Police use of nondeadly force to arrest.

"[O]ur Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it"

- U.S. Supreme Court, Graham v. Connor, 490 U.S. 386, 396 (1989)

The use of force is an integral part of a law enforcement officer's job, particularly when arresting criminal suspects. Because arrests and investigative detentions are "seizures" of persons, they are governed by the Fourth Amendment to the U.S. Constitution.(1) Not only must they be justified at their inception - i.e., officers must have probable cause to make a valid arrest(2) - the manner in which they are carried out, including the level of force that may be used, must be "reasonable."(3) Deadly force may be constitutionally reasonable in defense of life or when necessary to arrest dangerous suspects.(4) This article discusses the appropriate level of force officers may use when deadly force is not a reasonable option.

THE FOURTH AMENDMENT STANDARD

The Fourth Amendment standard of "reasonableness" is not conducive to "precise definition or mechanical application,"(5) but "requires careful attention to the facts and circumstances of each particular case," as viewed "...from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight...." Moreover, allowances must be made for the fact that 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."(6)

Among the "totality of circumstances" that may govern the reasonableness of using a particular level of force, the Supreme Court has emphasized 1) the severity of the crime; 2) whether the suspect poses an immediate threat to the safety of the officers or others; and 3) whether the suspect actively is resisting arrest or attempting to evade arrest by flight.(7)

It is important to consider how these factors have been weighed by the courts in recent cases assessing the application of nondeadly force by law enforcement officers while making arrests.

SEVERITY OF THE CRIME

The severity of a suspect's crime is clearly relevant in judging whether a suspect poses "a threat of serious physical harm to the officer or to others,"(8) thus justifying the use of deadly force when necessary to make an arrest. It likewise can be relevant to an officer's decision to use nondeadly force when deadly force is not an appropriate option. For example, the manner in which officers approach a suspect to make the arrest is often affected by a suspect's known propensities for violence or resistance.

In Dean v. City of Worcester,(9) officers had a warrant to arrest a man with a history of violence who was known to threaten violent resistance during arrest attempts. Officers encountered a man matching the suspect's description at a location where reliable information had indicated he would be. The officers immediately seized him, threw him to the ground, and handcuffed him. However, the arrestee, Dean, was the wrong man. In a lawsuit against the officers and the police department, Dean alleged that he had offered no resistance and that the officers had used excessive force against him. Upholding a district court's judgment in favor of the officers, the federal appellate court noted that in view of the real suspect's known propensities for violence and his threats to shoot any police officer who tried to arrest him, the officers were justified in anticipating that resistance. Because the officers reasonably believed that Dean was the suspect, they were "entitled to do what the law would have allowed them to do if [Dean] had in fact been [the suspect]."(10)

THREATS TO SAFETY

It is not disputed that law enforcement officers are permitted to protect themselves and others from threats to their safety. What is often disputed is an officer's assessment of a threat and the level of force selected to counter it. As a general principle, the level of force used should be tailored to the nature of the threat that prompted its use. The Fourth Amendment does not require that officers choose the least intrusive level of force, only a reasonable one.(11)

Armed or Unarmed Suspects

What is reasonable in one set of circumstances may not be reasonable in another. Courts and even so-called police experts differ as to the level of force an officer would be justified in using in the face of a threat to safety. For example, an unarmed suspect does not present the same clear and significant threat to an officer's safety as an armed and noncompliant suspect. Yet, an unarmed suspect still can seriously injure or kill an officer. An unarmed suspect may succeed - through superior strength, skill, or luck - in temporarily disabling an officer sufficiently to gain control of the officer's firearm. In fact, approximately 10 percent of officers killed by criminal assailants each year are slain with their own firearms.(12) Perhaps that statistic reflects a reality often overlooked - that officers who engage in physical struggles with aggressive assailants are often at a disadvantage because the playing field is seldom equal.

