Use of Force in Law Enforcement: Standards and Policy

Introduction: The Gray Area of Police Force

The controversy surrounding Professor Henry Louis Gates, Jr. — a respected Cambridge professor who happens to be African-American — and Sgt. James M. Crowley, a police officer who arrested him at his home after a neighbor reported a possible break-in, is just one example of the uncertain gray area officers must navigate when deciding whether to use force. When criticized for his mistake, the officer took offense, the exchange became heated, and the incident escalated into a national controversy that reached the White House. President Barack Obama remarked at a press conference that the police had acted "stupidly," turning what began as a local dispute into a matter of national debate. The New York Times observed 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 further notes that training makes the difference between an officer who is thin-skinned and allows offensive language to wound him and one who can ignore 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 readers. In Los Angeles, one officer acknowledged that enduring hostile language was simply part of the job — a person is rarely at their best when confronted by police during a conflict. Officers in Brooklyn offered a different view, stating that they prefer to maintain control of a situation and are reluctant to lose face in public. Still, all the officers agreed that when the officer is himself the source of the conflict, the officer should disengage. One detective observed that an officer cannot arrest everyone who is technically abusive: "you've got to know which battles to fight" (Ibid.).

Law enforcement is one of the most misunderstood professions. The general public both reveres and fears the police officer, and popular media distorts the concepts and duties of law enforcement so thoroughly that it is difficult to separate reality from fiction. From officers' own perspectives, there is also much that is misunderstood about how they view their jobs and the citizens they have sworn to protect. Modern law enforcement agencies are working to dispel myths and misconceptions, offering valuable training and knowledge to new recruits that will help them understand their true mission, their duties, and their responsibilities toward fellow citizens.

To carry out these responsibilities, officers must be trained in the use of deadly weapons and other defensive tools. They also learn proper legal terminology and the problems that misunderstanding that terminology can cause in the community. They learn their legal limits and rights, how to carry out their duties in a lawful manner, and how to document their actions — documentation that can prove invaluable in legal and community proceedings. They also learn how positive interaction with members of the community, the media, and the press can improve their effectiveness.

Reporting on the use of force is one means of managing risk in an officer's duties. Understanding the standards for reasonable force, studying the mistakes of the past, and applying that knowledge to reporting and weapons use is part of every young officer's training. Learning the standards for force reporting and how to prepare compliant reports helps improve officer safety.

New weapons for subduing suspects while keeping officers safe have emerged in recent decades. The Taser is a handgun-sized device that can stun an unruly suspect with 50,000 volts of electricity from up to 18 feet away; although it has occasionally proven lethal, it is classified as a less-lethal weapon. Officers may also deploy a baton, flashlight, stun gun, pepper spray, or mace. Tear gas and rubber bullets are seldom used. Lethal weapons such as rifles and handguns are part of an officer's arsenal to be used only as a last resort. Both lethal and less-lethal devices are frequently misunderstood by the public, and an officer must be aware of community perceptions whenever one of these tools is employed.

During a law enforcement career, it is nearly certain that a question will arise about whether to use any of these weapons and, if so, how much reasonable force is necessary when arresting criminal suspects. Because an arrest and subsequent investigative detentions constitute seizures of persons and property, they are governed by the Fourth Amendment to the U.S. Constitution. In most urban and suburban areas, the use of deadly weapons and force remains a deeply inflammatory issue. If police are still shooting unarmed suspects as frequently as in the past, then new training methods and policy procedures are not working. Enforcement officers must demonstrate probable cause to make a valid arrest, and the manner in which arrests are carried out must be not only justified at their inception but also executed with "reasonable" force (Hall, p. 1).

The word "reasonable" recurs throughout all courts of law, since the Constitution and related codes state that force may be used only when constitutionally reasonable — to arrest suspects considered dangerous or to defend life when necessary. The Fourth Amendment's standard of "reasonableness" is deliberately not defined with "precise definition"; instead, each individual case must be viewed on its own facts, from the perspective of a reasonable law enforcement officer at the scene, accounting for the reality 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 what level of force is reasonable, the Supreme Court has held that relevant factors include "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).

