Principles of the Law, Policing

Officers should not use more force than is proportional to the legitimate law-enforcement objective at stake. In furtherance of this objective:

• (a) deadly force should not be used except in response to an immediate threat of serious physical harm or death to officers, or a significant threat of serious physical harm or death to others;
• (b) non-deadly force should not be used if its impact is likely to be out of proportion to the threat of harm to officers or others or to the extent of property damage threatened. When non-deadly force is used to carry out a search or seizure (including an arrest or detention), such force only may be used as is proportionate to the threat posed in performing the search or seizure, and to the societal interest at stake in seeing that the search or seizure is performed.

Comment:

a. Policy. Proportionality requires that any use of force correspond to the risk of harm the officer encounters, as well as to the seriousness of the legitimate law-enforcement objective that is being served by its use.This requirement of proportionality operates in addition to the requirement of necessity. It means that even when force is necessary to achieve a legitimate law-enforcement end, its use may be impermissible if the harm it would cause is disproportionate to the end that officers seek to achieve. Thus, the proportionality principle demands that law-enforcement interests go unserved if achieving them would impose undue harm. As the U.S. Supreme Court has noted, “It is not better that all felony suspects die than that they escape.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). Thus, when an officer faces a minor threat to the officer’s safety, force should not be disproportionate to the physical harm that is threatened. When an officer faces resistance or a threat to the success of an arrest, search, or other law-enforcement activity justifying the use of force, force should not be disproportionate either to the threat or to the significance to the public interest in the specific activity that the officer is using force to achieve. Where engaging in a law-enforcement activity, such as an arrest, may result in a use of force out of proportion to the societal interest in the activity, officers should look for alternatives to the activity in order to minimize the likelihood of disproportionate force.

As noted in § 7.01, this Section is not intended to create a liability rule for policing. Accordingly, it states the objective that force should be proportional to the interests at stake. In practice, officers will not always be able to calibrate the use of force precisely to the degree of threat they face or to the significance of the public interest, and liability rules should reflect that fact.

Subsection (a) limits deadly force to those situations in which an officer is confronted with an immediate threat of serious harm or death to himself or a significant threat to the public. Thus, this Section permits stopping a resisting or escaping suspect only if he or she poses such a threat. This Section does not take for granted that a person suspected of a crime involving force or the threat of force inevitably poses such a threat. This is consistent with the reasoning of Garner, which states that “[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so,” Garner, 471 U.S. at 11, but it would limit dicta in both Garner and Scott v. Harris that suggests that deadly force may be used against any suspect fleeing a crime in which violence was used or threatened, on the ground that such a suspect always poses a sufficient threat to society to justify such force. Scott v. Harris, 550 U.S. 372, 382 n. 9; Garner, 471 U.S. at 10-11. In addition, pursuant to this Section, force should not be used against individuals who pose a threat only to themselves or to property.

The proportionality principle is implicit in many agency policies, use-of-force matrices, and narrative descriptions of force options that are used in training or policy. Nevertheless, departments should make explicit that officers may use greater force only when the significance of the public interest justifies it. Moreover, department policies often do not expressly acknowledge that where the harms of force are disproportionate to the public goal the use of force serves, police officers should permit the goal to go unserved. For example, where the public interest is in enforcing a minor criminal law, it may be better to permit a suspect to escape than to use force in a way that risks great harm to the suspect or third parties.

The U.S. Supreme Court’s ruling in Garner and other constitutional cases makes clear the need to limit deadly force to situations in which officers or civilians face a serious or deadly threat from a suspect. The Supreme Court has not expressly extended the principle of proportionality to the use of force by officers more generally, but doing so is consistent with the Court’s approach to the use of force generally, which requires that courts “‘balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’” Scott v. Harris, 550 U.S. 372, 383 (2007) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).

b. Policies barring or limiting certain uses of force. Someuses of force are almost invariably disproportionate and for that reason should be barred. Many agencies already prohibit firing warning shots or firing at or from moving vehicles except in situations in which the officers or others face an imminent and unavoidable threat of death or serious injury. Similarly, agencies commonly bar or limit the use of hog-tying, chokeholds, neck restraints, and other restraints that pose a heightened danger of asphyxiation.

