Policies that set clear expectations about the use of force, as well as training in how to reduce and mitigate it, improve public safety and strengthen community relationships.
IntroductionPart 1Part 2Recommended Best Practices
Introduction
Police officers are vested with the authority and power to use force, including lethal force, within constitutional bounds. Misusing this power undermines police legitimacy. Indeed, the use — and misuse — of police force is and has long been the source of distrust and discord between police and communities, especially communities of color.
In most cases, officers use words and gestures to defuse conflict, and, sometimes, their mere presence achieves this goal. In rarer circumstances, they use force, ranging from physical maneuvers (e.g., grabs, holds, punches, and kicks) to physical, chemical, and electrical instruments (e.g., batons, pepper spray, Tasers, and firearms) to protect themselves and the public. Sometimes, however, officers misuse these tools and tactics, as evident inrecent beatings, chokeholds, and shootings of unarmed people in the back.[i]The deaths of Eric Garner and Walter Scott, for example, were recorded by members of the public, reported in the news media, and shared widely on social media, continuing a long history of misuse and abuse of police force, particularly against the Black community.
The legal system provides a corrective, but only a modest one. Individuals can press prosecutors to bring criminal charges against officers who misuse force, but the reluctance to do so makes convictions rare. Victims and their families can sue for civil rights violations, but civil litigation is lengthy, expensive, stressful, and unpredictable. What’s more, these cases typically pertain to past conduct; they don’t address, much less guarantee, broad police reform.
Police departments, of course, take measures to ensure that use of force is minimal and effective (i.e., that it is, at a minimum, a “reasonably objective” response to the threat posed to public and officer safety). But they can, and should, go further. Doing so will reduce misuse of force against members of the public, strengthen relationships between departments and communities, and restore trust and confidence in policing.
To ensure fair, safe, and effective policing now and in the future, community members and police leaders should work together to create clear and specific guidance and expectations on appropriate uses of force and equip officers to meet these expectations through training on implicit bias, procedural justice, de-escalation, harm-reduction tactics, and other areas. This may seem like a tall order, especially as departments grapple with limited resources and competing priorities, such as responding to the opioid epidemic and other crises. But improving practices and policies around the use of force will give officers tools and tactics they can apply across all policing work and will, ultimately, improve public and officer safety.
The good news is that communities, departments, and the field of law enforcement are working together to develop best practices in this area. At the same time, advances in technology have led to the development of less lethal types of force (e.g., Tasers) and more robust accountability systems (e.g., review of body-worn camera footage) — each of which has its own challenges. These practices, technologies, and tactics are summarized in the following recommendations.
[i]See, e.g.,Christian Sheckler & Ken Armstrong, Elkhart cops to be charged after video shows them beating handcuffed man, South Bend Tribune (Nov. 2, 2018), https://www.southbendtribune.com/news/publicsafety/elkhartjustice/elkhart-cops-to-be-charged-after-video-shows-them-beating/article_401f6756-613b-53b0-91ad-b15b6276489a.html(officers were caught on station house video punching a man who was sitting handcuffed); Tim Elfrink, ‘It’s still a blast beating people’: St. Louis police indicted in assault of undercover officer posing as protester (Nov. 30, 2018), https://www.washingtonpost.com/nation/2018/11/30/its-still-blast-beating-people-st-louis-police-indicted-assault-undercover-officer-posing-protester/?utm_term=.ed48da7935de (officer beat and kicked an unarmed undercover detective posing as a protestor even as he complied with their instructions); Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises Old Issue for the Police, N.Y. Times (July 18, 2014), https://www.nytimes.com/2014/07/19/nyregion/staten-island-man-dies-after-he-is-put-in-chokehold-during-arrest.html (Eric Garner died when an officer put him in a chokehold); Alan Blinder, Michael Slager, Officer in Walter Scott Shooting, Gets 20-Year Sentence, N.Y. Times (Dec. 7, 2017), https://www.nytimes.com/2017/12/07/us/michael-slager-sentence-walter-scott.html(Walter Scott was unarmed and shot in the back eight times by an officer).
