Custodial-use-of-force policies address the legal and necessary amount of force that police and law enforcement officials are authorized to use in fulfilling their duties and responsibilities. “Custodial use of force” has been defined as the use of physical restraint by a police officer when dealing with a member of the public, or the amount of effort required by the police to compel compliance by an unwilling subject.
Notwithstanding that the majority of interactions that the police have with the general public are of a peacekeeping and problem-solving nature, inherent to the nature of police work, there are times when the police must resort to the use of force. While police are trained to exercise restraint and employ only the necessary amount of force needed, there are occasions when the use of force has been deemed to be excessive, thus raising legal as well as ethical concerns. In response to such concerns, the courts have ruled on the appropriate and legal amount of force that police and other law enforcement personnel may employ in the exercise of their responsibilities, which have in turn guided and influenced the development and promulgation of use-of-force policies throughout the nation.
Social Order and Control
Recognizing the importance of maintaining social order and control, society, through its government representatives, has established nearly 18,000 separate police and law enforcement agencies throughout the United States. Although a majority of citizens are law abiding and respect the duties and responsibilities of the police, there are individuals within society, albeit a minority, that will challenge their authority for a wide array of reasons and circumstances. These can include, but are not limited to, those individuals who commit crime, resist arrest, threaten to assault or attempt to assault the police or others, are under the influence of drugs or alcohol, experience intense stress or duress, or suffer from psychological disorders. Police work can be extremely dangerous.
In the majority of instances when police are called for peacekeeping, they are able to reconcile things amicably. Similarly, when the police need to resort to the use of force, they do so with restraint. While abuse of police authority and excessive force rightfully warrants public attention and scrutiny, it can lead to sensationalized media attention and inflammatory indictments that suggest that excessive use of force by the police is widespread. This was exemplified in 1991 in the high-profile case of Rodney King, who suffered serious injuries at the hands of the Los Angeles Police Department officers. Although King was on parole for robbery and resisted arrest, the amount of force employed by the police was determined to be excessive and unjustified, charges for which police officers were arrested, convicted, and sentenced to prison. More recently, in 2011, in the aftermath of Hurricane Katrina, officers of the New Orleans Police Department were also found guilty of using excessive force.
While such cases are alarming and underscore public concern, they are disproportionately low given the number of interactions that the police have with the general public. Research by the Bureau of Justice Statistics estimates that of the 43.5 million persons nationwide who had contact with the police over a one-year period, only 1.6 percent of these contacts involved the use or the threat of force by the police. Other studies have indicated that the police use force in fewer than 20 percent of custodial arrests.
Underscoring this point is a joint report by the U.S. Office of Community-Oriented Policing and the International Association of Chiefs of Police that revealed “a striking disconnect between public perception and reality—the public is led to believe through the media that law enforcement uses force during every tour of duty, when the reality is most officers never use or threaten the use of force during an entire calendar year. These statistics suggest that use of force by police is infrequent and that inappropriate use of force or negative force related outcomes are relatively rare events.” Nevertheless, in response to incidents when excessive force has occurred, the response has included comprehensive training, education, and the promulgation of rules and regulations and policies and procedures.
U.S. Supreme Court Decision on the Excessive Use of Force
In response to the number of controversial cases involving complaints of excessive force, the U.S. Supreme Court has weighed in and provided guidance and direction for the appropriate amount of force the police may exercise in fulfilling of their duties and responsibilities. In Tennessee v. Garner (1985), the court ruled that it is unconstitutional to use deadly force against an unarmed, nondangerous fleeing suspect, unless it is necessary “to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” And in the case of Graham v. Connor (1989), the court held that “all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen must be properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.
In an attempt to provide officers with guidance in their use-of-force decisions, jurisdictions throughout the country have developed model policies and guidelines. In New Jersey, as an example, the state Attorney General’s Office developed policies for all law enforcement personnel falling within its purview that states that a law enforcement officer may use physical force or mechanical force when the officer reasonably believes it is immediately necessary at the time in order to (1) overcome resistance directed at the officer or others, (2) protect the officer, or a third party, from unlawful force, (3) protect property, or (4) effect other lawful objectives, such as to make an arrest.
In response to the need to develop guidelines as part of their policies and procedures in the use of force, most law enforcement agencies subscribe to what has been referred to as a “use of force continuum.” The continuum provides for a series of progressive actions that an officer may take in the interest of resolving a situation that may involve a citizen’s resistance or noncompliance. The continuum consists of the following five levels:
- Officer presence. At this level, no physical force is employed; rather, merely an officer’s physical presence and professional bearing can serve to deter crime or diffuse a situation.
- Verbal command. Again, no physical force is employed, but rather an officer’s calm, clear, yet deliberate and nonthreatening commands, using inflection and aloud voice if necessary, such as “stop” or “don’t move.”
- Soft and hard techniques. When the former two approaches have not resulted in compliance, an officer may employ empty-hand control techniques to gain control of a situation. This may simply involve using holds, grabs, or joint locks. If the former is unsuccessful, officers may escalate the use of force by employing hard techniques such as the use of tactical punches or kicks.
- Nonlethal methods. These methods can be used to gain control of a situation that involves the use of blunt force such as batons, nondeadly projectiles, chemical sprays such as oleoresin capsicum, or conducted energy devices (TASERS) that discharge a high-voltage, low amperage jolt of electricity to immobilize a subject.
- Deadly force. When all of the foregoing is unsuccessful, or the situation involves an individual who poses serious or deadly threat to an officer or someone
else, firearms or strikes to vital areas may be employed.
As articulated in New Jersey’s use-of-force policy, decisions made by the police to employ the authorized use of force are among the most critical decisions made by law enforcement officers, especially considering that such actions are irrevocable. These are decisions that must be made quickly, under often difficult and unpredictable circumstances. The policy emphasizes that sound judgment and the appropriate exercise of discretion will always be the foundation of police officer decision making given the broad range of possible use-of-force situations.
While use-of-force policies are promulgated to provide the best possible legal guidance and direction, they are not intended to entirely replace police judgment and discretion when called upon to confront and address the most difficult situations. Such policies, when reinforced by comprehensive training and education, will help guide police officers when having to judiciously use force, thus safeguarding themselves as well as those of the general public.
- New Jersey Division of Criminal Justice. “Use of Force Policy, Attorney General’s Office Guidelines.” Trenton, 2011.
- Samaha, J. Criminal Law, 10th ed. Belmont, CA: Wadsworth, 2012.
- Schmalleger, Frank. Criminal Justice Today, 12th ed. Upper Saddle River, NJ: Pearson Education, 2013.
- S. Department of Justice, Office of Community Oriented Policing Services. Emerging Use of Force Issues: Balancing Public and Officer Safety Report. International Association of Chiefs of Police/COPS Office Use of Force Symposium (2012). http://www.theiacp.org/portals/0/pdfs/ emerginguseofforceissues041612.pdf (Accessed September 2013).
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