In decades past, police psychologists attempted to screen out officers at risk for using excessive force through pre-employment identification of violence-prone candidates. However, psychologists serving police departments have complained that they are more often called in to counsel after incidents of excessive force than to prevent them in the first place (Scrivner, p. 1).

A psychological profile for officers at risk for violent behavior has nonetheless been emerging, alongside better behavior monitoring, improved training, and new methods for managing job stress. The profile involves analyzing a candidate's decision-making and problem-solving abilities, as well as the quality of their interactions with others — areas considered critical for effective community policing.

History of the Use of Force in U.S. Law Enforcement

Since the 1960s, police psychologists have held a place within large police forces, quickly expanding their roles beyond screening to broader support services: helping officers cope with job stress, training in human relations and stress management, conducting debriefings after traumatic incidents, performing forensic hypnosis and lie detection tests, and assisting in hostage or barricaded-subject negotiations. Even so, they remained more in demand for supporting officers who used lethal force than for intervening in non-lethal, excessive force situations.

During the 1960s and 1970s, violent contacts with police occurred frequently during anti-war, labor, and civil rights demonstrations — a politically turbulent era. It is reasonable to conclude that excessive force was used during many of these clashes. Deaths and injuries resulted from political confrontations at the 1968 Republican National Convention in Chicago, campus riots at several universities, public demonstrations in cities where racial tensions ran high, and other incidents. At the time, some authorities believed that political movements could be suppressed through the application of police power. Because of a lack of national statistics and police reluctance to release data, the full extent of force used and the resulting casualties is difficult to determine.

A 1994 study by Anthony Pate and Lorie Fridell attempted to measure the kinds and amounts of force used by police departments during the 1960s and 1970s. The most commonly used forms were those least likely to cause injury: restraints or handcuffs and verbal threats. Less frequently used were chemical agents such as Mace, flashlights and batons used as clubs, and police dogs. The least used were deadly force (civilians shot and killed: 0.9 per 100,000 officers), vehicle rammings (1 per 100,000 officers), and woundings by gunfire (0.2 per 100,000 sworn officers) (Law, p. 1).

The Pate and Fridell study was incomplete, however, because not all departments required reporting the use of force — though most did require reporting deadly force. Even without complete statistics, the study found that only 29% of departments reported use of handcuffs, 72% reported using chemical agents, and 82% reported using batons. The definitional problem resurfaced as well: "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 officers, broadcast repeatedly on major television networks, triggered widespread riots and prompted the Justice Department to issue new initiatives. Input was sought from psychologists in the nation's largest cities to identify profiles of officers who might abuse their authority and use excessive force against detainees. The distinction between an officer using force against a free, dangerous suspect and an officer using force against a detained person already incapable of resistance became a crucial point in both the courts and the field.

In 1999, when the World Trade Organization met in Seattle, Washington, police prepared to manage demonstrations peacefully, but the volume of protesters quickly transformed the event into violent clashes. The American Civil Liberties Union later analyzed the event and concluded that bystanders and peaceful protesters had been abused through the use of tear gas and rubber bullets and by violations of civil rights. The police attributed problems to trained agitators who falsely claimed injury, but the public encountered headlines such as "Out of Control: Seattle's Flawed Response to Protests Against the World Trade Organization."

In 2001, a two-year federal investigation revealed that one city's police force had used force in 15% of its dealings with residents and had killed more people per resident during the 1990s than any other large U.S. city. Federal investigators determined that excessive force had been used and that police dogs bit people in 70% of deployments, far above the acceptable rate of roughly 10%. New programs implemented during the investigation reduced the number of people killed by police between 1998 and 2000 by 82%.

In Cincinnati, police facing a federal investigation following excessive force charges and protests cut their complaints from 77 in 1998 to 54 in 1999, and further to 48 in 2000, even as the use of chemical spray increased from 753 to 1,000 incidents over the same period.

In Detroit — then the leader in use of deadly force (0.92 fatal shootings per resident) — lawsuits cost the city $124 million between 1987 and 1999. Recruits and cadets were required to complete 26 hours of training on when and how to use deadly force, up from 16 hours. One officer under investigation (Eugene Brown) had been involved in nine shooting incidents since 1993, killing three persons and wounding another — more shootings than any other officer on the force.