The Legal Framework
Broadly defined, the phrase “use of force” refers to the effort officers make to ensure individuals comply with their commands.[i]Force exists on a spectrum, ranging from non-lethal (e.g., compliance techniques such as wrist grips or takedowns) to less-lethal (e.g., Tasers and pepper spray) to lethal (e.g., firearms and impact strikes to the head). No law or court can prescribe specific rules that apply to every imaginable scenario in which force is or may be used.[ii]Consequently, officers have little concrete direction to determine when and how to use force — and whether certain uses of force are legal, legitimate, and necessary.
The U.S. Supreme Court laid out the broad principles for use of force in Graham v. Connor, a case in which officers mistakenly believed an innocent man had engaged in criminal activity.[iii]Dethorne Graham was a diabetic who in 1984 asked his friend to drive him to a nearby convenience store so he could buy some orange juice. When he walked in the store, he saw a long line, so he turned around and got back into his friend’s car.
Two officers saw Graham enter and exit the store quickly and suspected him of robbery. They stopped Graham, who ran around his friend’s car twice, sat on the curb, and passed out. The officers handcuffed Graham and pushed him onto the hood of the car. When he regained consciousness, he asked officers to take his diabetic ID card out of his wallet, but they didn’t. Graham struggled as the officers threw him headfirst into their patrol car, leading to additional uses of force that resulted in injuries including a broken foot, cuts, and bruises.[iv]Only later did the officers learn that Graham was in insulin shock.
In assessing the case, the Court focused on what the officers knew or perceived at the time they used force. The relevant constitutional inquiry, the Court explained, was whether the officers’ actions were “objectively reasonable” given the totality of the circumstances.[v]The “reasonableness” of any use of force, it concluded, must be judged “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[vi]The Court offered several factors to define the “reasonableness” standard, including (1) whether the person poses an immediate threat of harm to officers or others; (2) how resistant the person is; and (3) whether he or she is associated with an underlying criminal offense.[vii]
This formulation, known as the Graham test, focuses on what officers knew or reasonably perceived at the time force was used. It does not examine the steps leading up to incidents, such as (1) whether officers could have reduced the likelihood of using force with de-escalation or other reasonably available tactics; or (2) whether their actions unnecessarily contributed to or escalated the situation and thus provoked or triggered a physical confrontation.
The Graham Court did not question whether the officers could or should have kept a safe distance from Graham or explored opportunities to communicate with him. Instead, it focused on whether the officers had sufficient justification to stop Graham and use force to keep him under control after they decided to make contact. The Graham test is, as a result, ambiguous and difficult to apply in the field. It provides scant guidance on acceptable uses of force or policies, training, and tactics to avoid or minimize the use force.
In short, the Graham test does not guide officers to use less force. Because it does not provide a “holistic, comprehensive approach” to protecting the public and preserving bodily safety, it does not incentivize departments to develop policies or practices to reduce the need to use force.[viii]
Other rulings have, however, disincentivized the use of force. The U.S. Court of Appeals for the Ninth Circuit, for example, ruled that officers who unnecessarily create circumstances that lead to use of force may be civilly liable for negligence, even if the force used meets the Graham standard.[ix]The state of California, meanwhile, instructs juries that “liability can arise if the [officer’s] earlier tactical conduct and decisions show, as part of the totality of circumstances, that the ultimate use of force was unreasonable.” In this respect, California provides people with greater protections than does the U.S. Constitution.[x]
Relying on the bare constitutional requirement for uses of force — much like relying on the minimum constitutional protections for stops and searches (as discussed in Chapter 3) — fosters “lawful but awful” practices that that disserve police and the public. Many departments recognize this shortcoming and, even though not compelled to do so by courts, have adopted force policies and practices that go beyond Graham’sminimum constitutional requirements.
Relying on the bare constitutional requirement for uses of force fosters “lawful but awful” practices.
[i]Int’l Ass’n of the Chiefs of Police, Police Use of Force in America 1 (2001), https://www.theiacp.org/sites/default/files/2018-08/2001useofforce.pdf.
