FBI Publications - Law Enforcement Bulletin -
October 1997 issue -
The Level of Force
Allowable When Making Arrests
The level of force officers are allowed to use when making arrests depends on
the nature of the threat.
John C. Hall
Special Agent Hall is a legal instructor at the FBI Academy.
"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 use of force is an integral part of a law enforcement officer's job,
particularly when arresting criminal suspects. Because arrests and investigative
detentions are "seizures" of persons, they are governed by the Fourth Amendment
to the U.S. Constitution.1 Not only must they be justified at their
inception -- i.e., officers must have probable cause to make a valid arrest2--the
manner in which they are carried out, including the level of force that may be
used, must be "reasonable."3 Deadly force may be constitutionally reasonable in
defense of life or when necessary to arrest dangerous suspects.4 This article
discusses the appropriate level of force officers may use when deadly force is
not a reasonable option.
THE FOURTH AMENDMENT STANDARD
The Fourth Amendment standard of "reasonableness" is not conducive to
"precise
definition or mechanical application,"5 but "requires careful attention to the
facts and circumstances of each particular case," as viewed "...from the
perspective of a reasonable officer at the scene, rather than with the 20/20
vision of hindsight...." Moreover, allowances must be made for the fact that
officers "...are often forced to make split-second judgments-in circumstances
that are tense, uncertain, and rapidly evolving-about the amount of force that
is necessary in a particular situation."6
Among the "totality of circumstances" that may govern the reasonableness of
using a particular level of force, the Supreme Court has emphasized 1) the
severity of the crime; 2) whether the suspect poses an immediate threat to the
safety of the officers or others; and 3) whether the suspect actively is
resisting arrest or attempting to evade arrest by flight.7 It is important to
consider how these factors have been weighed by the courts in recent cases
assessing the application of non-deadly force by law enforcement officers while
making arrests.
SEVERITY OF THE CRIME
The severity of a suspect's crime is clearly relevant in judging whether a
suspect poses "a threat of serious physical harm to the officer or to others,"8
thus justifying the use of deadly force when necessary to make an arrest. It
likewise can be relevant to an officer's decision to use non-deadly force when
deadly force is not an appropriate option. For example, the manner in which
officers approach a suspect to make the arrest is often affected by a suspect's
known propensities for violence or resistance.
In Dean v. City of Worcester,9 officers had a warrant to arrest a man with a
history of violence who was known to threaten violent resistance during arrest
attempts. Officers encountered a man matching the suspect's description at a
location where reliable information had indicated he would be. The officers
immediately seized him, threw him to the ground, and handcuffed him. However,
the arrestee, Dean, was the wrong man. In a lawsuit against the officers and the
police department, Dean alleged that he had offered no resistance and that the
officers had used excessive force against him. Upholding a district court's
judgment in favor of the officers, the federal appellate court noted that in
view of the real suspect's known propensities for violence and his threats to
shoot any police officer who tried to arrest him, the officers were justified in
anticipating that resistance. Because the officers reasonably believed that Dean
was the suspect, they were "entitled to do what the law would have allowed them
to do if [Dean] had in fact been [the suspect]."10
THREATS TO SAFETY
It is not disputed that law enforcement officers are permitted to protect
themselves and others from threats to their safety. What is often disputed is an
officer's assessment of a threat and the level of force selected to counter it.
As a general principle, the level of force used should be tailored to the nature
of the threat that prompted its use. The Fourth Amendment does not require that
officers choose the least intrusive level of force, only a reasonable one.11Armed or Unarmed Suspects
What is reasonable in one set of circumstances may not be reasonable in another.
Courts and even so-called police experts differ as to the level of force an
officer would be justified in using in the face of a threat to safety. For
example, an unarmed suspect does not present the same clear and significant
threat to an officer's safety as an armed and noncompliant suspect. Yet, an
unarmed suspect still can seriously injure or kill an officer. An unarmed
suspect may succeed--through superior strength, skill, or luck--in temporarily
disabling an officer sufficiently to gain control of the officer's firearm. In
fact, approximately 10 percent of officers killed by criminal assailants each
year are slain with their own firearms.12 Perhaps that statistic reflects a
reality often overlooked--that officers who engage in physical struggles with
aggressive assailants are often at a disadvantage because the playing field is
seldom equal.
