In instances in which force is used, officers should use the minimum force necessary to perform their duties safely. Agencies should promote this goal through written policies, training, supervision, and reporting and review of use-of-force incidents.
Comment:
a. Minimum force. As noted in § 7.01, these Sections assert principles to which agencies and their policies should adhere, rather than standards for legal liability. They adopt the view that use-of-force policies should be more specific and informative than the general “reasonableness” standard applied pursuant to the U.S. Supreme Court’s constitutional precedents, though these Principles may also contribute to courts’ understanding of appropriate constitutional limits on the use of force. Thus, agency policies should require officers to use only the minimum force that is necessary under the circumstances. Force cannot be considered necessary if a practical, less harmful alternative means exists for achieving the same law-enforcement ends. Force should not be used simply to resolve a situation more quickly, unless the extended delay would risk the safety of the subject, officers, or others, or if it would risk damage to property or would significantly interfere with other legitimate law-enforcement objectives. Nor should force be used before a suspect manifests an imminent threat, when alternatives to force are feasible, or after a suspect no longer threatens a law-enforcement objective.
Officers often make decisions about using force with less than perfect information, in situations that are changing rapidly and are dangerous to the officers’ own lives and to the lives of members of the community, and in situations risking psychological harm and the destruction of property. By “necessary force,” this Section refers to the minimum amount of force that a well-trained and properly equipped officer would need to use in a situation to achieve one of the legitimate objectives of force stated in § 7.02, taking into account the conditions in which the decision is made and the opportunities for reevaluation. Necessary force is that which is justified in the present or immediate moment. Force is unnecessary if it is carried out either before a legitimate objective is threatened or after a threat to a legitimate objective is resolved. Therefore, force is not to be used to retaliate for prior wrongdoing (such as resistance or flight) by a suspect, or to deter the suspect from resisting or fleeing in the future. Nor may force be used for longer than is necessary. Officers should reevaluate whether continuing to use force is necessary throughout an incident, if it is feasible and safe to do so.
b. Training and supervision. Officers will have difficulty determining the minimum force necessary unless they are trained adequately, equipped properly, and guided by policy and supervision. Law-enforcement agencies and governments play a critical role in ensuring that the use of force by officers is appropriate, because they are best positioned to ensure that these conditions are met.
Training should be designed to prepare officers and agencies to work to minimize the use of physical force prior to the moment when force is applied. As § 7.04 suggests, this includes, but is not limited to, using less harmful means of applying force when feasible (e.g., less-lethal weapons); using strategies to de-escalate interactions that could lead to the use of force; and making tactical decisions in furthering law-enforcement goals that are likely to obviate the need to use physical force (e.g., collecting additional information; using multiple officers to respond to a call; using specially trained officers and collaborations between officers and community partners to respond in situations involving emotionally disturbed persons; or situating officers to make them less vulnerable to physical threat). Training, in order to be effective, should be repeated and ongoing, and it should be linked to supervision, through internal guidance and discipline of officers.
Effective reporting and investigation of uses of force are crucial to supervision. All uses of weapons and of deadly force, whether injury results or not, should be reported immediately by officers to their supervisors or other agency officials and investigated. Written policy should set out the use-of-force investigative process step by step, including the roles of supervisors.c. Written policy. Rather than providing detailed provisions that legislatures or agencies should adopt, these Sections state principles to which legislation and agency policies should adhere. Consistent with § 1.06, use-of-force policies should be written, adopted in advance of agency action, and made available to the public, and they should be as detailed as necessary to ensure compliance with these principles. Given how critical the use of force is in policing, it is especially important that there be written policies on the use of force, and that those policies be concise and accessible to officers and to the public. Training on the use of force should be tailored to the specific policies of the agency. Though many agencies make their policies on the use of force public, a minority do not, sometimes out of concern that doing so could provide tactical advantage to criminals who engage with officers. Agencies can accommodate this concern by making the written policies for using force and deadly force available, but keeping supplementary tactical guidance nonpublic. For example, specific tactics used by Special Weapons and Tactics (SWAT) teams may be set out in nonpublic material, while general guidance on when such teams may be used and for what purposes may be set out in policy that is public. See generally § 1.05 (discussing the line between disclosure for transparency and secrecy to protect tactical advantages). Such nonpublic guidance is often provided in the form of internal, agency Standard Operating Procedures.