[ii]Karen M. Hess et al., Police Operations: Theory and Practice at 23, https://books.google.com/books?id=zN6-7kt9F_cC&pg=PA23&lpg=PA23&dq=Police+use+discretion+because+no+set+of+policies+and+procedures+can+prescribe+what+to+do+in+every+circumstance&source=bl&ots=qwHyQjCOSD&sig=iRvQI3_Fm_c0KloBeOp3j0DDNG8&hl=en&sa=X&ved=2ahUKEwiph-zzjenfAhWEMd8KHXOVCDUQ6AEwAXoECAgQAQ#v=onepage&q=police%20use%20discretion&f=false(“Police use discretion because no set of policies and procedures can prescribe what to do in every circumstance.”).
[iii]Graham v. Connor, 490 U.S. 386, 388-90 (1989).
[iv]Graham v. Connor, 490 U.S. 386, 389-90 (1989).
[v]Graham v. Connor, 490 U.S. 386, 396 (1989).
[vi]Graham v. Connor, 490 U.S. 386, 396 (1989).
[vii]Graham v. Connor, 490 U.S. 386, 396 (1989)(“…properapplication requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight”).
[viii]Police Exec. Res. Forum, Guiding Principles on Use of Force 94 (2016), http://www.policeforum.org/assets/30%20guiding%20principles.pdf.
[ix]See, e.g.,Han v. City of Folsom, 551 Fed. Appx. 923, 926 (9th Cir. 2014) (asserting that although “officers’ alleged pre-shooting negligence does not establish a constitutional violation, it may establish common-law negligence under [state] law.”).
[x] Judicial Council of Calif., Civil Jury Instructions, CACI No. 440: Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure— Essential Factual Elements 311 (2016) (citing Hayes v. County of San Diego, 57 Cal. 4th 622 (2013)), https://www.justia.com/documents/trials-litigation-caci.pdf. In Hayes, the California Supreme Court drew upon earlier case law recognizing that officers may unnecessarily create circumstances leading to the use of force: Instructive here is our decision in Grudt v. City of Los Angeles, (1970), 2 Cal.3d 575. In Grudt, a police officer in plain clothes, carrying a double-barreled shotgun, approached a car, possibly causing the driver to think he was being robbed or attacked. The driver accelerated the car toward a second plainclothes officer, and then both officers opened fire on the driver, killing him. This court held that the trial court erred in barring a claim of negligence against the officers. Significantly, the shooting in Grudt appeared justified if examined in isolation, because the driver was accelerating his car toward one of the officers just before the shooting. Nevertheless, we concluded that the totality of the circumstances, including the preshooting conduct of the officers, might persuade a jury to find the shooting negligent. In other words, preshooting circumstances might show that an otherwise reasonable use of deadly force was in fact unreasonable. Hayes, 57 Cal. 4th at 629.
Policies, Training, and Oversight
Departments should establish clear guidelines and expectations about the use of force and develop policies that aim to reduce it.[i]The Seattle Police Department,[ii]for example, allows officers to “only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law enforcement objective.”[iii]It directs officers to recognize that their actions, such as displaying a firearm, could affect the need to use force[iv]and to use de-escalation tactics to lessen or avoid force.[v]Under the department’s force policy, moderate-to-high uses of force fell 60 percent between 2014 and 2016— without increasingcrime or officer injuries.[vi]
Many other departments, however, rely on general, cursory policies that simply recite the Grahamstandard. And some departments have contracted with outside companies that sell cookie-cutter policies. This is problematic for several reasons: It makes communities vulnerable to potential constitutional violations, exposes jurisdictions to legal liability, and impedes community-police cooperation.
To reduce uses of force, departments should work with communities to develop force policies and should equip officers to adhere to them. If departments require officers to use de-escalation techniques before using force, for example, they should also train officers to do so. Without adequate training, force policies exist on paper but not in practice.
