Evaluating Police Uses of Force

By Seth W Stoughton, Jeffrey J Noble and Geoffrey P Alpert

Evaluating Police Uses of Force provides a critical understanding and evaluation of police tactics and the use of force.
 
Police violence has historically played an important role in shaping public attitudes toward the government. Community trust and confidence in policing have been undermined by the perception that officers are using force unnecessarily, too frequently, or in problematic ways. The use of force, or harm suffered by a community as a result of such force, can also serve as a flashpoint, a spark that ignites long-simmering community hostility.
 
In Evaluating Police Uses of Force, legal scholar Seth W. Stoughton, former deputy chief of police Jeffrey J. Noble, and distinguished criminologist Geoffrey P. Alpert explore a critical but largely overlooked facet of the difficult and controversial issues of police violence and accountability: how does society evaluate use-of-force incidents? By leading readers through answers to this question from four different perspectives—constitutional law, state law, administrative regulation, and community expectations—and by providing critical information about police tactics and force options that are implicated within those frameworks, this book helps situate readers within broader conversations about governmental accountability, the role that police play in modern society, and how officers should go about fulfilling their duties.
 
“Provides a current and complete blueprint of the laws and policies that contribute to persistent inequalities in police violence. This blueprint will be of tremendous value―perhaps especially so―to those who seek to understand the existing system and where they may best intervene in order to reduce these damaging inequalities.”  ―Theoretical Criminology

• Language: English
• Publisher: Open Road Integrated Media
• Release date: May 26, 2020
• ISBN: 9781479803798

Book preview

Evaluating Police Uses of Force

Evaluating Police Uses of Force

Seth W. Stoughton, Jeffrey J. Noble, andGeoffrey P. Alpert

NEW YORK UNIVERSITY PRESS

New York

NEW YORK UNIVERSITY PRESS

New York

www.nyupress.org

© 2020 by New York University

All rights reserved

References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

Library of Congress Cataloging-in-Publication Data

Names: Stoughton, Seth W., author. | Noble, Jeffrey J., author. | Alpert, Geoffrey P., author.

Title: Evaluating police uses of force / Seth W. Stoughton, Jeffrey J. Noble, Geoffrey P. Alpert.

Description: New York : New York University Press, 2020. | Includes bibliographical references and index. | Summary: Evaluating Police Uses of Force is an exploration of how police violence is regulated—Provided by publisher.

Identifiers: LCCN 2019030941 | ISBN 9781479814657 (cloth) | ISBN 9781479833542 (paperback) | ISBN 9781479830480 (ebook) | ISBN 9781479803798 (ebook)

Subjects: LCSH: Police brutality—United States. | Police misconduct—Law and legislation—United States. | Police patrol—United States.

Classification: LCC KF5399 .S76 2020 | DDC 344.7305/232—dc23

LC record available at https://lccn.loc.gov/2019030941

New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books.

Manufactured in the United States of America

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Also available as an ebook

To my wife, Alisa, for her constant love and support. To my children, Aidan and Lorelei, for inspiring me to be better than I am. And to my parents, John and Ava, for teaching me to care passionately, to question intensely, to explore fearlessly, and to read well.

I miss you, Dad.

—Seth Stoughton

To my daughters, Elizabeth and Patricia. Both of you are beautiful, loving, and brilliant. I will forever be in awe of you, and I love you both deeply.

—Jeff Noble

To my children, Angie, Amanda, Ryan, and Cory, and brother Spencer who have all challenged and tested me. To Peter Martin, Ian Stewart, Damien Hayden, and Bob Gee from the Queensland Police Service, and to Mark Hiron from New South Wales, who have all been mentors and friends. To Paul Mazerolle, who gave me the opportunity to conduct research in Australia. I would be remiss if I didn’t thank Jeff Rojek, Scott Wolfe, Kyle McLean, Justin Nix, Louise Porter, and Justin Ready for being such great work partners.

—Geoff Alpert

Contents

List of Figures and Tables

Foreword by Arif Alikhan

Introduction

Part I. Standards for Evaluating Police Uses of Force

1. The Constitutional Law Standard

When Does the Constitutional Standard Apply?

