Southeast Missouri State University

1
Southeast Missouri State University Dr. Andrew
Fulkerson Civil Law and Liability Chapter 8 Use
of Force
2
Use of Force - Introduction

• Law enforcement officers
• Correctional officers
• Authorized to use force

3
Use of Force - Introduction

• Police use of force
• to make arrests,
• in self-defense

4
Use of Force - Introduction

• Correctional officers use of force
• self-defense
• maintain order
• stop disturbances

5
Use of Force - Introduction

• Use of force is limited and must be justified
• Improper or excessive force creates civil
  liability
• Excessive force violates protected rights
• Officers must be aware of limitations on use of
  force

6
Use of Force - Introduction

• Supervisor responsibility
• Role in establishing department guidelines
• Training of officers
• Investigating claims of excessive force

7
Studies on Use of Force

• Hopkins (1931) study of force in NYPD
• 23 of cases found use of physical force
• force included
• strikes
• rubber hose
• blackjack
• suspect held out a window

8
Studies on Use of Force

• Much research on deadly force
• High profile
• More complete record-keeping

9
Studies on Use of Force

• Fewer studies on non-deadly force
• Studies by observation of officers on patrol
• Use of force is infrequent
• Caused by antagonistic behavior of citizens
• Non-deadly force studies by reviewing PD reports
• Force rarely used
• Usually in arrest situations

10
Violent Crime Control and Law Enforcement Act of
1994

• Congressional concern of excessive force by
  police
• Authorizes DOJ to sue police departments for
  excessive use of force
• National database of use of force reports
• Force used in only 2 of arrests
• Many arrests use less force than would be
  justified
• Many reported incidents use only open-hand
  tactic and cuffs

11
National Data Use of Force

• Police contact with citizens
• 45 million persons age 12 or over (21 pop.)
• Had contact with police
• Contacts were
• 48 white
• 28 hispanic
• 16 black
• 87 male
• 65 age 12-29
• White females 25-65 more likely to initiate
  contact
• Less than one-third were police initiated

12
National Data Use of Force

• Police use of force during contact
• 43.3 million contacts without force
• 4.43 million persons questioned as suspect
• 1.2 million persons handcuffed
• .8 million handcuffed only

13
National Data Use of Force

• Police use of force during contact
• Force used in .5 million contacts
• Type of force
• Hit pushed choked threatened with flashlight
  dog threatened with or sprayed threatened with
  gun
• Men, minorities, persons under age 30 more likely
  to be handcuffed
• 740,000 subject to Terry frisk
• 70 handcuffed and force used or threatened

14
Use of Force Litigation

• LRP (1992) studied police shootings
• ?s win 63 of cases
• Average award of 1.3 million

15
Use of Force Litigation

• Kappeler (1996) reviewed published 1983 cases
• Excessive force claims were 6th most common type
  of successful claim.
• ?s win 56 of cases.
• Average award for excessive force was 178,878

16
Use of Force Litigation

• Ross (2000)
• Failure to train in non-lethal force was most
  common complaint against administrators
• Police win 57 of cases of failure-to-train in
  non-lethal force
• Police win 60 of failure to train in lethal
  force cases

17
Studies on Use-of-Force in Corrections

• Use of force in corrections can result in
• Disturbances
• Riots
• Physical injury and death
• Property damage
• Civil liability

18
Studies on Use-of-Force in Corrections

• Few studies on use of force by correctional
  officers
• Studies on prisoner assaults of officers suggest
  most are unprovoked

19
Studies on Use-of-Force in Corrections

• Ross (1990) study use of force policies in state
  and fed adult prisons
• 41 states and Federal Bureau of Prisons responded
• 90 had use-of-force policy written within three
  years of survey

20
Studies on Use-of-Force in Corrections

• Hemmens and Atherton (1999) surveyed state,
  federal, military, and juvenile institutions and
  jails in US and Canada
• 97 of jails and juvenile facilities have written
  policies
• 45 of facilities have policies for specialized
  uses of force
• Special response teams
• Specialized equipment
• Specialized restraint methods

21
Studies on Use-of-Force in Corrections

• Hemmens and Atherton (1999) study of US and
  Canadian use of force policies
• 80 allow use of chemicals on inmates
• 45 allow use of stun guns
• 2/3 of American prisons and jails allow use of
  firearms
• 17 of Canadian institutions allow use of
  firearms
• 11 of juvenile facilities allow use of firearms
• 51 of institutions reported 1-25 incidents of
  excessive force (94 of those reported the
  officer was disciplined)

22
Jurisdiction of use-of-force cases

• Federal cases
• Under 1983 must allege a constitutional
  violation
• State cases
• Under state tort law
• Assault and battery or wrongful death
• Most filed in federal court

23
Shocks the Conscience Test

• Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973)

24
Use-of-Force Litigation

• Judicial disagreements over what type of injuries
  were covered
• Some courts held ? could recover only for serious
  or severe injury
• Not every injury inflicted on a prisoner by an
  officer was violation of 14th Amendment
• Raley v. Fraser (1984)
• ? was put in chokehold four times during arrest

25
4th Amendment Interpretation

• Some courts not require severe injury and look at
  whether amount of force was reasonable under the
  circumstances.
• Some courts considered force cases as a 4th
  Amendment violation
• Unreasonable search and seizure
• What degree of force was necessary under the
  circumstances
• Balance interest of person in personal security
  against interest of government taking offender
  into custody

26
Standards Applied by Supreme Court

• Different standards to review force for different
  circumstances
• Considers status of person

27
Lethal Force

• Tennessee v. Garner, 471 U.S. 1 (1985)

28
Objectively Reasonable Standard

• Graham v. Connor, 490 U.S. 386 (1989)

29
Post-Conviction Use of Force

• Jackson v. Bishop, 268 F.Supp. 804 (E.D. Ark,
  1967), affd, 404 F.2d 571 (8th Cir. 1968).

30
Post-Conviction Use of Force

• Whitley v. Albers, 475 U.S. 312 (1986)

31
Post-Conviction Use of Force

• Hudson v. McMillian, 503 U.S. 1 (1992)

32
Use of Force Policy Considerations

• Policy philosophy
• Definitions
• Control
• Resistance
• Objectively reasonable force
• Nonlethal force and lethal force

33
Use of Force Policy Considerations

• Authority to use force
• Types of resistance
• psychological intimidation,
• verbal,
• passive,
• defensive,
• active aggression,
• aggravated active aggression)

34
Use of Force Policy Considerations

• Levels of force
• Officer presence
• Verbal instructions
• Empty-hand control (control holds, wristlocks,
  come-along holds, takedown tactics, pressure
  points, hand/leg strikes, stuns, and neck
  restraints
• Aerosols (pepper spray and other chemical agents)
• Use of dogs
• Impact weapons (batons, flashlights, Tasers, stun
  guns, etc.)
• Lethal force guidelines

35
Use of Force Policy Considerations

• Description of authorized equipment (restraints,
  restraint chair, etc.)
• Escalation/de-escalation of force
• Medical considerations
• Force and restraint of special needs prisoners
• Transportation in restraints

36
Use of Force Policy Considerations

• Reporting use of force
• Investigation of use-of-force incidents