Furthermore, departments need proper review systems to ensure that all officers comply with departmental policies and provide mechanisms to intervene when they don’t. All use-of-force incidents should be reported and reviewed as a matter of course, not because of presumed mismanagement but because the use of force is a serious and potentially harmful event for community members and officers alike. Every review of force should be seen as a learning opportunity that can inform practice and training and thereby enhance public and officer safety.
[i]See, e.g.,Samuel Sinyangwe, Examining the Use of Force Policies in Ending Police Violence 4 (2016) (finding that policies “requiring officers to exhaust all other means before using deadly force were associated with the largest reductions in police-involved killings”), https://static1.squarespace.com/static/56996151cbced68b170389f4/t/57e17531725e25ec2e648650/1474393399581/Use+of+Force+Study.pdf.
[ii]Seattle Police Monitor, Ninth Systemic Assessment: Use of Force 14 (2017), https://static1.squarespace.com/static/5425b9f0e4b0d66352331e0e/t/58e6a753ff7c50ebbad126f8/1491511130661/.
[iii]Carmen Best, Chief of Police, Seattle Police Dep’t Manual, § 8.200 – Using Force, Seattle.gov (Sept. 1, 2015), https://www.seattle.gov/police-manual/title-8—use-of-force/8200—using-force.
[iv]Carmen Best, Chief of Police, Seattle Police Dep’t Manual, § 8.000 – Use of Force Core Principles, Seattle.gov (Sept. 1, 2015), https://www.seattle.gov/police-manual/title-8—use-of-force/8000—use-of-force-core-principles.
[v]Carmen Best, Chief of Police, Seattle Police Dep’t Manual, § 8.100 – De-Escalation, Seattle.gov (Sept. 1, 2015), https://www.seattle.gov/police-manual/title-8—use-of-force/8100—de-escalation.
[vi]Seattle Police Monitor, Ninth Systemic Assessment: Use of Force 2-3 (2017), https://static1.squarespace.com/static/5425b9f0e4b0d66352331e0e/t/58e6a753ff7c50ebbad126f8/1491511130661/.
Recommended Best Practices
Recommended
Best Practices
4.2 Permit the use of force only when necessary to resolve conflict and protect public and officer safety.
In 1829, Sir Robert Peel, a pioneer in police reform who established the London Metropolitan Police Department, reportedly articulated nine principles of policing. The sixth recommends that police “use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.”[i]This principle still holds true. To apply it today, departments should:
Provide protections beyond those afforded by the U.S. Constitution. To meet constitutional standards, officers are required to make “objectively reasonable” decisions when using force. But force policies should go beyond this requirement and require “objectively reasonable” decisions not only duringuses of force but also in the moments leading up tothem. The Los Angeles Police Department (LAPD), for example, considers an officer’s tactical conduct and decisions leading to deadly use of force to determine whether it was reasonable.[ii]
[i]Sir Robert Peel’s Nine Principles of Policing, N.Y. Times (Apr. 15, 2014), https://www.nytimes.com/2014/04/16/nyregion/sir-robert-peels-nine-principles-of-policing.html.
[ii]Los Angeles Police Dep’t, Office of the Chief of Police, Policy on the Use of Force – Revised (2017).
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4.3 Prohibit and regulate tools and tactics with a high risk of death or injury that are disproportionate to the threat.
Many officers want specific guidance — or “rules of the road” — about acceptable uses and applications of force. Community members also want a clear sense of how officers should perform. Because courts have not provided much guidance, departments should step in. Policies and training should explicitly prohibit or limit uses of force that carry a high risk of death or injury when they are unwarranted because they are disproportionate to the threat. Clear rules, with clear exceptions, ensure that officers know in advance which force responses, tools, and techniques are prohibited under most or all circumstances. Specifically, departments should:
“In a democratic society, police must never forget that our authority is derived from the consent of the people. We have sworn a solemn oath to safeguard the constitutional guarantees and personal safety of all people. For that reason, no policing policy warrants greater care and attention than the use of force. We should not be motivated solely by public protests; this issue should receive our constant attention, to ensure officer and public safety.”
