Some Thoughts on Force

The authority to use force is one of the most significant aspects of policing. As I continue to learn about force, I’ve seen an incredible change in how much attention our society pays to it. In August 2014, there was a controversial officer-involved shooting in a small town in Missouri called Ferguson. Officer Darren Wilson used deadly force against Michael Brown, and the incident set off a protracted and bitter national discussion regarding force. But how does evidence inform this conversation? How does evidence help us genuinely understand the contemporary use of force? To better understand what’s being debated, it’s helpful to start at the beginning, examine constitutional law, address related issues, and review relevant statistics. 

First, we need to answer an elemental question: what is force? In the state of Pennsylvania, for example, there are only two statutory types: deadly and non-deadly force. Section 501 of the Crimes Code defines deadly force as “force which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.” Therefore, non-deadly force is everything else. Also, the classification of force is based on the use rather than the tool. A baton strike is typically non-deadly force, but a head strike is deadly force. Agencies often have additional categories, such as soft empty-hand control techniques, hard empty-hand control techniques, unarmed defensive tactics, intermediate force. These are primarily administrative, and useful in a force continuum (which will be addressed in more detail later). 

Force is most often regulated through in the civil arena using a constitutional law analysis. While we know, officers can be criminally charged in state court for on-duty uses of force, but thankfully, this is rare. Legal action against officers is typically in the form of a federal civil rights lawsuit under Title 42 United States Code Section 1983. 

Section 1983 is the mechanism by which someone can sue the government and their agents in federal court if they believe their constitutional rights have been violated. Section 1983 does not create any new rights; it’s merely a tool to vindicate the alleged deprivation of other rights. 

So, let’s briefly examine the primary federal constitutional law regarding use of force. 

The first one I’ll discuss is Tennessee v Garner, a 1985 United States Supreme Court case. 

On October 3, 1974, Memphis police were dispatched to a residential burglary. The responding officers heard glass breaking, and one went around back. The officer saw the suspect at a 6ft fence and could see his hands. He was reasonably sure the suspect was unarmed. The officer saw the suspect’s face and believed him to be 17 or 18. Edward Garner was 15 years old. The officer ordered Garner to halt, and he started to climb the fence. The officer realized Garner would escape if he got over the fence and shot him. Garner was struck in the back of the head and died shortly after arrival at the hospital. 

The shooting was within the Memphis Police Department’s policy and legal under Tennessee state law, but a lawsuit was still filed. The case made it to the United States Supreme Court. The U.S. Supreme court ruled that deadly force may be used against a fleeing suspect only if there is a significant threat of death or serious bodily injury. In other words, deadly force cannot be used solely to prevent escape. 

And in 1989, the United States Supreme Court decided Graham v Connor. 

The second case I’ll talk about is Graham vs. Conner. On November 12, 1984, Dethorne Graham of Charlotte, North Carolina, was a diabetic who felt his blood sugar getting low. Graham had his friend William Berry drive him to a convenience store. It was a fairly urgent situation, and Berry pulled into the lot rather abruptly. Graham jumped out of the car and ran inside. He saw a long line at the register, ran back outside, and jumped back into the car. Berry then pulled out quickly. The police (unaware of the medical situation) observed what took place and thought a robbery was occurring. They stopped the car, and it didn’t go well for Graham. He ended up with a bruised forehead, injured wrist, and a broken foot. 

His case was eventually heard by the United States Supreme Court, who said the use of force must be objectively reasonable. Some points in the case are beneficial to police; such as force must be “judged from perspective of reasonable officer on scene, not with the 20/20 vision of hindsight.” The Supreme Court went on to say, “The calculus of reasonableness must embody allowance for the fact that police 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.” But here’s the part that’s best for police – typically, when courts evaluate police conduct, it’s a simple thumbs up or down. The court says, “this was acceptable” or “this was unsatisfactory.” But in Graham, the Supreme Court essentially told police how their use of force would be evaluated. They provided a sort of roadmap for the future, based on three factors. The Graham factors are 1) the severity of the crime at issue 2) the threat to the safety of officers or others, and 3) whether the suspect is actively resisting or attempting to evade arrest by flight. 

About a dozen years ago, I learned from Pat Gallagher and Jack Ryan about breaking the three Graham factors into five. These five factors were made into an acronym, which can be used as a memory device. I can’t take credit for it since I didn’t develop it, but I’ve used it ever since. 

The acronym is STARE. The S stands for the severity of the crime, the T is the threat to safety, the A is for actively, the R stands for resisting, and the E is for evading arrest by flight. 