Criminal suspects, even unarmed ones, who ignore commands and aggressively threaten law enforcement officers are exhibiting dangerous tendencies. Moreover, when officers attempt to subdue such suspects, they must do so while protecting their firearms from the suspect's grasp. The suspect does not have to subdue the officer; he only needs a chance to gain access to the officer's sidearm.

The element of chance is present in all violent encounters, and while its significance can be somewhat reduced through such factors as weapons retention training and tactical skill, it cannot be eliminated entirely. Simply stated, the "best" person does not always win. In the words of the ancient proverb: "The race is not to the swift, nor the battle to the strong...but time and chance happeneth to them all."(13)

Aggressive Noncompliance 

In Tom v. Voida(14) an officer saw a young man fall from his bicycle and remain on the ground with his arms and legs in the air "like a bug." The officer did not suspect him of any crime but stopped to see if medical assistance was needed. Without responding to the officer's inquiries, the young man got up and began rapidly walking away with the bicycle. When the officer asked him to "wait a minute," the young man looked over his shoulder at the officer, threw down the bike, and ran away.

Suspecting that the bicycle was stolen, the officer pursued the suspect on foot for several blocks until the suspect slipped on ice and fell down. The officer's efforts to handcuff the suspect led to a violent struggle in which the suspect repeatedly hit the officer's head against the concrete pavement. When the suspect broke free and continued to flee, the officer resumed pursuit. The officer overtook the suspect once more, initiating a second struggle in which the suspect again struck the officer repeatedly. The officer managed to pull away from the suspect and draw her sidearm even though her left arm had been disabled during the Struggle. When the suspect ignored commands to stop and continued to act aggressively, the officer shot and killed him.

A lawsuit against the officer and the police department alleged that the officer had used excessive force and had no legal justification to stop the suspect in the first place. The federal district judge granted summary judgment in favor of the officer and the department. The judgment was affirmed later by the appellate court.

The court concluded that from the moment the individual ignored the officer's inquiries and began running away, the officer had a reasonable suspicion that the suspect was engaged in criminal activity. Moreover, the suspect's continued flight from the officer "ripened [the officer's] reasonable suspicion into probable cause..." and justified the suspect's arrest for stealing the bicycle and resisting a law enforcement officer.(15) Accordingly, the court considered that the officer was reasonable in trying to restrain the suspect with handcuffs and in using deadly force to protect herself against the suspect.

Articulating Law Enforcement Perspective

The general principle that officers confronted with threats to their safety are not required to select the least intrusive alternative to counter the threat does not suggest that officers always are justified in using deadly force. For example, in Hopkins v. Andaya,(16) an officer shot and killed an unarmed suspect who had managed to grab the officer's baton and begin striking the officer. The officer fell to the ground, drew his sidearm, and ordered the suspect to stop. When the suspect continued his assault, the officer fired six times. The suspect went down after being struck by several of the shots but got back to his feet without the baton and advanced on the officer again. The officer retreated, reloaded his revolver, and radioed for help. When the suspect continued to ignore commands to stop, the officer fired four more times. The suspect later died from nine gunshot wounds: two to the head, five to the torso, and one in each hand.

In a subsequent lawsuit against the officer, the federal appellate court reversed a lower court's summary judgment in favor of the officer. The appellate court raised two "troubling factual issues" that rendered summary judgment inappropriate. The first factor was that the medical evidence did not appear to support the officer's statements regarding the nature or severity of the suspect's attack. In addition, the officer's initial statement presented "a milder version" of the altercation than was described in later statements. Another factor that troubled the court was the "second" shooting, after the officer had first shot the suspect and then retreated. The court opined:

...we cannot say as a matter of law that [the officer] acted reasonably when he then shot the unarmed [suspect] four more times. At the time of the second shooting, it was far from clear that [the officer] reasonably feared for his life.(17)

The court noted that the suspect already had been wounded several times and suggested that the officer could have evaded the suspect or attempted to subdue him with "his fists, his feet, his baton, or the butt of his gun."(18) The court recognized that these facts might well be resolved in favor of the officer at trial but concluded that the questions raised made summary judgment inappropriate.

