Excessive Police Force Laws and Standards in California

Introduction and Scope

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 conducts 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).

Constitutional Standards for Excessive Force

There are reported to be four different standards used to determine what constitutes the use of excessive force on the part of the government. These four standards are "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).

Types of Force and Legal Scrutiny

The work of Burris (2012) states that 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, or for intentionally inflicting pain, their methods come under scrutiny. For example, questions regarding the use of police batons include whether the officers followed procedure, whether they ceased use of the batons once they had subdued the individual, and whether they broke any bones.

Regarding the use of tasers, questions include why the taser was used, whether the person merely verbally became combative or actually posed a threat, how many times the individual was shocked, and whether the individual already had handcuffs on. Regarding the use of pepper spray, questions include why the spray was used, whether it was sprayed at close range into the mouth or nose, and whether the officers let up when the individual "was in obvious respiratory distress" (Burris, 2012, p. 1).

Handcuffs come under scrutiny when an individual has sustained severe facial injuries due to being thrown to the ground or against a wall. Chokeholds, kicks, and takedowns are questioned in some cases, and crowd control measures such as the "indiscriminate use of rubber bullets or tear gas on crowds of protesters" have also occurred (Burris, 2012, p. 1). The legal question 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).