In New York during the 1970s, police were encouraged to use their nightsticks regularly. In the 1990s, Mayor Giuliani's policy of "zero tolerance" for quality-of-life crimes such as vagrancy and public drinking contributed to a 50% decline in homicides — but at a cost: 80 persons died at the hands of police during Giuliani's first term, and the city paid $100 million settling police misconduct complaints. In 2001, complaints for use of force, discourteous conduct, abuse of authority, and offensive language rose by 4%, with half of all complaints filed by African-Americans. Since then, efforts to diversify the force have been made, and Police Commissioner Safir credited improved educational requirements and a higher minimum age for new recruits with a 23% reduction in excessive force incidents.

In 1994, the Justice Department commissioned a study to identify officers likely to use excessive force in high-stress situations. The commission engaged psychologists who had worked with police departments for many years — a quarter of them as salaried employees of local forces — to recommend how to predict, prevent, and remedy excessive force. Multiple determinants of excessive force were identified, which complicated pre-employment screening for behavioral predictors. Five psychological profiles were presented, each describing an etiology of unstable personality:

1. Officers with personality disorders placing them at chronic risk.
2. Officers whose prior job-related experiences (such as justifiable shootings or other traumatic events) placed them at risk for reasons distinct from category one.
3. Officers who showed problems early in their careers — young, inexperienced officers seen as "hotdogs" who display immature responses.
4. Officers who developed inappropriate patrol styles through training that encouraged heavy-handed and controlling behavior.
5. Officers with situational personal problems — those experiencing difficulties at home or at work that caused them to temporarily feel they were losing face or status (Scrivner, p. 10).

These categories range from untrainable (category one) to increasingly correctable (categories two through five), depending on how deeply ingrained the habits have become. The longer officers are permitted to exhibit problematic behavior, the harder it becomes to change — and in an era of public accountability, some officers may not be able to adapt to the community-oriented model now expected of law enforcement.

Good training can defuse volatile situations that might otherwise cause lasting community damage or physical injury. When officers have only seconds to respond to dangerous and unpredictable circumstances, training can make the difference between a proper and an improper response. Sometimes the use of force or deadly force will be unavoidable, but the officer has both a duty and a legal right to "use appropriate means, including force" when protecting themselves and others (Title LXII: 627).

A July 2009 news release from Portland, Oregon reported that a study of the Portland Police Department's use of force found complaints had dropped by 58% since 2004, crediting the decline to improved oversight of force during the performance of duty. An April 2007 review had recommended better management of force incidents and a reduction in complaints. Police Chief Rosie Sizer reported a 72% drop in the rate of non-lethal impact munitions use, with a corresponding decrease in both civilian and officer injuries. 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 30 years ago. In his book A History of Force, James L. Payne argues 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).

Surveying human history across the world and over recorded time, Payne finds a clear trend away from the use of deadly force and violence as a solution to conflict in all kinds of human relationships. He defines force as "deliberate physical action against the persons or possessions of another" (Ibid., p. 20). In America, where citizens are accustomed to news of expanding conflict, many may be surprised to learn that the broader trend is toward diminishing coercion. Payne argues that improved national news coverage makes people more aware of the occasional incidents of violence that formerly went unreported beyond the local level — child abductions, for example, which have actually declined sharply even as they receive national attention. He also suggests that some institutions, such as the Stockholm International Peace Research Institute, have a fundraising incentive to exaggerate the incidence of conflict (Ibid., p. 400).

Payne contends that broad news coverage, by fostering greater human understanding, has gradually oriented people toward peaceful interactions. He notes that once-common violent practices — human sacrifice, religious persecution, the execution of those charged with heresy — are now extinct. Sadism persists but is regarded as an aberration rather than a prerogative of power. He advocates that regulatory tools such as economic regulation, taxation, government licensing, policing of personal conduct, and zoning now replace violent repression, while acknowledging that government must retain the capacity for lawful force (Ibid., p. 241).