Agencies also provide and train officers in using intermediate weapons that assist in forcing compliance and restraining individuals, but are less likely to cause death, in order to permit officers to use proportional force. Officers should be equipped with some less-lethal tools for using force.

c. Public interests. Proportionality demands different responses in different law- enforcement situations, depending on the public interests at stake and the risks of harm and indignity. Physical harms to individuals are not the only harms that must be taken into account. The use of force can damage or destroy property. It can also cause psychological damage to individuals. All this should also be considered in evaluating the proportionality of force. This evaluation must also recognize that different populations are differently susceptible to harm from the use of force: vulnerable individuals such as juveniles, the disabled, the mentally ill, and the elderly may be at special risk. Thus, the harms of a use of force may be proportional to the law-enforcement goal it serves when used against one member of the public, but disproportionate to the same goal when used against someone more vulnerable to harm.

d. Duty to render aid. Proportionality requires caring for those against whom force is used, once a situation is sufficiently under control. Agencies should instruct and require officers to render necessary medical aid to those against whom force is utilized as soon as is practicable following imposition of such force.

Reporters’ Notes

Proportionality is an important component of a harm-minimization use-of-force strategy. The proportionality principle is plainly visible in the U.S. Supreme Court’s admonition, “It is not better that all felony suspects die than that they escape.” Tennessee v. Garner, 471 U.S. 1, 11 (1989); see, e.g., Scott v. Harris, 550 U.S. 372, 378 (2007) (emphasizing the “great risk of serious injury” posed by car chase); Giles v. Kearney, 516 F. Supp. 2d 362, 368-369 (D. Del. 2007) (finding that “amount of force” an officer used was reasonable because it was “proportionate”). Nonetheless, state laws on use of force do not adopt a proportionality principle beyond limiting the use of deadly force. Most states directly incorporate the language of Garner into their statutes on the use of deadly force. See, e.g., N.H. Rev. Stat. § 627:5. But some states have not even updated their deadly force laws to reflect the Supreme Court’s decision in Garner. See, e.g., Cal. Penal Code § 196; Fla. Stat. § 776.05; Miss. Code Ann. § 97-3-15; N.Y. Penal Law § 35.30; 13 Vt. Stat. Ann. § 2305. And none of the states incorporate a proportionality principle with respect to the use of non-deadly force, despite widespread acceptance of such a principle by law-enforcement agencies.

The U.S. Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1 (1985), supports limiting the use of deadly force to those circumstances in which the suspect poses a threat of harm to the officer or to others. However, the Court also suggested by implication that any person suspected of having committed a crime involving violence or the threat of violence poses such a threat. See Garner, 471 U.S. at 11-12 (“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”). The Court itself interpreted Garner this way in Scott v. Harris, 550 U.S. 372, 382 n. 9 (reading Garner to permit deadly force against a suspect who has committed a crime simply because “his mere being at large poses an inherent danger to society”). However, the Court did not explain or support the assumption that probable cause that one has committed one crime involving violence or the threat of violence is sufficiently predictive of an ongoing threat to the public to justify permitting deadly force against such suspects, and the assertion seems problematic in light of contemporary concerns about the use of deadly force. See Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307 (2016). One can imagine circumstances in which the commission of a violent crime—for example a crime of passion directed at a particular individual—implies nothing about an ongoing threat. Nor does it appear from Garner that the Court considered carefully the implications of its assertion.