What Does the Constitutional Standard Regulate?

How Does the Constitutional Standard Apply?

Conclusion

2. The State Law Standard

When Does the State Law Standard Apply?

What Does the State Law Standard Regulate?

How Does the State Law Standard Apply?

Conclusion

3. The Administrative Standard

When Does the Administrative Standard Apply?

What Does the Administrative Standard Regulate?

How Does the Administrative Standard Apply?

Conclusion

4. The Community Expectations Standard

When Does the Community Expectations Standard Apply?

What Does the Community Expectations Standard Regulate?

How Does the Community Expectations Standard Apply?

Conclusion

Part II. Police Tactics and Force Options

5. Tactical Considerations

A Conceptual Framework for Analyzing Tactics and Officer-Created Jeopardy

Tactical Concepts

Applying Tactical Concepts

Conclusion

6. Force Options: Tools, Techniques, and Weaponry

Tools

Techniques

Weaponry

Police Canines

Police Vehicles

Conclusion

Conclusion

Taking the Totality of the Circumstances Seriously

From Resistance to Threat

The Need for Better Information

Summing Up

Acknowledgments

Appendix of State Laws

Notes

Index

About the Authors

List of Figures and Tables

Figure 1.1. Simplified Spectrum of Reasonableness

Figure 1.2. Analytical Spectrum of Reasonableness

Figure 2.1. Lethal Police Shootings per 100,000 People (2015–2018)

Table 3.1. Administrative Regulatory Considerations

Figure 3.1. Conceptual Force Matrix

Figure 3.2. Early Los Angeles Police Department Force Continuum

Figure 3.3. Federal Law Enforcement Training Center (FLETC) Use-of-Force Model

Figure 3.4. (Former) Florida Force Matrix

Figure 3.5. Protective Safety Systems Transactional Use-of-Force Paradigm

Figure 3.6. Queensland Police Service, Situational Use-of-Force Model (2016)

Figure 3.7. Royal Canadian Mounted Police Incident Management Intervention Model

Foreword

Arif Alikhan¹

With controversial police shootings capturing the attention of the nation, it has never been more important to understand when and how a police officer may use force. As a senior police executive, however, I experienced firsthand the difficulty of explaining the law and different policies regarding when an officer may use physical force against a suspect.

There are 18,000 different police agencies in the United States, each following different administrative policies, operating within different judicial districts, and serving different communities with varying expectations. This has resulted in a patchwork of legal interpretations, policies, and community standards that often conflict and can cause significant confusion among police professionals and the public.

Law enforcement experts Seth Stoughton, Geoffrey Alpert, and Jeff Noble provide a comprehensive explanation of the many factors that surround a police officer’s decision to use physical force and provide useful guidance on how to navigate the complexities of the law and policy in police uses of force. In these pages, they use their diverse experiences as leading police researchers, accomplished authors, and former police officers to simplify the complex concepts into understandable and useful explanations of when and how an officer may use force to apprehend a suspect, to defend themselves, or to defend others.

I have had many spirited debates with these learned gentlemen and greatly value their important insights about the gaps and contradictions in the law. Unlike most books on uses of force, they go beyond the typical constitutional analysis and discuss the impact of dozens of state laws and thousands of administrative policies that influence the subject. Most importantly, they address how community expectations often differ, and even conflict, with what the law allows and policies define as permissible.

{~?~PG:Arif Alikhan is a Senior Fellow at the University of Chicago Crime Lab and the former Director of Constitutional Policing and Policy at the Los Angeles Police Department (LAPD). He previously served as the Deputy Executive Director for Homeland Security, Law Enforcement, and Fire/EMS at Los Angeles World Airports, as a Distinguished Professor of Homeland Security and Counterterrorism at the National Defense University, as the Assistant Secretary for Policy Development at the Department of Homeland Security during the Obama administration, as a senior advisor to Attorneys General John Ashcroft and Alberto Gonzalez, and as an Assistant United States Attorney. The opinions expressed above are his personal opinions and do not necessarily reflect the opinions of the University of Chicago and its affiliates.