Once I learned it, I used it whenever I had to write a report explaining my use of force. Later, I used it whenever I had to review an officer’s report explaining their use of force. Ultimately, I used it whenever I had to review a sergeant’s approval of a use of force report. It’s a handy way to ensure there’s sufficient detail in force reports. 

So, Graham and its factors have been working pretty well for about 20 years, but now things are getting a little murky. Why? Because the Graham factors presuppose a criminal law enforcement scenario. We all know that police can use force (when necessary) when arresting people, but let’s think about why. It’s because arresting people is a governmental interest. But arresting people for criminal behavior isn’t the only reason police may have to use force. Police often deal with people in a mental health crisis. Some estimates say as many as one in four officer-involved shootings involve people with mental illness. So, protecting these people from themselves and getting them help is also a compelling governmental interest. The Graham factors are not easily applied when the governmental interest is getting someone treatment rather than arresting them. Law enforcement will have to evolve in this area, or it’s the courts that will change us, and perhaps not in a way we’ll like. 

Another evolving aspect is the force continuum. As you may know, a force continuum is a graphic representation of force options in response to varying threat levels. Initially, a ladder model was popular. But it sometimes confused people into thinking an officer had to proceed through all steps in order, which isn’t true. An officer may be justified in going from talking to shooting in a second. So, a wheel model became more widely used because it was easier to show how officers can appropriately respond to whatever level of threat presented to them. 

If you were to look at several continua, you’d probably see similar but not identical language – words like attacker, assailant, and assault. So, while the wording may be slightly different, they should all have the same goal, that is, objectively reasonable force as required by Graham. 

Well, here’s where the problem comes in. All the use of force continua I’ve reviewed, and I’ve evaluated well over 100, say that an officer can use an impact weapon against an assailant. And that sounds pretty reasonable on its face. If someone is attacking an officer, he should be able to hit the suspect with a baton, right? And that’s fine, as far as it goes. But things get problematic when we look at the officer-subject factors. Let’s say the officer is male, 25, 5 ft 10, and 190 pounds. The subject is a woman, 65, “5 ft nothing and a hundred and nothing.” She’s marching in a demonstration, and she’s agitated. She’s so upset that she starts slapping the officer who’s asking her to stay out of the roadway where traffic is moving. It’ll likely be tough to explain at deposition or trial why a baton strike was objectively reasonable in that situation. 

So, as a suggestion – establish objective reasonableness as your policy and use the force continuum as a training aid. Teach your officers objective reasonableness as the rule, and then use the continuum to illustrate the type of force LIKELY to be found objectively reasonable in SIMILAR circumstances. 

With these concepts in mind, let’s look at some use of force statistics. 

How many fatal officer-shootings occurred in 2018? Different sources report varying totals. Killed By police provides one number, while Mapping Police Violence indicates another. But Fatal Force, operated by the Washington Post, says 992 and is generally considered the most reasonable estimate. 

So, those are raw numbers, now let’s examine them in context. From reputable sources such as the Bureau of Justice Statistics (BJS), we get post-Ferguson statistics. Some consider them estimates, but they’re accurate enough for this discussion. 

There are about 254 million adults (16 and over) in the United States, and about 701,000 state and local law enforcement officers. 

In one year (2017, the latest year for which data is published), those officers engaged in 27.1 million police-initiated adult contacts (of 54 million total adult contacts), including 21.8 million traffic stops, 2.5 million street stops, and 2.8 million custodial arrests. 

In all those contacts, 81,000 people were threatened with force, 488,000 people were handcuffed, and 190,000 people were pushed, grabbed, hit, or kicked. As far as higher levels of force used, less than 27,000 people were pepper-sprayed or Tased (baton strikes were not listed). If the math is right, that’s less than one-tenth of one percent. Now, BJS says we should be cautious about those last two reported numbers, because of the small sample size, but from my perspective, they don’t sound extreme. 

And if we view those numbers through another lens, let’s not forget the 46 officers murdered in 2017, and the 60,211 officers assaulted. Of them, 17,476 (about 29%) required medical treatment. It’s not a direct comparison. Still, there were more than twice as many officers assaulted in some way than serious use of force incidents. 

The authority to use force is one of the most significant aspects of policing. The law enforcement profession must maintain it takes all reasonable steps ensuring force is exercised in a responsible manner, especially with due regard for constitutional standards. However, an evidence-based examination of contemporary use of force doesn’t indicate the epidemic of excessive force described by some activists and commentators. 

Ashley Heiberger is an ASEBP member from Pennsylvania. He’s a retired police officer now working in federal oversight and can be reached at aheiberger@moravian.edu. 

 

 

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