Officers should use physical force only for the purpose of effecting a lawful seizure (including an arrest or detention), carrying out a lawful search, preventing imminent physical harm to themselves or others, or preventing property damage or loss. Agencies should promote this objective through written policies, training, supervision, and reporting and review of use-of-force incidents.
Comment:
a. Definition of “force.” Although there are many different definitions of “force” used in law-enforcement law and policy, in these Principles, “force” refers to physically touching a person or object either directly or indirectly, such as by use of a weapon, in order to control or restrain a person, or to seize, examine, or damage property. It does not include nonphysical efforts by officers to influence conduct through commands, warnings, or persuasion, although those efforts can be used to control a person and can be used to avoid the need for physical force.
b. Definition of “deadly force.” “Deadly force” refers to physical force that creates a substantial risk of death or serious physical injury, whether or not death results. Except where these Principles make an express distinction, “force” includes both deadly and non-deadly force.
c. Objectives of force. Law-enforcement agencies face the unfortunate reality that some individuals will fail to comply with officer commands and will impede officer efforts, sometimes threatening public order and safety. Officers are therefore given the authority to use force in some circumstances. This authority is a serious responsibility that must be exercised judiciously and with conscious respect for human life, dignity, and liberty. Although the failure to use force also imposes risks, balancing the competing concerns requires that force only be employed for the purpose of achieving an important state end, namely, to conduct a lawful seizure, to conduct a lawful search or frisk, to secure evidence, to prevent imminent physical harm to officers or others, or to prevent property damage, property loss, or evidence destruction. In contrast, force should not be used to punish an individual or retaliate for an individual’s conduct or attitude. Moreover, force should not be used to enforce a lawful command unless compliance itself is important to serve public order, officer or public safety, or criminal adjudication. Even if enforcing a command serves an important and legitimate goal, and an individual refuses to comply, the force used should be only as much as is needed to overcome noncompliance, as is developed further in § 7.03. Given the central importance of safeguarding human life, deadly force should be used only to stop a credible threat of death or serious physical injury to the officer or others. Even non-deadly force, however, can cause serious nonphysical harm, serious physical injury, or unexpected death, and should therefore be used with restraint, and in adherence to these Principles. Similarly, force should not be threatened, such as by brandishing a weapon, if using force would not be permitted under these Principles. Drawing or brandishing a weapon can escalate a dangerous situation and increase the risk of injury.
d. Promoting appropriate use of force. Although many Sections in this Part should be promoted by agency policy, training, and supervision, agency participation in ensuring the appropriate use of force is especially critical. To emphasize the role of agencies, the Sections in this Chapter state that role expressly. This reference is not intended to suggest that other Sections in this Part or others should not be furthered by similar means.
e. Relationship to other Sections. This Section states the permissible purposes of use of force by law-enforcement officers. Even if force is intended to serve one of the purposes stated in this Section, the decision to use force, and the kind and degree of force employed, should comply with the requirements of §§ 7.03 to 7.06. Thus, officers should use the minimum force necessary to serve the law-enforcement purpose safely (§ 7.03); they should seek to avoid force if circumstances permit (§ 7.04); even if force is necessary to serve a permissible purpose, it should not be used if the harm the use of force is likely to cause is disproportionate to the threat to or the significance of the public interest (§ 7.05); and officers should provide clear instructions and warnings before using force whenever feasible (§ 7.06).
Reporters’ Notes
The definitions of “force” and “deadly force” in this Section are consistent with both judicial rulings and state and federal statutes. See Mark A. Henriquez, IACP National Database Project on Police Use of Force, in National Institute of Justice, Use of Force By Police: Overview of National and Local Data 19 (1999); see also International Association of Chiefs of Police, Police Use of Force in America 2001, at 1 (2001), http://www.theiacp.org/Portals/0/pdfs/Publications/2001useofforce.pdf (“The IACP use of force project defines force as ‘that amount of effort required by police to compel compliance from an unwilling subject.’”); cf. Tom McEwen, National Data Collection on Police Use of Force 5-6 (1996) (describing varying definitions of “force” among law enforcement and researchers, and questioning whether the presence of officers or initial verbal commands should be included in such definitions).