Criminal suspects, even unarmed ones, who ignore commands and aggressively
threaten law enforcement officers are exhibiting dangerous tendencies. Moreover,
when officers attempt to subdue such suspects, they must do so while protecting
their firearms from the suspect's grasp. The suspect does not have to subdue the
officer; he only needs a chance to gain access to the officer's sidearm.
The element of chance is present in all violent encounters, and while its
significance can be somewhat reduced through such factors as weapons retention
training and tactical skill, it cannot be eliminated entirely. Simply stated,
the "best" person does not always win. In the words of the ancient proverb: "The
race is not to the swift, nor the battle to the strong...but time and chance
happeneth to them all."13
Aggressive Noncompliance
In Tom v. Voida14 an officer saw a young man fall from his bicycle and remain on
the ground with his arms and legs in the air "like a bug." The officer did not
suspect him of any crime but stopped to see if medical assistance was needed.
Without responding to the officer's inquiries, the young man got up and began
rapidly walking away with the bicycle. When the officer asked him to "wait a
minute," the young man looked over his shoulder at the officer, threw down the
bike, and ran away.
Suspecting that the bicycle was stolen, the officer pursued the suspect on foot
for several blocks until the suspect slipped on ice and fell down. The officer's
efforts to handcuff the suspect led to a violent struggle in which the suspect
repeatedly hit the officer's head against the concrete pavement. When the
suspect broke free and continued to flee, the officer resumed pursuit. The
officer overtook the suspect once more, initiating a second struggle in which
the suspect again struck the officer repeatedly. The officer managed to pull
away from the suspect and draw her sidearm even though her left arm had been
disabled during the struggle. When the suspect ignored commands to stop and
continued to act aggressively, the officer shot and killed him. A lawsuit
against the officer and the police department alleged that the officer had used
excessive force and had no legal justification to stop the suspect in the first
place. The federal district judge granted summary judgment in favor of the
officer and the department. The judgment was affirmed later by the appellate
court.
The court concluded that from the moment the individual ignored the officer's
inquiries and began running away, the officer had a reasonable suspicion that
the suspect was engaged in criminal activity. Moreover, the suspect's continued
flight from the officer "ripened [the officer's] reasonable suspicion into
probable cause..." and justified the suspect's arrest for stealing the bicycle
and resisting a law enforcement officer.15 Accordingly, the court considered
that the officer was reasonable in trying to restrain the suspect with handcuffs
and in using deadly force to protect herself against the suspect.
Articulating Law Enforcement Perspective
The general principle that officers confronted with threats to their safety are
not required to select the least intrusive alternative to counter the threat
does not suggest that officers always are justified in using deadly force. For
example, in Hopkins v. Andaya,16 an officer shot and killed an unarmed suspect
who had managed to grab the officer's baton and begin striking the officer. The
officer fell to the ground, drew his sidearm, and ordered the suspect to stop.
When the suspect continued his assault, the officer fired six times. The suspect
went down after being struck by several of the shots but got back to his feet
without the baton and advanced on the officer again. The officer retreated,
reloaded his revolver, and radioed for help. When the suspect continued to
ignore commands to stop, the officer fired four more times. The suspect later
died from nine gunshot wounds: two to the head, five to the torso, and one in
each hand. In a subsequent lawsuit against the officer, the federal appellate
court reversed a lower court's summary judgment in favor of the officer. The
appellate court raised two "troubling factual issues" that rendered summary
judgment inappropriate. The first factor was that the medical evidence did not
appear to support the officer's statements regarding the nature or severity of
the suspect's attack. In addition, the officer's initial statement presented "a
milder version" of the altercation than was described in later statements.
Another factor that troubled the court was the "second" shooting, after the
officer had first shot the suspect and then retreated. The court opined:...we cannot say as a matter of law that [the officer] acted reasonably when he
then shot the unarmed [suspect] four more times. At the time of the second
shooting, it was far from clear that [the officer] reasonably feared for his
life.17
The court noted that the suspect already had been wounded several times and
suggested that the officer could have evaded the suspect or attempted to subdue
him with "his fists, his feet, his baton, or the butt of his gun."18
The court
recognized that these facts might well be resolved in favor of the officer at
trial but concluded that the questions raised made summary judgment
inappropriate.
