term "unreasonable" does not. Moreover, the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions (Pp. 490 U.S. 397-399).

The Supreme Court protects an officer's right to use force, especially when making an arrest of criminal suspects. Arrests and investigations are "seizures" of persons and property, so are governed by the Fourth Amendment. However, officers must have probable cause and the manner in which they carry out the arrest and search, including the amount of force used, must be "reasonable." Deadly force may be considered "reasonable" when defending a life or when a dangerous suspect is being arrested. But when deadly force is not considered reasonable, what is the appropriate amount of force that an officer can use?

The Fourth Amendment is the standard for "reasonableness," but the definition is subject to debate. An officer must see each individual case from the viewpoint of a rational person, rather than with the 20/20 view which hindsight delivers. The officer makes split-second decisions which at the least are stressful, about how much force to use. The Supreme Court has said that the officer must consider how severe the crime is, whether the criminal poses an immediate threat to the officer and others, and whether the suspect is resisting or evading arrest by fleeing. These factors have been weighed in the courts as determinants when considering how much force to use: severity of the crime, threat to safety, whether the suspect is armed, whether the suspect is aggressively not complying.

When a suspect resists arrest sometimes he or she does so through passive non-compliance or by failing to respond to an officer's commands and even lying down in order to resist being arrested. A force is considered reasonable when the least amount of injury is done to police or others when removing or dispersing lawbreakers. Officers may advise those resisting arrest in a passive, non-compliant manner that pain compliance measures will be used if they do not comply and stand up. The federal courts have found that injuries and pain inflicted by wrist twists and twisting arms, even when resulting in broken wrists, are considered "reasonable force" in these instances, that "...the force consisted only of physical pressure administered on the demonstrators' limbs in increasing degrees, resulting in pain" [25 F. 3d 807 (9th Cir. 1994), cert. denied, 116 S.Ct. 1104 (1995)].

When subjects resist arrest actively, more force may be considered reasonable. Kicking and screaming subjects may be forcibly restrained, even hobbled and handcuffed and placed in a prone position where they cannot injure others. The federal courts have upheld force used to restrain such subjects, stating that it is an objective decision which is reasonable, considering the amount of resistance.

However, when a subject is already restrained and control has been established over the subject, officers may still need to use reasonable force to maintain control and protect themselves and others from danger. Demeaning or distasteful actions on the part of the arrestee are considered just cause to use force in equal measure in order to keep from being demeaned or dirtied.

The amount of force law enforcement officers may use must be "reasonable," according to the Supreme Court, in order to effect investigative detentions or arrests or of suspects. And "reasonableness" must comply with the Fourth Amendment. But even sample cases and illustrations demonstrate amply that "reasonableness" cannot be precisely defined or applied mechanically. To overly simplify and create rigid rules of application for law enforcement makers of police force policy is not possible in the light of the variety of situations. Instructors have to avoid the tendency to turn critical issues into modicums. Trying to clarify terms such as "reasonable" would most likely create inflexible and impractical rules when the officer faces a real situation. Alternatively, carefully crafted guidelines which provide officers a range of various options in which to make split-second decisions regarding a reasonable level of force in tense situations could help a trainee. The practical application of principles in realistic scenarios as well, during sustained training might increase an officer's confidence and skill in making difficult decisions. The right of people to be free from "unreasonable" arrest, searches and seizures must be maintained. On the other hand, it is in the interests of society to keep an effective and active police force, even while protecting those officers performing their duty.

The Federal Bureau of Investigation, another branch of law enforcement, must deal with how much force to use when performing official duties, as well. The FBI's Uniform Crime Report has a yearly report called "Law Enforcement Officers Killed and Assaulted," in which it gives the statistics of FBI officers feloniously killed during the past year. Most of the officers (16 out of 57) killed in 2007 were involved in arrest situations.

Title LXII of the Criminal Code, in Chapter 627, describes justifying the use of physical force by law enforcement officers. Beyond the standard ability to use force to restrain a criminal arrestee, it also addresses defense of the officer or a third person, preventing escape, and being careful not to harm innocent bystanders.