Prohibit maneuvers that restrict blood or oxygen flow to the brain. Chokeholds, strangleholds, neck restraints, neckholds, and carotid artery restraints are lethal hands-on maneuvers that cut off the supply of blood and oxygen to the brain. There is widespread support for banning these maneuvers, especially in the wake of the death of Eric Garner. In 2014, a New York City officer was recorded wrapping his arm around Garner’s neck and wrestling him to the ground (in violation of department policy) while he pleaded that he could not breathe.[i]
[i]Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises Old Issue for the Police, N.Y. Times (July 18, 2014), https://www.nytimes.com/2014/07/19/nyregion/staten-island-man-dies-after-he-is-put-in-chokehold-during-arrest.html.
Read More4.5 Set clear policies regarding specific force instruments.
Different instruments introduce specific considerations and risks. Pepper spray requires different knowledge and precautions than tear gas, and handguns require different approaches than Tasers. Yet many departments lack specific policies regarding the use of each instrument.[i]Without such policies, and training to adhere to them, supervisors can’t adequately hold officers accountable when officers misuse instruments. Specifically, departments should:
Set clear policies regarding firearms. Firearms, such as handguns, shotguns, and rifles, are among the most lethal weapons at officers’ disposal, and their use impacts not only officers and individuals but entire departments and communities.[ii]Some departments address the use of firearms in general policies, while others provide specific, stand-alone guidance. Either way, firearms merit special attention, and their proper use should be a major component of departments’ policies regarding the use of force.[iii]Force policies should clearly address all topics related to firearm use, including training and certification, holstering and discharge, and reports, investigations, and discipline.
[i]Brandon Garrett & Seth Stoughton, A Tactical Fourth Amendment, 103 VA. L. Rev. 211, 278 (2017).
[ii]Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice, Officer-Involved Shootings: A Guide for Law Enforcement Leaders 1, 7 (2016), https://www.theiacp.org/sites/default/files/2018-08/e051602754_Officer_Involved_v8.pdf.
[iii]U.S. Dep’t of Justice, Civ. Rights Div., Investigation of the Puerto Rico Police Department 35 (2011), https://www.justice.gov/sites/default/files/crt/legacy/2011/09/08/prpd_letter.pdf.
Read More4.10 Establish robust processes for reporting and investigating uses of force.
Developing a comprehensive force policy is the first step toward reducing excessive use of force. Departmental policies should also provide clear guidance for officers to report uses of force and for supervisors to review and investigate them.[i]Uses of force that go beyond “hand controls” and “escort techniques,” which are used to handcuff unresisting individuals and generally do not cause pain or injury, should be reported and investigated.[ii]Specifically, departments should:
Provide clear guidance on reporting, reviewing, and investigating force. After using force, officers and witness officers should orally notify supervisors of the incident.[iii]Instead of requiring officers to merely note uses of force on arrest reports, departments should maintain separate files for use-of-force reports so they can track each incident. Officers should file force reports before the end of the shift during which the incident occurred.
[i]SeeSamuel Sinyangwe, Examining the Use of Force Policies in Ending Police Violence2-3 (2016) (finding that a policy requiring officers to report both uses of force and threats/attempted uses of force led to a 25% reduction in the number of police-involved killings per population), https://static1.squarespace.com/static/56996151cbced68b170389f4/t/57e17531725e25ec2e648650/1474393399581/Use+of+Force+Study.pdf; Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 529-30 (2004); Kami Chavis Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 373, 395-98 (2010); see alsoData, Information, and Video Footage, supraChapter 8.
[ii]See, e.g.,New Orleans Police Dep’t, Operations Manual: Use of Force 3-4 (2015), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-3-Use-of-Force.pdf/(describing hand controls and escort techniques as non-reportable uses of force).
[iii]See, e.g.,Carmen Best, Chief of Police, Seattle Police Dep’t Manual, § 8.400 – Use of Force Reporting and Investigation, Seattle.gov 121 (Sept. 1, 2015), https://www.seattle.gov/police-manual/title-8—use-of-force/8400—use-of-force-reporting-and-investigation.
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