Deciding whether to use physical force is among the most serious and consequential decisions a police officer can make. The decisions are often made during intense and uncertain circumstances. They are also captured on video for the world to see and pass judgment on, often with little or no understanding of the law governing these interactions or the policies that guide officers’ decisions. This important book, long overdue, will help police executives, legal professionals, researchers, and the public understand, assess, and have the ability to explain when and how a police officer may use force to protect the communities they serve.

Introduction

What does a police officer in the United States look like? There is no way for us to foresee, as we write this months or years before you read it, the details of the officer you’re imagining right now. They may be tall or short, male or female, white or black, uniformed or in plainclothes; there are an infinite number of variations. Yet we can confidently predict that the officer you’re picturing is armed.¹ At a minimum, they have a handgun, but they may be wearing a duty belt or tactical vest outfitted with pepper spray, a baton, or a TASER; they may be carrying a shotgun, a rifle, or a transparent shield and a riot baton. You may even have pictured an officer using force, mentally replaying one of the many videos of police shootings or other uses of force that have been prominently featured in the news.

The fact—and we are confident enough in our predictions to call it a fact—that you pictured an armed officer demonstrates what academics and officers themselves have long recognized: the use of physical force is inherent in and inseparable from modern policing.² How could it be otherwise? Society invests officers with the legal authority to invade privacy and to restrict freedom, to deprive people of their basic liberties. Predictably, people do not always respond well to being deprived of those basic liberties. But police authority is backed by the threat of state-sanctioned violence; if an individual resists an officer’s attempts to exercise their authority, the officer may well use physical force to fulfill their duties.

Police violence has proven to be a challenging and divisive issue in the United States, although the use of force, especially the use of deadly force, is relatively rare. Indeed, the vast majority of police–citizen encounters are insipid interactions that do not involve problematic coercion or result in complaints. According to the best available data—which admittedly is not as robust as we would prefer—only a small percentage (1.8 percent) of the more than fifty million police–civilian contacts every year involve a threat or actual use of force. Even in the context of interactions that involve the types of inherently coercive police action that are most likely to elicit civilian resistance, such as arrests, violence is the exception, not the rule. Studies have estimated that out of some thirteen million arrests, only about 4 percent involve the use of more force than necessary to handcuff a compliant subject.³ And on those occasions when officers do use force, the vast majority of incidents involve low-level violence with little potential for injury: grabbing, shoving, and the like.

Why, then, should society care about the use of force? There are at least two different answers to that question: one philosophical, the other pragmatic. Philosophically, the use of government violence against civilians runs counter to our most basic democratic notions of individual freedom, liberty, security, and autonomy. Our system of democratic republicanism is premised on the belief that a non-tyrannical government can rule only with the consent of the governed. A sophisticated civilization must balance individuals’ interest in liberty and privacy against society’s interest in order and security, but if our democratic ideals are to mean anything that balancing must be carefully managed. The tension between the need for governmental infringement on freedoms and the need for protection from governmental abuse is particularly acute in the context of policing. Police agencies and officers are the paradigmatic public servants, the self-professed Thin Blue Line that stands between ordered society and criminal anarchy. Each use of force against civilians presents, at a microcosmic scale, a scenario that implicates longstanding fears of tyranny and government overreach. On a purely philosophical level, then, understanding and properly evaluating police uses of force against civilians is critical to properly maintaining the dynamic tension between security and liberty.

Pragmatically, there are several reasons to take police uses of force seriously. First, such incidents result in the injury or death of thousands of community members every year. Although the proportion of police–civilian interactions that involve violence are quite modest, the small percentage masks large absolute numbers. Even if force is used in only 1 percent of police–civilian encounters, the fact that there are, on average, more than sixty million such encounters every year would mean that there are at least 600,000 uses of force every year. That’s more than one every minute in every hour of every day of the year. Most of the time, officers are not using force to defend themselves: over the last ten years, there have been, on average, about 56,000 incidents every year in which an officer was assaulted (just over a quarter of those assaults resulted in some type of injury to the officer). That leaves at least 544,000 occasions each year in which officers used force for reasons other than self-defense. That breaks down to almost 1,500 every day, which is still more than one per minute. Those numbers are at the low end of the spectrum based on data from the Bureau of Justice Statistics; if more than 1 percent of police–civilian encounters involve the use of force or if there are more than sixty million encounters in a given year, the absolute numbers may be significantly larger. The potential number of use-of-force incidents, then, make this an issue of public importance.