Title LXII (627:5) of the Criminal Code calls for the use of physical force only when it is reasonable. But it also details the precursor to this "reasonable" judgment. The officer has to be defending himself or a third person from the active use of deadly force by the criminal, or be effecting an arrest or preventing the escape from custody of a person whom he believes has committed a felony with the use of force or a deadly weapon. He also has to have made "reasonable efforts" to advise this person of what he is trying to do (effect an arrest) and has told them and they understand upon what grounds he is doing so. There is no justification for the use of force against persons who are innocent or are innocent bystanders.

Section V delineates what a law enforcement officer may do once the criminal is imprisoned in a facility. The use of deadly force is only justified when it is necessary to prevent the escape of a felon. Section VIII emphasizes that the use of deadly force should not be used unless there is apparently no other possible means of effecting an arrest (Title, 627:5).

Federal District Court Judge John Davies, the judge who presided over the second trial of the officers involved in the Rodney King beating, shows us where the problem might be.

Where an officer's initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault guidelines is relatively thin. (U.S. v. Koon, 833 F.Supp. 769, 1993).

Davies demonstrated that the line between reasonable use of force and a criminal beating is very thin. It is either criminal or reasonable. One more hit, one more shove or one more second using a control hold takes an officer over the line from doing a job to becoming a criminal himself.

A diagram of how thin the line may be illustrates the problem is reproduced below:

FORCE

____Reasonable____|____Criminal____?

(Johnson, p. 503)

During the (second) Rodney King officers' federal trial, Officer Lawrence Powell and Sergeant Stacy Koon were found guilty; but only after the L.A. Riots that claimed the lives of 58 people, cost more than a billion dollars, and resulted in 2,000 injuries.

Judge Davies said in his memorandum that only the last six of the total fifty-plus baton strikes by Officer Powell were unreasonable and excessive. He further said Rodney King's facial fractures, head injuries, and his fibula (leg) fracture were part of a reasonable use of force by Officer Powell. The beating became unreasonable only when the officer did not stop striking King, at the very end of the tape, when King stopped resisting arrest.

The incident changed from reasonable to criminal at that point. Many disagree on Judge Davies' conclusion. Some say the beating was excessive right from the beginning blow. A five-second clip of video was played repeatedly on the TV news for weeks following the incident which upset thousands of people and contributed to community unrest and eventual rioting. It was just a small portion of the beating, which lasted over a minute, that Judge Davies subsequently ruled justifiable and reasonable, in that Rodney King was resisting arrest during a certain period of time.

This makes one realize that the public does not perceive and evaluate force as law enforcement and as federal justices do. This difference in perception causes serious problems when the politicians, board members, administrators or elected officials evaluating police force incidents are part of the same community of viewers.

State laws sometimes differ from federal decisions and some police procedures which have been deemed permissible by federal constitutional law are not permitted at all or are of questionable legality under state law.

For instance in the State of New Jersey, state law says that the use of force is not justified unless the officer "makes known the purpose of the arrest" or the officer "reasonably believes that the purpose of the arrest is otherwise known by the person arrested or cannot reasonably be made known to (him/her)." Furthermore, when the arrest is made under a warrant the officer reasonably believes the warrant is valid or does believe the warrant is valid (Limitations, p. 1).

The law goes on to say that the officer must comply with one of the above requirements, but that there are limitations on the degree or amount of force which can be used to effect an arrest. Using deadly force, defined as "force which the actor uses with the purpose of causing, or which he knows to create a substantial risk of causing, death or serious bodily harm," is limited by New Jersey laws and courts. It is unjustifiable unless the officer is authorized to act as a peace officer or is assisting a peace officer and does not believe the "force" he will use will create a risk to innocent people and that the criminal has committed a homicide, a kidnapping, a sexual assault, a criminal sexual contact, robbery, arson, burglary or is attempting to commit one of the crimes mentioned. Furthermore the officer has to believe that he or a third party is being threatened with a deadly force, or that the use of a deadly force will stop the commission of the crime, or that the use of deadly force will prevent the criminal from escaping.

All of the above requirements must be satisfied before a jury in New Jersey can find an officer not guilty of using deadly force in an unacceptable manner. If the person using the deadly force was not authorized as a peace officer or was not assisting a person he or she thought was a peace officer, then the use of deadly force cannot be justified.

In law enforcement, liability for actions and codes is the responsibility of the supervisors and municipalities, so administrators and staff must be constantly aware of the threat of civil liability. Whether law enforcement agencies have responsibly managed and planned the vast array of administrative and operational dynamics is the question raised in lawsuits, when the written policies and training programs are challenged. Supervisory roles and discipline are scrutinized and liability as a result of negligent training and poor supervisor abilities are focused upon in municipal suits. To minimize officer misconduct and mistakes, a systematic, responsible planning for training and oversight must be implemented in every municipality where there is a law enforcement program.