Reporters’ Notes
At a minimum, all police uses of force 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. Police uses of force directed at suspects during investigation and arrest are seizures, governed by the Fourth Amendment command that government seizures cannot be “unreasonable.” See Graham v. Connor, 490 U.S. 386, 394 (1989). As interpreted by the U.S. Supreme Court, this is an objective, but open-ended standard, one that “allow[s] 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.” 490 U.S. at 396-397. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. at 397. The Court has held that a use of deadly force, in particular, is reasonable if “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.” Tennessee v. Garner, 471 U.S. 1, 3 (1985). More generally, the Court’s Graham decision states that the constitutional reasonableness of a use of force must be evaluated from an objective perspective in light of the totality of the circumstances of the particular case, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, supra at 396. Thus, Graham recognizes that officers must have discretion to exercise force appropriately. More recently, in 2007, the Court further emphasized the fact-specific nature of the constitutional inquiry, emphasizing that the Fourth Amendment does not provide any “magical on/off switch that triggers rigid preconditions” for the use of reasonable force. Scott v. Harris, 550 U.S. 372, 382 (2007).
Refining the constitutional standard for the use of force is challenging, and lower courts have often struggled to apply the standard to new weaponry and diverse situations. Thus, they have sometimes disagreed on questions such as whether and how to incorporate conduct of the officer just prior to the use of force (or “pre-seizure conduct”) into the constitutional analysis. Compare Marion v. City of Corydon, 559 F.3d 700, 705 (7th Cir. 2009) (“Pre-seizure police conduct cannot serve as a basis for liability under the Fourth Amendment; we limit our analysis to force used when a seizure occurs.”), and Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992) (“[P]reseizure conduct is not subject to Fourth Amendment scrutiny.”), with St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995) (“court[s] should examine the actions of the government officials leading up to the seizure”), Bella v. Chamberlain, 24 F.3d 1251, 1256 & n.7 (10th Cir. 1994) (“Obviously, events immediately connected with the actual seizure are taken into account in determining whether the seizure is reasonable.”), and Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993) (holding that an officer violates the Fourth Amendment if he “unreasonably create[s an] encounter” in which an individual would be “unable to react in order to avoid presenting a deadly threat to [the officer]”). See generally Aaron Kimber, Note, Righteous Shooting, Unreasonable Seizure? The Relevance of an Officer’s Pre-Seizure Conduct in an Excessive Force Claim, 13 Wm. & Mary Bill Rts. J. 651 (2004). Most important to this Section, courts differ in characterizing the constitutional significance of using the minimum force reasonably available. Compare Griffith v. Coburn, 473 F.3d 650, 658 (6th Cir. 2007) (requiring officers to effectuate seizures using “the least intrusive means reasonably available”) (quoting United States v. Sanders, 719 F.2d 882, 887 (6th Cir. 1983)), with Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010) (holding the “availability of a less-intrusive alternative will not render conduct unreasonable”), and Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996) (finding that opinions of a police-tactics expert did not support finding that police conduct was unreasonable). Note, however, that those constitutional rulings are concerned in the first instance with whether officers and agencies may be held liable in constitutional-tort suits brought under 42 U.S.C. § 1983 and not with whether particular uses of force, or use-of-force policies or practices, are desirable as a matter of policy. This latter distinction, between a constitutional baseline developed in the context of determining liability and what is desirable as a matter of policy for regulating the use of force ex ante, cannot be stressed strongly enough.
Constitutional rulings and agency policies reflect the view of necessity expressed in this Section. See, e.g., Harris, 550 U.S. at 383 (emphasizing the “actual and imminent threat” to pedestrians and to the officer); Tennessee v. Garner, 471 U.S. 1, 11 (1985) (asking whether force was “necessary to prevent escape”); Lolli v. County of Orange, 351 F.3d 410, 417 (9th Cir. 2003) (stating that “a jury could conclude that little to no force was necessary or justified here.”); U.S. Customs and Border Protection, Use of Force Policy, Guidelines and Procedures Handbook 3 (2014), https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf (stating that agents may use deadly force “only when necessary”); Dept. of Justice, Commentary Regarding the Use of Deadly Force in Non-Custodial Situations (Oct. 17, 1995), https://www.justice.gov/ag/attorney-general-october-17-1995-memorandum-resolution-14-attachment-1 (“[T]he touchstone of the Department’s policy regarding the use of deadly force is necessity. Use of deadly force must be objectively reasonable under all the circumstances known to the officer at the time. The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.”). The Restatement Second of Torts expresses this view of necessity in the context of the use of deadly force. See 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.”).