The use of force also plays an important role in shaping public attitudes toward government generally and policing more specifically. Police violence is among the most controversial uses of governmental authority. Community trust and confidence in the police is undermined by the perception that officers are using force unnecessarily, too frequently, or in problematically disparate ways. Over time, negative perceptions of the police can reduce civilian cooperation, making law enforcement and order maintenance significantly more difficult. Public distrust can also create dangerous situations for officers and community members. The use of force not only undermines public trust over time, it can also serve as a flashpoint, a spark that ignites long-simmering community hostility. Use-of-force incidents can have lasting reverberations, from the televised abuses of the Civil Rights Era to the beating of Rodney King in 1991, and from the shooting of Amadou Diallo in 1999 to the shooting of Walter Scott in 2015. Throughout the country, police uses of force have instigated violence or civil unrest.⁴ Of the ten most violent and destructive riots in United States history, fully half were prompted by what were perceived as incidents of excessive force or police abuse.⁵

The central role that use-of-force incidents play in shaping public perceptions of policing is all the more critical in light of the limited information that most community members have about policing and the use of force. Traditional and social media shape public perceptions, but that coverage can lead to misperceptions about the frequency and substance of use-of-force incidents. Citizens often learn about police behavior from entertainment media—television, movies, video games, and so on—but such portrayals are rarely accurate. Even when news media provides more accurate reports of how force is used, the public can be left with an incomplete or inaccurate understanding about the use of force. During oral argument in a Supreme Court case involving officers who shot at a fleeing vehicle, for example, the late Justice Antonin Scalia asserted that officers shoot at moving vehicles all the time; this highly questionable statement was predicated not on data from academic studies or specific police agencies, but rather on movies about bank robberies.⁶

In the aggregate, reporting on police uses of force naturally focuses on what are viewed as the most newsworthy events: particularly officer-involved shootings, brutal violence, or egregious misconduct. Because of a cognitive bias known as the availability heuristic—which causes us to make judgments about the frequency of an event based in large part on our awareness of other similar, recent, and significant events—such reporting can contribute to the false impression that such events are far more frequent than they actually are. A recent, high-profile incident of police violence in the news, then, can lead people to conclude that similar incidents of police violence are quite common even when that may not be the case.

Public misunderstandings about the use of force can also affect the way individual incidents are perceived. News reports, especially preliminary reports, are of limited value: inevitably, there is a significant amount of information the reporters—and, by extension, the public—simply do not have at the time. Many viewers, however, will come to a firm conclusion based on partial information, unconsciously relying on a host of cognitive biases to fill in the gaps. Worse, many viewers will have a high degree of confidence in their conclusions. As a result, a use-of-force incident may be judged by thousands of people who develop strong opinions based on weak and incomplete evidence.⁷ And even when there is good information about a particular incident, most people simply do not apply any rigorous analytical framework to evaluate the use of force. That matters because police violence is just that: violence. Even when we are quite comfortable with the abstract proposition that officers use force, the actual use of force can be aggressive, brutal, and ugly. When force is, or appears to be, excessive or unnecessary, it can create the perception that a government official charged with ensuring public safety turned on a member of the public they are sworn to protect.

These philosophical and pragmatic rationales make it incredibly important for officers to use force appropriately and for officers and agencies to be held accountable when they do not. This book poses and responds to a question that is central to police accountability: how does society evaluate the propriety of an officer’s use of force? That is, how do we tell whether any given use of force appropriately balanced the subject’s interest in freedom against the social interests in order and law enforcement? We identify four different answers to that question, four evaluative standards that can be—and are—used in different contexts. Chapter 1 provides a detailed roadmap of constitutional standards, where the propriety of police force is regulated by the Fourth Amendment’s prohibition of unreasonable seizures. Chapter 2 supplies an overview of state law, which sets out criminal and civil standards. Chapter 3 explores the administrative standards that individual police agencies create through policy, procedure, and training. Chapter 4 discusses what we term the community expectations standard, an important, if informal, way to evaluate police uses of force through the lens of public expectations. In each chapter, we engage in a detailed discussion of one relevant standard, identifying the contexts in which that standard applies, describing the precise behaviors that each standard regulates, and exploring how each evaluative standard is used to assess the propriety of any given use of force.