The court's decision in Andaya appears to be inconsistent in some respects with
the general premise that officers are not required to choose the least intrusive
alternative, only a reasonable one. On the other hand, the officer's choice
must, after all, be reasonable, and courts and juries must have sufficient
information upon which to base a judgment.
For example, in Andaya, the court was clearly troubled by the notion that an
unarmed person, already suffering from gunshot wounds, was still viewed as a
threat by the officer. Only an informed court is likely to recognize that
gunshot wounds may not stop--or even discourage--certain determined assailants,
and striking a suspect with a gun butt may not be a safe option. If, as the
Supreme Court has declared, the issue must be viewed from the perspective of the
reasonable law enforcement officer, that perspective must be presented clearly
if law enforcement interests are to prevail.
RESISTING ARREST
Passive Non-Compliance
By far, the greater number of cases involving police use of non-deadly force are
those in which it is alleged that the suspect resisted or attempted to evade
arrest. This is undoubtedly due to the fact that the suspects are not posing
immediate threats to the officers or others necessarily but are simply being
noncompliant.
An example is Forrester v. City of San Diego,19 where police officers used "pain
compliance" techniques to arrest several anti-abortion demonstrators who had
ignored police commands to disperse. Before using any force, the officers warned
the demonstrators that they would be subject to pain compliance measures if they
did not move. Demonstrators were told that such measures would hurt, but they
could reduce the pain by standing up.
When the demonstrators did not comply, the officers used pain compliance
techniques to remove them. In their lawsuit, the arrestees complained of
injuries to their hands and arms, including bruises, pinched nerves, and one
broken wrist. They contended that dragging and carrying them would have been
more reasonable.
A jury returned a verdict in favor of the city and the police officers, and
that verdict was upheld by the federal appellate court for three reasons. First,
the court observed that "the nature and quality of the intrusion upon the
arrestees' personal security" was not excessive; rather, "...the force consisted
only of physical pressure administered on the demonstrators' limbs in increasing
degrees, resulting in pain."20
Second, the city had a legitimate interest in quickly dispersing and removing
lawbreakers with the least amount of injury to the police and others, even
though many of the crimes were misdemeanors. Third, the court noted that the
decision not to drag and carry was based upon the officer's desire to maximize
police control over the anticipated large crowds and to avoid back injuries that
often are sustained by officers in those situations.
Finally, the court stated: "Police officers...are not required to use the least
intrusive degree of force possible....Whether officers hypothetically could have
used less painful, less injurious, or more effective force in executing an
arrest is simply not the issue."21
Active Arrest Resistance
In Forrester, the arrestees were engaged in passive noncompliance. Obviously, an
officer may require higher levels of force to overcome a suspect engaged in
active arrest resistance. In Mayard v. Hopwood22 Elsie Mayard was cited by
police for selling liquor without a license. Although the police did not intend
to make an arrest at that time, they did so when she became agitated and began
screaming and shouting at them for removing her inventory as evidence. The
officers took her by the arms to escort her to the police car. When she began to
struggle with them, they placed her in handcuffs. When she refused to get into
the car, the officers picked her up and placed her face down on the rear seat.
When she began kicking they placed a hobble restraint on her legs. She later
sued the police officers, alleging excessive force. The U.S. district court
granted summary judgment to the officers, and Mayard appealed. The federal
appellate court upheld the summary judgment as it related to the force used to
make the arrest, noting that it was objectively reasonable "particularly...in
light of [her] resistance."23
Using Force Against a Controlled Subject
The Mayard case raised a second issue that the court found more troublesome.
Mayard contended that while being transported to the police station, she was
slapped in the face, punched in the chest, and subjected to a racial epithet.
The court viewed such allegations, if substantiated, as constituting an
objectively unreasonable use of force against an arrestee already under control
and remanded to the district court for further consideration.A similar issue was raised in
Frazell v. Flanigan,24 where the arrestee alleged
that officers used excessive force against him after he already had been
subdued. Upholding a jury verdict against the officers, the appellate court
observed that "...it is one thing to use force in subduing a potentially
dangerous or violent suspect and quite another to proceed to gratuitously beat
him...."25 These cases point out that when the circumstances justifying a
particular level of force no longer exist, that level of force must be
discontinued.
