CSSA Magazine Article- Officer’s Use of Force

The question of when law enforcement officers are entitled to use force, and what amount of force is reasonable, is a question which constantly plagues all peace officers.  Over the course of the last year or so, and most particularly within the last month, a combination of incidents, along with court decisions, have raised the question once again.

USES OF FORCE

On May 1, 2007, the L.A. Police Department took action to disburse
individuals at MacArthur Park, in Los Angeles, who were congregating
to support the issue of immigration rights.  Unfortunately, among the group
of passive demonstrators, there were agitators who assaulted the police by
throwing rocks and bottles.  The response by the LAPD is currently being
investigated since it appeared to have violated agreed upon protocols
regarding the dispersal of large groups of people under these types of
circumstances.  The question has arisen as to whether the officers were
authorized to utilize force and, if so, what level of force was reasonable?

Just one day prior to that event, the U.S. Supreme Court, in an 8 – 1 decision,
gave police officers protection from civil liability when using force to stop a
fleeing suspect.  In the case of Scott v. Harris,  the only known violation was
(extremely) reckless driving.  The physical intervention used by law
enforcement to stop the vehicle resulted in the teenaged driver being paralyzed
after his car was run off the road.  Nonetheless, the U.S. Supreme Court stated
that “the police officer’s attempt to terminate [through the use of force] a
dangerous high speed car chase that threatens the lives of innocent bystanders
does not violate the Fourth Amendment, even when it places the fleeing
motorist at the risk of serious injury or death.”

In August of 2006, the Second Appellate District Court of Appeal
unanimously concluded that the use of police dogs by officers does not
constitute the use of deadly force.  In the case of Thompson v. County
of Los Angeles (2006) 142 Cal.App. 4th 154, the Court of Appeal
reaffirmed that deadly force is defined as “force that creates a substantial
risk of causing death or serious bodily harm, “however, the court also
reinforced prior court decisions that “…the great weight of authority (holds)
that use of a trained police dog does not constitute deadly force.”

WHAT IS CONSIDERED REASONABLE?

The courts, in a number of cases, have attempted through examples to articulate what is reasonable, but it always comes down to facts and circumstances confronting the peace officer at that incident. In Scott v. Harris, the U.S. Supreme Court focused on when the use of force by law enforcement is reasonable.  “It is…conceded, by both sides,  that a claim of excessive force in the course of making a…”seizure” of the person…is properly analyzed under the Fourth Amendment’s objective reasonableness standard.  The question we need to answer is whether Scott’s actions were objectively reasonable.”

In making that statement, the Supreme Court referred to a prior decision of the Court, from twenty years ago, the case of Tennessee v. Garner (1985) 471 U.S.1.  In the Garner case, a police officer shot and killed “a young, slight, and unarmed burglary suspect, by shooting him in the back of the head while he was running away on foot….”  The Scott court states that “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute deadly force.”  As such, “whether or not Scott’s actions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable.”

CALIFORNIA LAW

California Penal Code §835a states that, “any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.  A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self defense by the use of reasonable force to effect the arrest or to prevent the escape or to overcome resistance.” [Emphasis added.]

California Penal Code §843 also makes reference to what type of force may be used under certain circumstances.  P.C. §843 states “when the arrest is being made by an officer under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary means to effect the arrest.”  In P.C. section 843, the reference is to “all necessary means to effect the arrest” – there is no reference to “reasonable force.”

THE REASONABLENESS TEST

It is obvious from the reading of statutes, as well as case law, that a burden is placed upon a peace officer to use force which is authorized by State and Federal law only when the use of such force can be considered reasonable.  That is, obviously, an extremely subjective interpretation which will always be affected by the facts and circumstances confronting the officer at any particular point in time.  The U.S. Supreme Court, in Scott v. Harris, provides some guidance but, quite frankly, it still requires the analysis, interpretation and evaluation of circumstances confronting each individual officer on each occasion.

The Scott court states that, “in determining the reasonableness of the manner in which a seizure is effected, we must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”  The Supreme Court goes on to articulate that the level of force applied by law enforcement will be determined by the level of danger posed and/or threatened by the violator.  Questions of the risk of bodily harm posed to others, and/or to the officers, will be considered in determining whether the use of any force is justified or reasonable under the circumstances.

As the California Court of Appeal stated in the Thompson case, and referring to the U.S. Supreme Court decision in Graham v. Connor, “all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and it’s reasonableness standard….”

The Graham court gives us some further guidance by stating that “the reasonableness test requires careful attention to the facts and circumstances of each particular case, including “(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.”

CONCLUSION

In each and every case where a peace officer utilizes force, the three factors set forth above, will be considered in determining whether the level of force used was appropriate and whether it was reasonable under the circumstances.  That analysis and determination is always made by prosecutors, judges and juries, through the use of hindsight.  However, each and every peace officer throughout the United States of America must make that judgment “on the spot.”

It is the officer’s duty and responsibility to analyze – and, as the courts have acknowledged, sometimes in a split second – whether any force is appropriate, and the level of force which would be reasonable under the circumstances.  It is an incredibly difficult burden imposed upon law enforcement officers, but it is an essential, fundamental, aspect of the job of being a peace officer.

Martin J. Mayer serves as General Counsel for the California State Sheriffs’ Association. The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities, as its City Attorney, in employment matters, and in defending tort litigation and civil rights litigation.