In the final two chapters, we provide key information about the choices police make in use-of-force situations; understanding these choices is essential for applying any of the evaluative standards. In chapter 5, we discuss police tactics: the decisions that officers make and the actions they take as they approach and interact with civilians, both of which can contribute to whether and how force is used. In chapter 6, we explore the various ways officers use force, describing the role various techniques, tools, and weapons can play in use-of-force situations, and highlighting the continued development of tools and technologies that may shape when and how officers use force.

These discussions about the evaluative standards, and the additional information that is necessary to apply those standards effectively, are situated within a broader conversation about governmental accountability, the role that police play in modern society, and how officers should go about fulfilling their duties. We acknowledge the value of, but do not here explicitly engage in, those more extensive themes. This book does not claim to resolve, or even to address, all of the problems in policing; indeed, our focus on the evaluative frameworks that can be applied to use-of-force incidents is quite limited. This book explores how individual use-of-force incidents are evaluated, but we do not here examine how the use of force is or could be evaluated in the aggregate. That is to say, we explore different answers to the question, How can society assess a particular shooting? but not to the broader question, How can society assess police shootings in the United States taken as a whole?

We are cognizant that our focus on individual incidents excludes controversial and important aspects of police uses of force, including, for example, the racial dynamics of the criminal justice system generally, of policing, and of the use of force specifically. There is good reason to think that the use of force is not evenly distributed along racial lines. In a survey administered by the Bureau of Justice Statistics, 1.3 percent of white respondents reported being subjected to a use of force, compared to 3.3 percent of black respondents, which suggests that there exists, at a minimum, a racially disproportionate perception that officers have used force. While force was perceived as necessary by roughly the same percentage of blacks (32 percent) and whites (32.4 percent), the perception that force was excessive was reported more often by blacks (59.9 percent) than whites (42.7 percent). Further, data gathered by the FBI and various media outlets suggests that this is not just a matter of perception, at least in the context of officer-involved homicides: 13.4 percent of the US population, but more than 30 percent of individuals killed by police, are black.

These observations are deeply troubling, implicating longstanding concerns about racial equality—or, more accurately, the lack thereof—in the United States and the manner in which policing as an institution has perpetuated inequity, both historically and today. They give rise to a series of challenging sociological quandaries. There is, of course, the very real possibility that individual officers act out of racial animus on at least some occasions. The picture is almost certainly more complicated than that, though. It is almost certainly the case that if officers are more likely to interact with black individuals, then, all other things being equal, we would expect them to use force at a higher rate against that population group. That, however, does nothing to explain why officers are more likely to interact with black individuals. The answer is likely systemic, reflecting the correlation between urban poverty and crime and a long, distressing history of race-conscious, and often overtly race-motivated, choices relating to education policy, housing policy, and economic policy, not to mention criminal justice policy. The looming role that race has played, and continues to play, in shaping how we define a threat or threatening behavior undoubtedly affects police uses of force. This is true at the wholesale level, where the identification of certain substances, but not others, as illicit drugs or the distinction between drugs and hard drugs is rife with racial overtones; consider the Federal Sentencing Guidelines’ 100:1 disparity—later reduced to an 18:1 disparity—between crack cocaine and powder cocaine, in which possession of one gram of crack (a drug associated primarily with black users and dealers) was punished at the same severity as one hundred grams of powder cocaine (a drug associated primarily with white users and dealers). Or consider the difference in the law enforcement-oriented response to the crack cocaine epidemic of the 1980s and early 1990s, when the drug was largely confined to poor, inner city (read: predominantly black) communities and the public health–oriented response to the modern heroin epidemic, which has spread into middle- and upper-class suburban (read: predominantly white) communities.

