Police Use of Force: Justifications, Gray Areas, and Ethics

Introduction: The Dilemma of Police Force

Police and other protectors of society occupy a precarious position: they are responsible for protecting society, sometimes at the cost of utilizing violence to do so. Violence may, in fact, be too strong a word; the preferred phrase is use of force, a phrase that denotes the use of such force is reasonable and necessary in some moral sense. The OSCE Guidebook on Democratic Policing makes absolutely clear the intense pressure police face in protecting the public while simultaneously following "all laws, constitutions, criminal codes, police acts, and international and national (and human rights) standards in the process." (2006, p. 17)

Many argue, without a full appreciation of the potential for gray areas within the exponentially varied body of scenarios officers face, that the use of force should only be exhibited when there is a clear sense of imminent danger to the life of the police officer or innocent victims of a crime in progress. In other words, if an individual is brandishing a weapon — including but not limited to a gun, a knife, a potentially lethal blunt object, or even a vehicle — and has been asked to relinquish it but refuses, an officer is justified in using force, even to a lethal degree, to subdue the imminent threat of harm to self or others.

This paper argues that the above scenario does justify the use of force, but that it is not the only justification, as police work involves many gray areas. The adoption of a policy allowing the use of force only when there is a perceived threat of injury to an innocent is too simplistic a model for the realities of police work. This argument is developed first by discussing scenarios of apprehension, then by examining the issue of interrogation, and finally by drawing from the literature a clearer sense of the existing rules, regulations, and laws pertaining to the use of force and their moral foundations.

The use of force is most justifiable in a clear situation of direct threat of harm to the police officer and/or an innocent. The use of force is justifiable to gain evidence only in cases where doing so will not elicit extreme harm or potential harm upon the individual. The use of force is not permissible, however, if there is no imminent harm as perceived by the officer, or if such force is extreme in nature — such as torture — in the apprehension, interrogation, or detention of suspects or criminals.

Gray Areas in the Use of Force

The imminent-threat scenario is what a novice sees as the most likely justification for the use of force. Yet this is simply one example that can be dissected into a myriad of gray areas that officers in the field face routinely. What if the weapon is concealed — by the individual or even simply suspected to be lethal by the officer, in a moment of assumed danger and fast movement — but is in fact not a weapon at all? What if the individual is reaching for a suspected weapon to relinquish it, but the officer perceives that they are doing so in order to use it? What if the distance from the suspect is so great that the officer cannot confirm whether the item in question is a weapon, even though it remains within lethal striking range of the officer or another bystander? All of these gray-area scenarios play out almost daily, and officers must be capable of making split-second decisions to save their own life or the lives of others.

Additionally, what if the officer has just given chase or arrives at the scene alone, with no one to corroborate his or her perception of events and his or her moral decision to use force? The officer may be operating on heightened adrenaline as a result of the difficulty faced in attempting to apprehend the suspect. It may be dark, as many violent crimes and pursuits occur at night, outdoors, with backup minutes away. The officer may even harbor an intense emotional desire to apprehend the suspect, even if he or she does not perceive the suspect as an imminent threat to anyone. What if the victim of the crime for which the individual is a suspect is a friend or relative of the officer — or, conversely, if the suspect is a sworn and known personal enemy? What if the apprehension of the suspect will somehow benefit the officer personally or professionally? As the OSCE Guidebook states in rule 24:

Police officers must not allow their private interests to interfere with their public position, as it is their responsibility to avoid such conflicts of interest. They must never take advantage of their position for their private interest or that of their families, close relatives, friends, and persons or organizations with whom they have or have had a relation.

Lastly, some crimes are of a particularly heinous nature and, by virtue of their very character, elicit deeply personal and emotional responses from professional officers who often encounter their consequences on a very intimate level. Such crimes create, through the officers' own humanity, an extreme desire to see that justice is served — and for many incremental split seconds or minutes, the means of delivering that "justice" can lie within the officer's power. It is then left to the officer to follow the codes and conduct of their profession and allow the judicial system to serve its intended purpose, even in the face of great pressure.

In The Ethics of Policing, Kleinig provides a clear sense that precedent has been set for developing limitations on the use of force, yet he also notes that in the seminal U.S. Supreme Court case on the use of lethal force, Tennessee v. Garner, "the Court's language seems to allow that deadly force may be used to apprehend a person who posed a threat while committing the offense, but no longer appears to do so." He continues: "I guess the presumption is that a person who was prepared to use force on a particular occasion will be prepared to use it on some future occasion, and so must be apprehended immediately. It is not clear to me that this claim is empirically justified." (1996, p. 116) This further illustrates yet another gray area, and as Kleinig points out, it is often left to the state, local jurisdiction, or department to further define and regulate use-of-force standards.

The Dirty Harry Problem

In the above cases, and in the many variations of them, the officer is faced with what Klockars calls the "Dirty Harry Problem" — a perceptual conundrum in which the officer believes that almost any means justifies the end, i.e., the apprehension of a suspect, even before that suspect's guilt has been determined.

In his article on the Dirty Harry Problem, Klockars discusses the issue in terms of means and ends, reiterating that police officers are frequently placed in a position where the desired end is morally good, yet the manner in which those ends are achieved is frequently "dirty" — and, one might add, ethically gray. According to Klockars, "dirty" is defined as both "repugnant," in that it offends widely shared standards of human decency and dignity, and "dangerous," in that it breaks commonly shared and supported norms, rules, or laws for conduct. (1980, p. 36)

In other words, if it were anyone but a police officer, the use of such force would be considered criminal — and in some cases, it is even treated as such when committed by an officer. Section 74 of the OSCE Guidebook on Democratic Policing states: "The disproportionate use of force has to be qualified as a criminal offense. Instances of the use of force must therefore be investigated to determine whether they met the strict guidelines." (2006, p. 30) The guidebook also draws a clear distinction between the acceptable "legal" use of force — that is, force that does not violate any laws or regulations and can withstand transparency — and force that would be regarded as illegal.

As Buker points out in his review of three seminal books on police use of force, changes need to be continually made in training, particularly to offer officers alternatives to force, to develop a more universal definition of "reasonable," and to expand methods for collecting data on use-of-force cases beyond the standard officer report. One of the authors reviewed details a reporting system that effectively treats the use-of-force scene as an investigated crime scene, where forensic and testimonial evidence is collected to develop a clear understanding of events as they unfolded. (2005) Some would argue that this approach amounts to the police policing themselves; yet the OSCE Guidebook and many experts would contend that such transparency is necessary for public trust and for reducing opportunities for corruption at every level. (2006) This emphasis on transparency is relatively new to policing, but it reflects positive social change and the gradual development of a clearer shared understanding — among police, their governing agencies, and the public — of what justifiable force actually means.