Though no state expressly requires (as this Section does) that force be limited to the minimum force that is necessary, many agencies require that deadly force be used “only when necessary.” See, e.g., Utah Code Ann § 76-2-404; U.S. Customs and Border Protection, Use of Force Policy, Guidelines and Procedures Handbook 3 (2014), https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf; Los Angeles Police Dept. Manual § 556, Use of Force, http://www.lapdonline.org/lapd_manual/volume_1.htm#556; New York City Police Dept. Patrol Guide § 203-12 Deadly Physical Force (Aug. 2013), http://www.nyc.gov/html/ccrb/downloads/pdf/pg203-12-deadly-physical-force.pdf; Policing – Revised TD1 – Sec. 7.01 – edited not formatted.doc; Philadelphia Police Dept. Directive 10.1, Use of Force – Involving the Discharge of Firearms (Sept. 18, 2015), https://www.phillypolice.com/assets/directives/PPD-Directive-10.1.pdf. See also Samuel Walker, The New World of Police Accountability 51 (2005) (describing minimum-force policies as the “prevailing standard”). Many also require that the minimum force necessary be used in non-deadly situations. See, e.g., DeKalb County Police Dept. Employee Manual 4-6 (2014), http://www.dekalbcountyga.gov/sites/default/files/EmployeeManual.pdf stating in addition to the need to use minimal force in deadly force situations, that “[w]hen non-lethal force is utilized, officers should only use that force which is minimal and reasonable to effect control of a non-compliant subject.”); Metropolitan Police General Order RAR – 901.07 (Aug. 12, 2016), https://go.mpdconline.com/GO/GO_901_07.pdf. Thus, many agencies, including most of the largest agencies and federal agencies, reflect the approach proposed in this Section, mandating that officers use only the minimum necessary force and no more. See Walker, supra, at 51; Brandon L. Garrett & Seth W. Stoughton, A Tactical Fourth Amendment, 102 Va. L. Rev. 211 (2017), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754759 (surveying the 50 largest local law-enforcement agencies’ use-of-force policies). This is also consistent with recommendations in the President’s Task Force on Twenty-First Century Policing and the Police Executive Research Forum’s use-of-force principles. See Final Report of the President’s Task Force on 21st Century Policing 45 (2015), http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf (“Law enforcement officers’ goal should be to avoid use of force if at all possible, even when it is allowed by law and by policy.”); Police Executive Research Forum, Use of Force: Taking Policing to a Higher Standard (Jan. 29, 2016), https://www.themarshallproject.org/documents/2701999-30guidingprinciples (“Agency use-of-force policies should go beyond the legal standard of ‘objective reasonableness’ . . . This . . . should be seen as ‘necessary but not sufficient,’ because it does not provide police with sufficient guidance on use of force.”).
Constitutional rulings and state law also reflect the view of imminence expressed in this Section. See, e.g., 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” and whether the person was “actively resisting”); Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 905 (4th Cir. 2016) (“[A] police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force.”); Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (noting how officers “reacted with measured and ascending responses—verbal warnings, pepper spray, hand- and arm-manipulation techniques, and then the use of a Taser”; and “did not use force until [the plaintiff’s husband] attacked [an officer].”).
Although agencies often incorporate Graham’s reasonableness standard into their written use-of-force policies, they frequently also provide agency rules and procedures for using force that are far more detailed than the constitutional standard, and often more restrictive with respect to when force may be used. See, e.g., Denver Police Dept. Use of Force Policy 107.00 (Mar. 2010) (requiring that use of force not only be reasonable but also be necessary and that officers do not precipitate the use of force by engaging in unreasonable actions); Chicago Police Department General Order, G03-02-02, Force Options (Jan. 1, 2016) (stating that, as a matter of policy, officers “will de-escalate and use Force Mitigation principles whenever possible and appropriate, before resorting to force and to reduce the need for force.”), at http://directives.chicagopolice.org/directives/data/a7a57be2-128ff3f0-ae912-9001-1d970b87782d543f.pdf?hl=true. See also Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or Practice” Suits in Context, 22 St. Louis U. Pub. L. Rev. 3, 33-34 (2003) (describing varying provisions of Department of Justice settlements with municipalities, frequently regarding when officers may use force).