It is impossible to entirely disaggregate the social dynamics of race and class from policing and the use of force, and we do not attempt to do so. We do, however, consciously avoid tackling head-on such complex and complicated issues: that discussion is very much needed, but it is simply outside the scope of what we set out to do in this book.

To reiterate, our focus in this book is narrow: we seek to explore how individual police uses of force are evaluated. Nevertheless, this book is both necessary and a significant contribution to public and academic debates about police violence. Police uses of force are the single most visceral and divisive aspect of contemporary policing. Police kill almost three people a day,⁸ and people have responded with protests, civil unrest, and horrifying ambushes that have resulted in the murder of police officers in Texas, Pennsylvania, Louisiana, and elsewhere. And yet, the public conversation about police uses of force has focused almost exclusively on whether individual officers who used excessive force in individual incidents should be criminally punished, without much, if any, broader discussion about how to determine whether the force used was excessive.

This is even more remarkable in light of the observation that the use of force by police has been studied for more than fifty years. There was only limited academic interest in the subject until the 1960s, when scholars like James Fyfe began conducting research and building a budding literature. Even then, the use of force was not the subject of sustained academic attention until 1980. That year, interest was energized by the publication of volume 452 of The Annals of the American Academy of Political and Social Science; that volume was a special edition that brought to the attention of a broad academic community the nature and scope of existing academic work on use-of-force issues.⁹ Since then, there have been marked improvements in the academic literature.¹⁰ Today, the use of force by police is an accepted topic for researchers and practitioners alike. Indeed, a volume of the Annals to be published in 2020 will be dedicated to research on fatal police shootings. These important research questions continue to develop, and interested scholars and practitioners investigate them and report their findings,¹¹ but scant attention has been paid to the analytical topics we address in this book: the various evaluative standards for use-of-force incidents and the tactics and tools of police violence.

Part I

Standards for Evaluating Police Uses of Force

In August 2014, an officer working for the municipal police department in the then-little-known St. Louis suburb of Ferguson, Missouri, shot and killed Michael Brown, an unarmed, black 18-year-old. The St. Louis County Prosecutor, Robert McCulloch, convened a grand jury to determine whether there was sufficient evidence to indict the officer. It was, by any measure, a complicated undertaking. The jurors met for months, heard hours of testimony from dozens of witnesses, and reviewed thousands of pages of documents. They also learned about how they should determine whether or not to indict the officer. The grand jury was first provided with a copy of a state statute that authorized the use of deadly force in certain circumstances, including to prevent the escape of a fleeing felon. Later, the grand jury was told about a Supreme Court case that held that officers can use deadly force only when they have probable cause to believe that the subject presents an imminent threat of death or great bodily harm.

What, then, should the grand jury have done if it concluded that, at the time of the shooting, Michael Brown was a fleeing felon, but did not present an imminent threat of death or great bodily harm? Applying the state statute, the officer’s actions were lawful, and an indictment would be unwarranted. Applying the Supreme Court case, the officer’s actions were unlawful, and an indictment would be entirely appropriate.

As that example demonstrates, the standard that is used to analyze a use of force is of tremendous practical importance. So which standard is the right one? Confusingly, there is no one right standard; it depends on context. More confusingly, there are at least four different standards that can be used to evaluate an officer’s use of force in the United States: the constitutional standard, the state law standard, the administrative standard, and the community expectations standard.

The first three standards—constitutional law, state law, and administrative regulations—each play a formal role in the evaluation of use-of-force incidents. When an officer’s use of force violates one or more of those standards, sanctions or remedies may be imposed. An officer who violates an administrative regulation, for example, can be disciplined or terminated by their agency, while a violation of the state or constitutional standards can result in civil liability or a criminal conviction.