However, once control has been established over an arrestee, officers still may
use reasonable force to maintain that control and to protect themselves from
danger. They may also use reasonable force to protect themselves from an
arrestee's actions that are demeaning or distasteful. For example, in Prymer v.
Odgen,26 officers were escorting an arrestee to the police car when they heard
him making a "gurgling" noise in his throat as if he were going to spit on the
officers. One of the officers struck the arrestee in the head with a
straight-arm technique "to redirect [his] head." The arrestee later sued the
police, alleging, inter alia, that the officer had used excessive force by
striking him in the head. The U.S. district court disagreed, and the appellate
court concurred. The court reasoned, "...it was reasonable for an officer not to
want to be spat upon...we cannot say that [the officer's] reaction to [the
arrestee's] attempt to spit on him was objectively unreasonable in the context
of this case."27
CONCLUSION
The Supreme Court has held that the level of force
law enforcement officers may use to effect arrests or investigative
detentions of suspects must be "reasonable" to comport with the Fourth
Amendment. As the Court has stated and these cases illustrate, "reasonableness"
is not conducive to "precise definition or mechanical application." Law
enforcement policy makers and instructors must avoid the natural temptation to
reduce these critical issues to overly simple and rigid rules of application.
Apparent gains in clarity most likely will be offset by loss of flexibility and
practicality in the face of the realities of law enforcement. As an alternate
approach, consideration should be given to carefully crafting guidelines that
provide officers with a range of options within which to make decisions
regarding the appropriate level of force in particular situations. In addition,
sustained training sessions that include practical application of the principles
to realistic scenarios will increase officer skill and confidence in making the
tough decisions. Policy and training should strike an appropriate balance
between the rights of citizens to be free from "unreasonable" seizures and the
interests of society in maintaining effective law enforcement while protecting
the officers who must perform that duty.
Endnotes
1 Graham v. Connor, 490 U.S. 386 (1989).
2 Beck v. Ohio, 379 U.S. 89 (1964).
3 See, e.g, Tennessee v. Garner, 471 U.S. 1, 8 (1985): "...it is plain that
reasonableness depends
on not only when a seizure is made, but also how it is carried out."
4 Id.
5 Bell v. Wolfish, 441 U.S. 520 (1979).
6 Graham, 490 U.S. at 396-397.
7 Id. at 396.
8 Tennessee v. Garner, supra, at 8.
9 924 F.2d 364 (1st Cir. 1991).
10 Id. at 368.
11 See, e.g., Illinois v. Lafayette, 462 U.S. 640 (1983); Roy v. Inhabitants of
the City of
Lewiston, 42 F.3d 691 (1st Cir. 1994); Plakas v. Drinski, 19 F.3d 1143 (7th
Cir.) cert. denied,
115 S. Ct. 81 (1994); Scott v. Henrich, 39 F. 3d 912 (9th Cir. 1994); Schulz v.
Long, 44 F. 3d
643 (8th Cir. 1995); Wilson v. Meeks, 52 F. 3d 1547 (10th Cir. 1995); Menuel v.
Atlanta, 25 F.
3d 990 (11th Cir. 1994).
12 Uniform Crime Report, Law Enforcement Officers Killed and Assaulted, Federal
Bureau of
Investigation, 1994.
13 Ecclesiastes 9:11.
14 963 F. 2d 952 (7th Cir. 1992).
15 Id. at 959.
16 958 F. 3d 881 (9th Cir. 1992).
17 Id. at 887.
18 Id.
19 25 F. 3d 804 (9th Cir. 1994), cert. denied, 116 S.Ct. 1104 (1995).
20 Id. at 807.
21 Id. at 807-808.
22 Mayard v. Hopwood, 105 F. 3d 1226 (8th Cir. 1997).
23 Id. at 1228.
24 Frazell v. Flanagan, 102 F. 3d 877 (7th Cir. 1996).
25 Id. at 885.
26 29 F. 3d 1208 (7th Cir. 1994).
27 Id. at 1216.
Law enforcement officers of other than federal jurisdiction who are interested
in this article should consult their legal advisors. Some police procedures
ruled permissible under federal constitutional law are of questionable legality
under state law or are not permitted at all.