Many agencies have explicitly incorporated a concept of proportionality into their use-of-force policies, particularly with respect to the use of deadly force. See, e.g., Maryland Police and Correctional Training Commissions, Model Policies for Law Enforcement in Maryland 27 (Sept. 27, 2007), http://mdle.net/pdf/mopoman07.pdf; Dallas Police Dept. General Order 901.00, Response Continuum – Philosophy (June 3, 2015), https://static1.squarespace.com/‌static/‌5699‌61‌51cbced68b170389f4/t/569ad58a0e4c1148e6b1079b/1452987794280/Dallas+Use+of+Force+Policy‌.pdf; San Antonio Police Dept. General Manual, Procedure 501 – Use of Force 1 (Nov. 10, 2015) (stating force may be used “on an ascending scale of the officer’s presence, verbal communications, open/empty hands control, physical force, intermediate weapon and deadly force, according to and proportional with the circumstances of the situation.”), https://‌www.‌san‌antonio.‌gov/‌Portals/‌0/‌Files/SAPD/501-UseOfForce-11-10-15.pdf; Seattle Police Manual, Use of Force Policy § 7.000.4 (2013), https://www.seattle.gov/police-manual/title-8—use-of-force/8000—use-of-force-‌core-p‌rinciples.

See also Police Executive Research Forum, Guiding Principles on Use of Force 38 (2016), http://www.policeforum.org/assets/30%20guiding%20principles.pdf (“Police use of force must meet the test of proportionality”).

In addition, many other departments utilize use-of-force matrices or tables in training officers, which are structured to dictate that officers use only proportional kinds and amounts of force. See, e.g., William Terrill, Eugene A. Paoline III & Jason Ingram, Final Technical Report Draft: Assessing Police Use of Force Policy and Outcomes 16-17 (2011), https://‌www.‌‌ncjrs.gov/pdffiles1/nij/grants/237794.pdf (finding that a “substantial majority of police agencies” use a “force continuum structure” typically using a linear design); National Institute of Justice, Office of Justice Programs, The Use-of-Force Continuum, http://www.nij.gov/topics/law-en‌forcement/officer-safety/use-of-force/pages/continuum.aspx (Aug. 4, 2009). These tools often specify categories of less-lethal force that must be used prior to the use of lethal force and link these to categories of suspect actions, such as resistance. For a catalogue of use-of-force spectrums used by departments, and an analysis of the relative effectiveness of these spectrums in guiding uses of force, see Joel H. Garner & Christopher D. Maxwell, Measuring the Amount of Force Used By and Against the Police in Six Jurisdictions, in National Institute of Justice, Use of Force By Police: Overview of National and Local Data 37 (1999). For visual models of use-of-force continuums, see Int’l Ass’n of Chiefs of Police, Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement 116 (2006); National Institute of Justice, The Use-of-Force Continuum, supra.

Though these matrices and visual representations highlight the concept of proportional uses of force, they focus on the correspondence between officer conduct and suspect resistance. This focus misses other components of a full proportionality analysis. Thus, these tools typically do not consider whether some law-enforcement interests simply are not worth the harm necessary to achieve them in light of larger law-enforcement and public goals. They focus on bodily harm, rather than the full range of harms that individuals suffer as a result of the use of force, such as emotional harm and damage to property. They often do not address the specific issues that arise when officers respond to vulnerable individuals, such as the mentally ill, disabled individuals, and juveniles. See, e.g., Jeffrey S. Golden, De-escalating Juvenile Aggression,Police Chief, May 2004, at 30, https://‌www.researchgate.net/profile/Jeff_Golden/publication/‌256374548_‌De‌es‌ca‌la‌ting_‌Juvenile_‌Aggres‌sion/links/00b7d522629f647565000000/Deescalating-Juvenile-Aggression‌.pdf. They may or may not acknowledge that different rules are required in specific contexts, such as mass protests, vehicle pursuits, or domestic-violence situations. Thus, policies should move beyond the limited concept of proportionality reflected in existing tools to take account of these varied factors.