Disagreements exist among policing executives about how and to what degree departmental policy should supplement the constitutional “reasonableness” standard. In advocating for changes to agency policies concerning the use of force, the Police Executive Research Forum (PERF) expressly encouraged law-enforcement agencies to adopt “a higher standard than the legal requirements of Graham v. Connor.” Use of Force: Taking Policing to a Higher Standard, supra. On the other hand, some organizations have expressed real concern about departing from federal constitutional standards. Most prominently, in response to a PERF report, the Fraternal Order of Police and the International Association of Chiefs of Police (IACP) released a statement rejecting any “calls to require law enforcement agencies to unilaterally, and haphazardly, establish use-of-force guidelines that exceed the ‘objectively reasonable’ standard set forth by the U.S. Supreme Court” and arguing that any reforms be “carefully researched and evidence-based.” IACP Statement on Use of Force (Feb. 7, 2016), http://lawofficer.com/2016/02/iacp-statement-on-use-of-force/. The subsequent National Consensus Policy on Use of Force released by the IACP in January 2017 does not merely restate the constitutional reasonableness baseline, however, it also includes important guidance and statements concerning de-escalation, verbal warnings, warning shots, ongoing training, and other subjects discussed in these Principles. See International Association of Chiefs of Police, National Consensus Policy on Use of Force, supra.
These Principles adopt the view of those organizations and individuals who believe that agency use-of-force policies should be more specific and informative than the general constitutional “reasonableness” standard. Constitutional litigation typically focuses on a case-by-case analysis of an individual officer’s actions, rather than the presence or the quality of municipal policy or practice regarding use of force. Moreover, constitutional cases often avoid reaching determinations regarding the use of force through application of various immunity or justiciability doctrines. See Pearson v. Callahan, 555 U.S. 223 (2009) (holding that courts may address qualified-immunity defenses without addressing the merits of whether officers violated constitutional rights); City of Los Angeles v. Heller, 475 U.S. 796 (1986) (holding that an individual violation must be found first before policy or practice can be relevant); City of Los Angeles v. Lyons, 461 U.S. 95, 105-106 (1983) (limiting standard to enjoin police policy in the context of use of force).
The constitutional standard does not speak to how uses of force should be investigated, tracked, or subjected to internal discipline. Nor does the constitutional standard speak to specific types of weapons or tactical situations that officers may face, ranging from mass demonstrations, to emotionally disturbed persons, to juveniles. Agencies cannot expect a coherent body of policy or even guidance on those subjects from the courts; they must themselves define clear and effective standards. See Lorie Fridell, Steve James & Michael Berkow, Taking the Straw Man to the Ground: Arguments in Support of the Linear Use-of-Force Continuum,Police Chief, Dec. 2011, at 78 (arguing that use-of-force continuum policies better inform officers than “the vague term ‘reasonableness’”); Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761 (2012) (arguing that constitutional standards articulated by courts are inadequate by themselves to guide appropriate police conduct); see also Seth W. Stoughton, Policing Facts, 88 Tul. L. Rev. 847, 864-869 (2014). Modern agencies adopt policies in order to provide detailed guidance to officers. Simply instructing officers to use their discretion to act reasonably is insufficient for this purpose. See, e.g., Samuel Walker, The Police in America225 (1999) (describing use-of-force policy and training). Indeed, courts may themselves give some weight to those policies. Ludwig v. Anderson,54 F.3d 465, 472 (8th Cir. 1995) (“Although these ‘police department guidelines do not create a constitutional right,’ they are relevant to the analysis of constitutionally excessive force.”)
In addition, these Principles reflect the view that police officials require more detailed policy and training on the use of force in order to supervise officers effectively. The U.S. Supreme Court has itself recognized that law-enforcement policies, training, and supervision are critical to ensuring that the Fourth Amendment is observed: “Police departments and prosecutors have an obligation to instill this understanding in officers, and to discipline those found to have violated the Constitution.” Malley v. Briggs, 475 U.S. 335, 345 n.9 (1986); see also International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 5 (describing the need for annual training on an agency’s use of force policy and “regular and periodic training” on techniques such as de-escalation and use of less-lethal force).