Genocide, once the expected outcome of conquest in ancient warfare, is now universally condemned. Only in the most extreme and isolated circumstances does it still occur, as in the Rwandan genocide. The worldwide revulsion against genocide may make such events increasingly rare. Across the sweep of world history, there has been a documented decline in imperialism, political murder, torture, slavery, capital punishment, and violent revolution. Religiously or racially motivated crimes are now classified as "hate crimes" in the criminal code and are no longer tolerated. This broader trend extends to policing: the public now expects its police force to be rational, professional, and even-handed in its dealings with citizens.

When reviewing the literature on the use of force in law enforcement, it is necessary to examine key Supreme Court decisions, including 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 Court's decisions in Tennessee v. Garner, 471 U.S. 1, 8 (1985) also deal centrally with "reasonable force."

Review of Law and Statistics

The Graham Standard is one of the primary means for evaluating police use-of-force 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). The facts of Graham v. Connor are as follows:

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 determined what had happened in the store. Backup officers arrived, 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 Connor learned that nothing had happened in the store.

Graham filed suit in the District Court under 42 U.S.C. § 1983, alleging that respondents had used excessive force in making the stop in violation of rights secured under the Fourteenth Amendment 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 — including whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the purpose of causing harm.

(a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected. Courts must instead identify the specific constitutional right allegedly infringed by the challenged application of force, and judge the claim by reference to the specific constitutional standard governing 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 Fourth Amendment protections — the right "to be secure in their persons … against unreasonable seizures" — and must be judged by the Fourth Amendment's "reasonableness" standard (pp. 490 U.S. 394–395).

(c) The Fourth Amendment "reasonableness" inquiry asks whether the officers' actions were "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 must embody an allowance for the fact that 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 lower courts is incompatible with proper Fourth Amendment analysis. The suggestion that the test's "malicious and sadistic" inquiry is merely another way of describing objectively unreasonable conduct is rejected. Also rejected is the conclusion that, because an officer's subjective motivations are central in Eighth Amendment cases involving convicted prisoners, it cannot be reversible error to inquire into them in Fourth Amendment cases involving suspects or arrestees. The Eighth Amendment terms "cruel" and "punishment" suggest 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 thus protects an officer's right to use force, particularly when making an arrest, while requiring that such force be "reasonable" and supported by probable cause. Deadly force may be reasonable when defending a life or arresting a dangerous suspect, but the appropriate degree of non-deadly force also requires careful judgment. The officer must evaluate the severity of the crime, whether the suspect poses an immediate threat, whether the suspect is resisting or fleeing, whether the suspect is armed, and whether the suspect is actively refusing to comply.

When a suspect resists arrest passively — failing to respond to commands or lying down to prevent being taken into custody — force is considered reasonable when it uses the least amount of injury to remove or disperse the lawbreaker. Officers may warn passively non-compliant suspects that pain compliance measures will be used if they do not cooperate. Federal courts have found that injuries resulting from wrist twists and arm manipulations, even when a wrist is broken, constitute "reasonable force" in such circumstances: "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, greater force may be considered reasonable. Kicking and screaming subjects may be forcibly restrained, hobbled, handcuffed, and placed in a prone position to prevent injury to others. Federal courts have upheld force used in such circumstances as an objective and reasonable response to the level of resistance presented. Even once a subject is restrained, officers may still need to use reasonable force to maintain control and protect themselves and others. Demeaning or threatening actions by a restrained arrestee may justify proportionate force to maintain safety and dignity.

The amount of force officers may use must be "reasonable" under the Fourth Amendment, but as the case law amply demonstrates, "reasonableness" cannot be precisely defined or mechanically applied. Creating rigid rules for every situation is not feasible given the variety of circumstances officers face. Instructors should avoid oversimplifying critical issues into rigid formulas. Carefully crafted guidelines providing officers with a range of options for making split-second decisions — combined with realistic scenario-based training — can build confidence and skill. The right of people to be free from unreasonable arrest and seizure must be protected, while society also needs an effective and active police force.