For the other standard—community expectations—violations do not result in formal remedies. However, those standards remain important because violations can have significant, if informal, consequences: an officer, agency, or policing itself, as an institution, may be subject to public condemnation. In July 2017, for example, Minneapolis Police Chief Janeé Harteau resigned less than a week after Officer Mohamed Noor controversially shot Justine Ruszczyk, a woman who had called the police to report a potential assault near her home. Chief Harteau did not resign because the shooting was unconstitutional, illegal, or contrary to agency policy—at that early point, there had been no formal determination about any of those things. Instead, her resignation was driven in large part by the public pressure that resulted from the perception that the shooting had fallen far short of what community members expected. Despite its informality, community expectations may be the most potent of the various evaluative standards because, ultimately, they exert lasting influence on the other, more formal standards.

As that brief discussion suggests, the standards themselves are distinct, but they are all perfectly valid. They are not, however, perfectly interchangeable. The standards are context dependent. That is, the standard that we apply depends on the question that we are seeking to answer and the remedy that we may impose. Let us return to the grand jury in the Michael Brown shooting; should the prosecutors have instructed the jurors about the state standard or about the constitutional standard? The most obvious answer, one given by a number of legal scholars and other pundits at the time, is that the prosecutors should have instructed the jury about the constitutional standard. The Constitution sets the minimum level of protection, after all, so to the extent that state law purports to authorize the use of force in situations in which it would be constitutionally prohibited, it would appear that the state law was invalidated. That answer may be obvious, but it is also incorrect. The grand jury was called upon to determine whether there was probable cause to believe that, under state law, the officer’s actions were criminal. In that context, the constitutionality of the officer’s actions is irrelevant. It may be counterintuitive, but a state is not required to criminalize an unconstitutional use of force (nor, for that matter, is a state prohibited from criminalizing constitutional uses of force).

Understanding the evaluation of police uses of force, then, requires one to appreciate that any given use of force is subject to different evaluative standards. The first step in evaluating an incident is to identify which standard is being applied, what behavior that standard regulates, and how that standard regulates the use of force. The chapters in part I of this book provide a comprehensive look at those issues, with each one dedicated to a discussion of a particular standard. Chapter 1 provides a detailed roadmap of the constitutional standard that applies most frequently in federal court. Chapter 2 outlines the state law standard that applies to both civil and criminal claims. Chapter 3 explores the administrative standards that individual police agencies create through policy, procedure, and training. Chapter 4 is dedicated to a discussion of community expectations, which are less formal, but no less important for evaluating use-of-force incidents.

1

The Constitutional Law Standard

Police officers, like all government officials, are subject to the limitations imposed by the Constitution of the United States. The body of the Constitution largely sets out the structure of government: Articles I, II, and III lay out the framework for the legislative branch, the executive branch, and the judicial branch, respectively. Article IV explicates the requirements for state governments. Article V sets out the procedures by which the Constitution can be amended. Article VI establishes the Constitution as the supreme Law of the Land. Finally, Article VII governs ratification of the Constitution.

The Constitution was first ratified in Delaware, on December 7, 1787, and, pursuant to Article VII, took effect on June 21, 1788, when New Hampshire became the ninth state to ratify it. Since it was first proposed and ratified, the Constitution has been amended twenty-seven times. The first twelve amendments, which include the ten amendments known as the Bill of Rights, were adopted on September 25, 1789, and were instrumental in convincing several colonies to ratify the Constitution and become states.

The Constitution, particularly the Bill of Rights and subsequent amendments, is centrally concerned with public and personal freedoms, which it protects by recognizing what one federal court referred to as negative rather than positive liberties.¹ In short, the Constitution protects individual rights by limiting the ways the government can infringe on them, but generally does not lay out affirmative obligations that government officials must meet.²

Prior to 1989, there was no clearly defined constitutional standard under which the use of force was analyzed. Federal courts took different approaches, evaluating claims that officers’ uses of force violated constitutional rights by applying the Fourth Amendment’s prohibition of unreasonable seizures, the Eighth Amendment’s prohibition on cruel and unusual punishment, and the Fifth and Fourteenth Amendments’ prohibition on deprivations of liberty without due process of law. In 1985, the Supreme Court applied the Fourth Amendment in the context of a police shooting,³ and, in 1989, the Court settled the issue by holding that the use of force against free citizens—that is, individuals other than incarcerated inmates—was to be analyzed under the Fourth Amendment.⁴

As it relates to police uses of force, the relevant text of the Fourth Amendment reads as follows: The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated. In the body of this chapter, we will examine when this standard applies, what it applies to, and how it applies.