Chapter Four -- What is "Reasonable Force?"

The ability to use force has been given to law enforcement officers, but the term in question is "reasonable." The ramifications of this term will be perused and defined in detail. As used currently, "reasonable" means different forms and extents in the use of force by officers in the line of duty to arrest criminals or defend themselves and others against criminals.

Whether and how law enforcement officers use force and what tools they use in order to subdue criminals by force will be the second aspect of this investigation. It appears that in different circumstances certain tools and defense weapons are used. If, in certain circumstances, certain weapons are out of proportion to the crime and the circumstances in which they are used, then this needs to be investigated.

Whether police officers actually use force (deadly or non-deadly) in the performance of their duty and how much this force is used will be investigated through the careful analysis of criminal victimization data collections. It appears that the use of force is descending and that the public is not reporting the use of force as often in this decade. Emergency Room statistics may be examined, as well, to determine whether the use of force by law enforcement officers has actually been an aspect of public injury.

The U.S. Supreme Court decision in Tennessee v. Garner, 471 U.S. 1 (1985), ruled on whether, after a suspect has been given notice by a police officer of an intent to arrest, and the suspect flees or forcibly resists, "the officer may use all necessary means to effect the arrest." After a Memphis police officer shot and killed Garner after he was told to halt, and he fled over a fence at night in the backyard of a house he was suspected of burglarizing, he was sued by the young man's father. The officer was "reasonably sure" that Garner was unarmed and thought he was 17 or 18 years old and of slight build. The father sought damages under 42 U.S.C § 1983 for asserted violations of his son's constitutional rights. The landmark decision by the U.S. Supreme Court was that an officer is not authorized to use deadly force against an "apparently unarmed, nondangerous fleeing suspect . . . unless . . . The suspect poses a significant threat of death or serious physical injury to the officer or others" (pp. 497 U.S. 7-22).

Apprehending a suspect by the use of deadly force is considered seizure and therefore is subject to the Fourth Amendment's reasonableness requirement. Determining whether such a seizure is reasonable, one must look at the extent of the intrusion on the suspect's rights, balanced against governmental interests in effective law enforcement. Even though the officer had probable cause in seizing the suspect, he may not always do so by killing the suspect. So the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable (pp. 472 U.S. 7-12).

While burglary is serious, a young, slight and unarmed suspect could not have posed a threat to the officer. Neither because the suspect broke into a dwelling at night does it mean that he was dangerous. Using the old "whatever force is necessary" rule to detain a fleeing felon distorts the rule when it is applied to such a case. Felonies are no longer capital crimes and many crimes once classified as misdemeanors or nonexistent, are now felonious. As there was a long-term movement away from the common law rule, especially in police departments, in Tennessee v. Garner that rule is now considered unconstitutional and there is indication that common law such as was practiced in this case hampered effective law enforcement (pp. 471 U.S. 12-20).

As a result of such court decisions and perusal of policies in light of those decisions, many local police manuals are revising their codes to allow for the use of force only within restricted circumstances. The Missoula, MS Police Department Policy Manual reminds officers that:

While various levels of force exist, each officer is expected to respond with no more than that level of force which reasonably appears appropriate under the circumstances at the time to successfully accomplish the legitimate law enforcement purpose in accordance with the law (, p. 4).

Looking at city level surveys of crime victimization and citizen attitudes by the Bureau of Justice Statistics (BJS), the perception of the public concerning whether community policing is effective, compared with statistics of incidents of use of force by police or law enforcement officers reflects that the declining use of force has affected community policing tactics in subduing criminals.

The National Crime Victimization Survey (NCVS) is a valuable resource for finding out how the public views police use of force. Every three years, the Police-Public Contact Survey interviews a sample of the national public to estimate how often they are pulled over in traffic and whether the police use force in their contacts with the public in the performance of their duty. Over 60,000 people, 16 and over were questioned every third year from 1995 through 2005. The results of the survey are found in PDF format and ASCII text, with recent supplements (in 2008) added, online at the U.S. Department of Justice * Office of Justice Programs Bureau of Justice Statistics website. (BJS, 2009).