Many agencies, as noted, bar specific uses of force that are invariably disproportionate. See, e.g., New York City Police Dept., Patrol Guide § 203-11 (Aug. 1, 2013), http://‌www.‌nyc.‌gov/‌‌html/‌ccrb/downloads/pdf/pg203-11-use-of-force.pdf [http://perma.cc/PR2Y-YYUK] (prohibiting the use of chokeholds); Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of the Circumstances Relevant to Assessing the Police Use of Force Against Emotionally Disturbed People, 34 Colum. Hum. Rts. L. Rev. 261, 314-315 (2003); Brian Roach, Kelsey Echols & Aaron Burnett, Excited Delirium and the Dual Response: Preventing In-Custody Deaths, FBI L. Enforcement Bull., July 2014, https://‌leb.‌fbi.gov/‌2014/‌july/excited-delirium-and-the-dual-response-‌preventing-in-custody-deaths. In addition, many agencies provide officers with less-lethal weapons pursuant to policy, and they provide training on those weapons. William Terrill, Eugene A. Paoline III & Jason Ingram, Final Technical Report Draft: Assessing Police Use of Force Policy and Outcomes 19 (2011), https://www.ncjrs.gov/‌pdffiles1/‌nij/‌grants/‌237794.pdf (noting that many agencies treat electronic-control weapons and chemical sprays “on their own distinct level of force.”); see also Police Executive Research Forum, 2011 Electronic Control Weapon Guidelines(2011), http://‌www.policeforum.org/‌assets/docs/‌Free_Online_Documents/Use_of_Force/electronic%20control%20weapon%20guidelines%202011.pdf; Police Executive Research Forum, Guiding Principles on Use of Force 10 (2016), http://www.policeforum.org/‌assets/‌30%20‌guiding%20‌principles.pdf (comparing hours of recruit training provided for different types of weapons).

Training is important to ensure that proportionality principles are applied in the use-of-force context. Already, departments train on proportionality through use-of-force continua. Many officers also receive training in use of firearms, batons, pressure-point control, ground fighting, and other types of use-of-force strategies. See Brian A. Reaves, State and Local Law Enforcement Training Academies, 2006, at 4, 9, 14 (2009), http://www.bjs.gov/‌content/‌pub/‌pdf/‌slleta06.pdf. Officers likewise should be trained to decide which techniques are proportional to the threat they are facing, in accordance with their use-of-force continuum. See Protecting Civil Rights, supra, at 119; see also Police Executive Research Forum, Re-Engineering Training on Police Use of Force 46-47 (2015), http://www.policeforum.org/assets/‌reengi‌neer‌ing‌training1‌.pdf. All agencies should consider providing additional training on proportionality in use of lethal and nonlethal force. The IACP recommends training on use of force, and specifically less-lethal types of force, and, without endorsing a proportionality principle explicitly, the IACP counsels use where available of “alternatives to higher levels of force,” and also notes that deadly force “should not be used against persons whose actions are a threat only to themselves or property.” International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 3-4.

The Police Executive Research Forum (PERF) has also advocated for a proportionality approach to use of force, stating that departments should adopt policies holding themselves to a proportional approach higher than the legal standard laid out by the U.S. Supreme Court. See Police Executive Research Forum, Guiding Principles on Use of Force (2016), http://‌www.‌policeforum.org/assets/30%20guiding%20principles.pdf. Several organizations have criticized the PERF report’s approach to proportionality. Most controversially, the PERF report states that: “Proportionality [] requires officers to consider how their actions will be viewed by their own agencies and by the general public, given the circumstances.” Id. at 21. This Section departs from this aspect of PERF’s definition of “proportionality,” which incorporates the perspective of the public. This Section reflects a more traditional understanding of proportionality, one that is consistent with common-law public-authority defenses and constitutional reasonableness, while also taking into account public interests. See Rachel A. Harmon, When is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1178-1183 (2008) (discussing role of proportionality in police uses of force). It is therefore not subject to the same set of critiques or controversies as the PERF report. This Section nevertheless shares the conclusion that U.S. Supreme Court principles do not adequately address proportionality. Moreover, agencies may be well advised to carefully consider perspectives of the public and the community when considering policy and training on the use of force. See Guiding Principles on Use of Force, supra, at 8, 21; Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 872 (2015) (describing the harms from the use of and threat of force and advocating that they be considered in making police policy).