By John V. Berry, www.berrylegal.com
The topic often of excessive force often comes up in our representation of law enforcement officers. Police officers can imagine why this would be a major issue given that it has the potential to end their career and/or cause them to be criminally prosecuted. The vast majority of law enforcement officers are only trying to do their job, while risking their lives, in protecting the public. This article examines the basics of "excessive force" and offers some tips to law enforcement officers who may be subject to complaints.
What is Excessive Force?
Typically, most experts say that "excessive force" is any force beyond what’s necessary to arrest a suspect and keep police and the public / bystanders safe. Excessive force typically refers to police incidents where law enforcement officers who are legally entitled to use force exceed the minimum amount necessary to address the situation or to protect themselves or others from harm. This can come up in many different potential situations, such as when handling prisoners or even during military operations. It is very easy, after the fact, to second guess an officer's actions. It can be very difficult, however, for the officer when they are facing life and death decisions.
When excessive force involves law enforcement officers, especially during the arrest process, it is also referred to by complainants as alleged police brutality. The constitutional right to be free from excessive force is found in the reasonable search and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual punishment in the Eighth Amendment. These issues often come up after the arrest and when a lawsuit has been filed against the department and the officer.
While court decisions are all over the place (and vary by jurisdiction) and vary based on specific fact patterns, the following is a simple general test that can be applied in evaluating alleged excessive force claims. The question, in such cases, is whethe the force applied:
- Was necessary to prevent the escape of further harm; and
- The police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
It is always easy for the public to second guess an officer's decision in the heat of the moment or with respect to social media outrage, but law enforcement officers are placed under tremendous stress in these types of situations, and almost always, in our cases, have done their best to limit use of force to the minimum needed.
The key Supreme Court case involving excessive force is Graham v. Connor, 490 U.S. 386, 396-397 (1989). In that case, the Supreme Court held that:
With respect to a claim brought under 42 U.S.C. 1983 that a police officer has used excessive force in seizing an individual in violation of the Federal Constitution's Forth Amendment, the inquiry as to the officer's "reasonableness" is an objective one, with the question being whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting the officer, without regard to the officer's underlying intent or motivation; such reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight; not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment, and the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation in circumstances that are tense, uncertain, and rapidly evolving; an officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer's good intentions make an objectively unreasonable use of force constitutional.
The Graham case boils down to a deference for police action in these types of cases, but one based on reasonableness as viewed from a third party's observation. In other words, whether an excessive force case is dismissed or moves forward depends on the reasonableness of the officers involved. We have provided some tips to law enforcement officers facing these difficult use of force situations:
10 Tips for Officers to Consider in Excessive Force Cases
- Witnesses: When difficult situations arise involving use of force, hopefully the officer has another officer present that can testify as to what has transpired. I find that this is probably one of the biggest ways in which to alleviate excessive force claims. A police officer wants to avoid a one on one confrontation with an individual in an excessive force case. When there are witnesses, the risk of liability to the police officer goes significantly down.
- Call for Backup or Supervisor: Time permitting (and this cannot happen in many situations), it is critical that an officer call for backup (or for a supervisor) on the scene prior to force being used. Again, this cannot always be done given the fluidity of most excessive force situations, but where possible, it is important to try to get a supervisor or other officer on scene prior to using force.
- Relay the Situation, on a Play by Play Basis, with the Dispatcher: Where possible, an officer should dictate each step that he or she has taken regarding a use of force situation. These calls are recorded and can be used later for an officer's legal defense. For example, if an officer can state, on the radio, that the "individual has moved his hand towards his pockets" or "the suspect is running down the street armed" it can help in the officer's legal defense later in the process. Essentially, the officer needs to document their law enforcement actions, step by step.
- Be Familiar with the Law in the Officer's Jurisdiction: It is important for a police officer to be familiar with the standards for excessive use of force claims in their respective states. This can help alleviate problems that later arise. Each state's laws and application of these laws vary, so it is important to be aware of state specific laws and cases on the issue of excessive force.
- Be Aware of Department's Use of Force Policy: Each use of force policy varies between police departments and law enforcement agencies so it is very important for an officer to be aware of the applicable policy and follow it when difficult situations arise. The officer will need to ensure that they have followed their individual use of force policies in order to protect themselves.
- Think Carefully Before Writing the Incident Report: One of the biggest issues that officers come across is that they sometimes quickly draft an incident report without thinking through the incident that has occurred. The better (and more thorough) the statement, the better the outcome when a complainant brings an excessive use of force claim against an officer. The statement should be thorough and well thought out. It is important not to leave out key details that can help an officer later in defending against a use of force claim.
- Ensure that the Department Knows About a Use of Force Claim: Sometimes, police officers will get a civil complaint in the mail, alleging use of excessive force and other issues. Keep in mind that there is no guarantee that the police department knows about the civil complaint. The complaint should be immediately provided to the department's counsel or a supervisor as soon as possible. This is not the time to make assumptions. There have been cases where officers have not responded to complaints which have then led to default judgments against the officers involved because the department was unaware of the case.
- Body Camera or Other Footage: If an officer's jurisdiction supports the use of body cameras or other video footage, then an officer should attempt to obtain a copy of it to review as soon as possible. This can be invaluable later when a complaint of excessive force is raised.
- Stay in Public View, if Possible: Another tip that we often provide for law enforcement officers is to stay in sight of other officers and the public when possible during potential use of force claims. An individual is more likely to claim excessive use of force when there are few other witnesses. This goes along with Tip #1. Also, where possible use voice commands that can be heard by others prior to the use of force.
- Get Legal Advice: When a use of force claim arises it is very important to get legal advice. This is not the time to wing it. It is critical that the officer contact legal counsel that can advise them of their rights and who they can and cannot speak to. It is not unheard of for plaintiffs' lawyers to attempt to contact an officer directly right after an arrest. The officer involved in the use of force claims should not be speaking with them, but their own counsel or the department's attorneys.
If a law enforcement officer has been accused of excessive force, they need to obtain counsel and likely legal representation in order to protect them. We represent law enforcement officers in the defense of excessive force allegations. Please contact our firm at (703) 668-0070, www.berrylegal.com or visit our Facebook Page.