The FBI's Uniform Crime Report publishes an annual report titled "Law Enforcement Officers Killed and Assaulted," which provides statistics on officers feloniously killed each year. Most of the 57 officers killed in 2007 (16 of them) were involved in arrest situations.

Title LXII of the Criminal Code, Chapter 627, justifies the use of physical force by law enforcement officers beyond simple restraint, addressing defense of the officer or a third party, preventing escape, and the duty to avoid harming innocent bystanders. Title LXII (627:5) requires that physical force be used only when reasonable and sets specific preconditions: the officer must be defending against the active use of deadly force by the criminal or effecting an arrest of a person believed to have committed a felony involving force or a deadly weapon, and must have made reasonable efforts to identify the arrest's purpose. No justification exists for using force against innocent persons or bystanders. Section V limits the use of deadly force in correctional facilities to preventing the escape of a felon; Section VIII emphasizes that deadly force should not be used unless there is apparently no other means of effecting an arrest (Title, 627:5).

Federal District Court Judge Davies, who presided over the second trial of the officers involved in the Rodney King beating, illustrates how thin the legal line can 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).

The line between reasonable use of force and a criminal beating is, in practice, extremely fine — one more strike, one more shove, or one more second of a control hold can move an officer from performing a legal duty to committing a crime.

During the second Rodney King federal trial, Officer Lawrence Powell and Sergeant Stacy Koon were found guilty — but only after the Los Angeles riots that claimed 58 lives, cost more than one billion dollars, and resulted in 2,000 injuries. Judge Davies determined that only the last six of the more than fifty baton strikes by Officer Powell were unreasonable and excessive, holding that King's facial fractures, head injuries, and leg fracture were the result of reasonable force up to that point. The beating became unreasonable only when Powell continued to strike King after King had stopped resisting. Many observers disagreed sharply with this conclusion, arguing that the beating was excessive from the first blow. A five-second clip repeated on television news for weeks following the incident contributed to community unrest and eventually rioting — yet it represented only a small portion of the more than one minute of the beating that Judge Davies subsequently ruled justifiable.

This disparity illustrates that the public does not perceive and evaluate force the same way law enforcement professionals and federal judges do. That difference in perception creates serious problems when politicians, board members, administrators, and elected officials evaluating police force incidents belong to the same community of outraged viewers.

State laws sometimes diverge from federal decisions, and police procedures permitted by federal constitutional law may be prohibited or of questionable legality under state law. In New Jersey, for example, state law holds that the use of force is not justified unless the officer "makes known the purpose of the arrest" or "reasonably believes that the purpose of the arrest is otherwise known by the person arrested or cannot reasonably be made known." Furthermore, if the arrest is made under a warrant, the officer must reasonably believe the warrant is valid (Limitations, p. 1).

New Jersey law further limits the use of 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" — to circumstances where the officer is authorized as a peace officer, does not believe the force will create a risk to innocent people, and the suspect has committed or is attempting to commit homicide, kidnapping, sexual assault, criminal sexual contact, robbery, arson, or burglary. Additionally, the officer must believe that the officer or a third party faces a deadly threat, or that deadly force is necessary to stop or prevent the suspect's escape. All of these requirements must be satisfied before a New Jersey jury can find an officer not guilty of unjustifiable use of deadly force.

In law enforcement, liability for actions and codes is the responsibility of supervisors and municipalities. Administrators and staff must therefore be constantly aware of the threat of civil liability. Whether law enforcement agencies have responsibly managed their administrative and operational dynamics is precisely the question raised in lawsuits when written policies and training programs are challenged. Supervisory roles and disciplinary practices are scrutinized, and liability arising from negligent training and inadequate supervision is a central focus of municipal litigation. To minimize officer misconduct and errors, every municipality with a law enforcement program must implement systematic, responsible planning for training and oversight.

Conclusion

The Cadet Pledge of the Kansas City Police Department says it all. Though the laws and customs regulating police actions have changed considerably, the "old fashioned integrity" embodied in a modern law enforcement officer who is knowledgeable, educated, physically fit, and who exhibits an esprit de corps and pride in his or her unit remains the standard for the exemplary officer of today.