Reasonable Force and the Law

Reasonable Force as Stated by Law

• Police have the authority to use force for lawful objectives like arrest, serving warrants, and detention per Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007).
• Graham v. Conner, 490 U.S. 386 (1989), established standards for measuring the use of force.
• Lower courts must consider three questions to measure the lawfulness of force:
  • The severity of the crime
  • The immediate threat to safety
  • Whether the suspect was actively resisting or attempting escape
• Courts examining excessive force claims must allow for split-second decisions in tense, uncertain, and rapidly evolving situations.
• The use of force should be measured by what the officer knew at the scene, not with hindsight.
• Courts have refined the Graham v. Connor test over time and consider additional factors
• Courts consider the degree of threat, relative numbers, and strength
• Additional force may be justified when officers are outnumbered or facing powerful suspects per Sharrar v. Felsing, 128 F.3d 810 (3rd Cir. 1997).
• Courts may consider the availability of less-lethal tools, per Tom v. Voida, 963 F.2d 952 (7th Cir. 1992).
• Agencies can't be liable for not purchasing/deploying specific less-lethal tech, per Estate of Smith v. Silvas, 414 F.Supp.2d 1015 (D. Colo. 2006).
• The suspect’s mental health history or impairment level also factors into threat analysis.
• See Krueger v. Fuhr, 991 F.2d 435 (8th Cir.), cert. denied, 510 U.S. 946 (1993); Hunt v. County of Whitman, 2006 WL 2096068 (E.D. Wash. 2006).

Fourth Amendment Standard for Objective Reasonableness

• Graham v. Conner identifies four components for determining objective reasonableness:
  • Objective reasonableness.
  • Judged from a reasonable officer's perspective in a similar situation, not with hindsight.
  • Reasonableness judged by an officer with similar training and experience.
  • It doesn't have to be the same decision another officer would make, but it must be a reasonable option.

Legal Framework for Officer Authority During Arrest

• Subjects knowing they are being arrested must submit and not resist with force or weapons.
• Officers can use force to effect an arrest, prevent escape, and overcome resistance.
• Force must be reasonable, only the amount necessary to overcome resistance, maintain control, and be within agency policy.

Circumstances for Officer Authority to Use Force

• Defendants should not be subjected to more restraint than necessary for arrest and detention.
• Officers may use all necessary means to effect arrest if the defendant flees or forcibly resists, except as provided in NRS 171.1455. (NRS 171.122)

Objective of Using Force

• The ultimate objective when using force is to maintain control of an individual and the situation.
• Officers should only use the force necessary to overcome resistance and maintain control.

Force Options Based on Subject Resistance

• Types of suspect resistance include:
  • Cooperative (no resistance)
  • Passive resistance
  • Active resistance
  • Assaultive
  • Life-threatening
• Passive resistance means no response to commands and no physical resistance.
• Active resistance involves pulling away, running away, and physically resisting.
• Force options include strength to take physical control, control holds, and techniques to direct movement or immobilize a suspect.
• Assaultive behavior is aggressive, combative, or attempting/threatening assault; force options include control holds, techniques, and less-lethal options.
• Life-threatening action like actions likely to cause serious injury or death; force options include firearms or other weapons in defense.

Importance of Training and Practice

• Case law and liability require officers to maintain proficiency in available use of force options.
• POST rules require yearly demonstration of proficiency in perishable skills.

Importance of Effective Communication

• Effective communication can often diffuse potentially violent encounters.
• The goal should always be to gain voluntary compliance.

Legal Standard for Deadly Force

• Tennessee v. Garner (1985) set the legal standard for deadly force based on Fourth Amendment protections.
• Four part legal standard for use of lethal force:
  • Life-threatening escape: when an officer has probable cause to believe a suspect poses a threat of serious physical harm to the officer or others.
  • Life-threatening felony: Suspect threatens the officer with weapon or there is probable cause to believe that he has committed a crime involving the infliction of serious bodily injury
  • Officer must give warning (not shots) before lethal force (if feasible).
  • Necessary to prevent escape: lethal force is permissible if there’s probable cause to believe it’s reasonably necessary.
• Courts require officers to articulate a reasonable fear of imminent jeopardy of great bodily harm or death.

Factors for Sufficiency of Fear

• Fear must be sufficient to excite fears of a reasonable person in similar circumstances.
• Officers can't act under only fear; there must be an overt act separate from the officer's fear.
• Lethal force must be used to save a life or prevent great bodily injury/death.

Law on Justifiable Homicide by Public Officer

• Homicide is justifiable when committed by a public officer, or someone under their command, in these cases:
  • In obedience to the judgment of a competent court.
  • When needed to overcome resistance to legal processes or orders in the discharge of a legal duty.
  • When necessary in retaking an escaped/rescued felon; in attempting lawful arrest; in suppressing a riot/preserving peace; or in protecting against imminent threat to life.

Importance of Documentation

• Objective reasonableness is fact-based
• Reports need facts leading to the decision to use force and the type of force used.
• Documentation of what happened, specifically what was done and why should be completed shortly after the event.
• Documentation includes events leading up to the encounter, the officer's appearance, orders/commands, subject responses, suspect size, officer details, number of people involved, gender, age, suspect strength, fighting skills, physical condition, clothing, demeanor/stance, prior contacts, gang/prison affiliations, weapons, after-action details, first aid, double-lock cuffs, and witness statements.

Agency Liability

• Vicarious liability means agencies are responsible for their officers' actions within the scope of their duties.
• Agencies can be liable under federal civil rights law and sued for negligence due to inadequate training or supervision.

Consequences for Failure to Intervene

• Under the U.S. Constitution, officers who fail to intervene during another officer's unreasonable use of force may face the same level of liability.
• Consequences include criminal charges, civil rights violations, lawsuits, job loss, and deprivation under color of law (civil and criminal).