When Does the Constitutional Standard Apply?

The constitutional standard applies in at least three different ways: in civil litigation filed by a private plaintiff (or a class of plaintiffs) against an officer or agency; in civil litigation filed by the Department of Justice against an agency; and in federal criminal prosecutions against individual officers. Consider the following examples: A plaintiff files a lawsuit in federal court, alleging that an officer used excessive force in the course of making an arrest. A federal prosecutor files criminal charges against a police officer, alleging that the officer’s use of force during the arrest constituted a crime. Attorneys in the Civil Rights Division of the US Department of Justice file a lawsuit alleging that officers at the police department have engaged in a pattern and practice of violating constitutional rights by using excessive force. In each case, the investigators, lawyers, judges, and jurors will be called upon to assess the use of force by applying the constitutional standard.

Civil Excessive Force Litigation under 42 U.S.C. § 1983 and Bivens

When an officer uses force against an individual, the subject can file a lawsuit alleging that the officer violated the Fourth Amendment. The Fourth Amendment itself sets out the substantive right to be free from unreasonable seizures, but it does not provide what is known as a cause of action—the basis of the legal argument that a plaintiff makes when filing a lawsuit. Instead, federal civil lawsuits are authorized by a federal statute and a Supreme Court case.

The federal statute, 18 U.S.C. § 1983, states, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

That statute applies to state and local officials, including police officers, but not to federal officials. A Supreme Court case, Bivens v. Six Unknown, Named Agents of Federal Bureau of Narcotics,⁵ held that federal officers were similarly subject to liability for constitutional violations, including Fourth Amendment violations. A complete discussion of the fascinating history and many nuances of § 1983 and Bivens is beyond the scope of this book. For our purposes, it suffices to say that, together, they potentially render liable any police officer who uses or abuses their authority in ways that violate an individual’s constitutional rights, including uses of force that violate the Fourth Amendment.

Confusingly, a plaintiff can bring a § 1983 claim—that is, a claim brought under federal law—in either federal or state court.⁶ Either way, the court will have to apply the constitutional standard to determine whether the officer’s actions violate the Fourth Amendment. The plaintiff in such a suit, if successful, can ask the court to award different remedies. The three most common remedies are compensatory damages, punitive damages, and injunctive relief.

Compensatory damages are a monetary payment intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.⁷ Compensatory damages are awarded to cover the costs of physical injuries and psychological injuries as well as tangible harms (such as damaged property) and intangible, but quantifiable harms (such as lost earnings).

Punitive damages are intended to punish a defendant’s misconduct and deter the defendant, and others in the defendant’s position, from engaging in such actions in the future. Not every case in which compensatory damages are awarded will also result in punitive damages; the Supreme Court has strongly suggested that courts can award punitive damages only when an officer’s conduct is malicious, intentional, or callously indifferent to the plaintiff’s rights.⁸

In addition to monetary awards from compensatory or punitive damages, a plaintiff may also request injunctive relief. Under certain circumstances, a court can issue an injunction that prohibits an officer or agency from engaging in certain actions (such as an order to not use a particular weapon or technique) or, less frequently, an injunction that requires an officer or agency to engage in certain actions (such as an order for officers to go through particular training or adopt a particular use-of-force policy).

In short, 42 U.S.C. § 1983 and Bivens permit a private plaintiff—or, in rare cases, a class of plaintiffs—to bring a civil suit against local, state, or federal officers alleging violations of their constitutional rights, including the Fourth Amendment right to be free from unreasonable seizures.

Pattern and Practice Litigation under 42 U.S.C. § 14141

The Attorney General of the United States is authorized by federal law to sue police agencies that engage in a pattern or practice of constitutional violations. The statute, 42 U.S.C. § 14141, reads as follows:

(a) Unlawful conduct. It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

(b) Civil action by Attorney General. Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

Procedurally, the Department of Justice first conducts