“Deadly force” is defined—by the Model Penal Code and by federal and state courts and statutes—as physical force that creates a substantial risk of death or serious physical injury. See Model Penal Code § 3.11(2) (Am. L. Inst. 1985) (defining “deadly force” as force that creates “substantial risk of causing death or serious bodily injury”); Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (“We also hold that in this circuit ‘deadly force’ has the same meaning as it does in the other circuits that have defined the term, a definition that finds its origin in the Model Penal Code” and noting that “[a] definition including ‘a substantial risk of serious bodily injury’ is used by police in all fifty states, the District of Columbia, and Puerto Rico”); see, e.g., N.Y. Penal Law § 10.00(11) (“‘Deadly physical force’ means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.”); 10 C.F.R. § 1047.7(a) (“Deadly force means that force which a reasonable person would consider likely to cause death or serious bodily harm. Its use may be justified only under conditions of extreme necessity, when all lesser means have failed or cannot reasonably be employed.”); Kenneth Adams, What We Know About Police Use of Force, in Use of Force by Police, supra, at 1, 4 (1999) (describing definition of “deadly force”); Deadly Force, Black’s Law Dictionary 760 (10th ed. 2014) (“[v]iolent action known to create a substantial risk of causing death or serious bodily harm.”); Restatement of the Law Second, Torts § 131, “Use of Force Intended or Likely to Cause Death,” Comment a (Am. L. Inst. 1965) (“In determining whether the particular means used to effect an arrest are privileged under the rule stated in this Section, the fact that they are or are not intended to cause death or are or are not such that the actor, as a reasonable man, should realize that they are likely to cause such a result, is decisive; the harm which results from their use is immaterial.”); see also International Association of Chiefs of Police, National Consensus Policy on Use of Force (January 2017), at http://www.iacp.org/Portals/0/documents/pdfs/National_Consensus_Policy_On_Use_Of_Force.pdf (defining “deadly force” as “Any use of force that creates a substantial risk of causing death or serious bodily injury.”).
In addition to force that injures or creates a risk of injury to a person, force that results in property damage may also constitute a seizure that could violate the Fourth Amendment. Although a search or an entry may be lawful, “excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment.” United States v. Ramirez, 523 U.S. 65, 71 (1998); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (“A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.”); Foreman v. Beckwith, 260 F. Supp. 2d 500, 505 (D. Conn. 2003) (“when officers act unreasonably in damaging property during the execution of a search warrant, they may be subject to liability for that damage.”). However, courts recognize that some property damage may be necessary for the officers to perform a lawful search. See, e.g., Dalia v. United States, 441 U.S. 238, 258 (1979) (“officers executing search warrants on occasion must damage property in order to perform their duty.”).
Both federal constitutional rulings and state statutes and rulings also reflect the view expressed in this Section that all uses of force must be justified by a lawful objective. At a minimum, all police uses of force prior to conviction must satisfy the standards set by the U.S. Constitution in the Fourth, Fifth, and Fourteenth Amendments, as interpreted by the decisions of the U.S. Supreme Court and lower federal courts. Those rulings indicate that force is permissible only when it is used to accomplish lawful police objectives. See, e.g., Scott v. Harris, 550 U.S. 372, 383 (2007) (focusing on the “threat to the public” that the officer was seeking to eliminate); Graham v. Connor, 490 U.S. 386, 396 (1989) (including as one of the factors in the Fourth Amendment analysis whether there was an “immediate threat to the safety of the officers”).
Most states also have statutes governing the use of force. They typically mirror this Section by setting out permissible uses of force in relation to lawful justifications. See, e.g., Cal. Penal Code § 196; Fla. Stat. § 776.05; Miss. Code Ann. § 97-3-15. Others define the scope of permissible force through common-law defenses to suits and criminal proceedings against police officers for excessive force. See, e.g., Gnadt v. Commonwealth, 497 S.E.2d 887 (Va. Ct. App. 1998) (finding that police officer use of force is not a battery so long as it is justified). Though states may set standards that exceed constitutional minimums, and state statutes differ somewhat in their details, state laws more explicitly than constitutional law emphasize that force must be necessary to achieve an arrest or other law-enforcement end, an emphasis reiterated in this Section. See, e.g., Conn. Gen. Stat. § 53a-22(b) (“[A] peace officer . . . is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense, unless he or she knows that the arrest or custody is unauthorized; or (2) defend himself or herself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.”); Haw. Rev. Stat. § 703-307(1) (“[T]he use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.”); 720 Ill. Comp. Stat. 5/7-5(a) (“A peace officer . . . is justified in the use of any force which he reasonably believes to be necessary to . . . defend himself or another from bodily harm while making the arrest.”). See also Reynolds v. Griffith, 30 S.E.2d 81, 83 (W. Va. 1944) (“It is also well settled that officers, in making arrests, may not legally do more than is necessary to bring the person sought to be arrested within the officer’s control.”); Ortega v. State, 966 P.2d 961, 966 (Wyo. 1998) (approving jury instruction that states “[I]f the officer uses force in excess of what is reasonable and necessary to effect compliance, then he cannot be deemed to be engaged in the lawful performance of his duties.”); Restatement of the Law Second, Torts § 131, Comment f (Am. L. Inst. 1965) (“The use of force intended or likely to cause death for the purpose of arresting another for treason or for a felony is not privileged unless the actor reasonably believes that it is impossible to effect the arrest by any other and less dangerous means.”).