The court's decision in Andaya appears to be inconsistent in some respects with the general premise that officers are not required to choose the least intrusive alternative, only a reasonable one. On the other hand, the officer's choice must, after all, be reasonable, and courts and juries must have sufficient information upon which to base a judgment.

For example, in Andaya, the court was clearly troubled by the notion that an unarmed person, already suffering from gunshot wounds, was still viewed as a threat by the officer. Only an informed court is likely to recognize that gunshot wounds may not stop or even discourage - certain determined assailants, and striking a suspect with a gun butt may not be a safe option. If, as the Supreme Court has declared, the issue must be viewed from the perspective of the reasonable law enforcement officer, that perspective must be presented clearly if law enforcement interests are to prevail.

RESISTING ARREST

Passive NonCompliance

By far, the greater number of cases involving police use of nondeadly force are those in which it is alleged that the suspect resisted or attempted to evade arrest. This is undoubtedly due to the fact that the suspects are not posing immediate threats to the officers or others necessarily but are simply being noncompliant.

An example is Forrester v. City of San Diego,(19) where police officers used "pain compliance" techniques to arrest several anti-abortion demonstrators who had ignored police commands to disperse. Before using any force, the officers warned the demonstrators that they would be subject to pain compliance measures if they did not move. Demonstrators were told that such measures would hurt, but they could reduce the pain by standing up.

When the demonstrators did not comply, the officers used pain compliance techniques to remove them. In their lawsuit, the arrestees complained of injuries to their hands and arms, including bruises, pinched nerves, and one broken wrist. They contended that dragging and carrying them would have been more reasonable.

A jury returned a verdict in favor of the city and the police officers, and that verdict was upheld by the federal appellate court for three reasons. First, the court observed that "the nature and quality of the intrusion upon the arrestees' personal security" was not excessive; rather, "...the force consisted only of physical pressure administered on the demonstrators' limbs in increasing degrees, resulting in pain."(20)

Second, the city had a legitimate interest in quickly dispersing and removing lawbreakers with the least amount of injury to the police and others, even though many of the crimes were misdemeanors. Third, the court noted that the decision not to drag and carry was based upon the officer's desire to maximize police control over the anticipated large crowds and to avoid back injuries that often are sustained by ofricers in those situations.

Finally, the court stated: "Police officers...are not required to use the least intrusive degree of force possible....Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue."(21)

Active Arrest Resistance

In Forrester, the arrestees were engaged in passive noncompliance. Obviously, an officer may require higher levels of force to overcome a suspect engaged in active arrest resistance. In Mayard v. Hopwood(22) Elsie Mayard was cited by police for selling liquor without a license. Although the police did not intend to make an arrest at that time, they did so when she became agitated and began screaming and shouting at them for removing her inventory as evidence. The officers took her by the arms to escort her to the police car. When she began to struggle with them, they placed her in handcuffs. When she refused to get into the car, the officers picked her up and placed her face down on the rear seat. When she began kicking they placed a hobble restraint on her legs. She later sued the police officers, alleging excessive force.

The U.S. district court granted summary judgment to the officers, and Mayard appealed. The federal appellate court upheld the summary judgment as it related to the force used to make the arrest, noting that it was objectively reasonable "particularly...in light of [her] resistance."(23)

Using Force Against a Controlled Subject

The Mayard case raised a second issue that the court found more troublesome. Mayard contended that while being transported to the police station, she was slapped in the face, punched in the chest, and subjected to a racial epithet. The court viewed such allegations, if substantiated, as constituting an objectively unreasonable use of force against an arrestee already under control and remanded to the district court for further consideration.

A similar issue was raised in Frazell v. Flanigan,(24) where the arrestee alleged that officers used excessive force against him after he already had been subdued. Upholding a jury verdict against the officers, the appellate court observed that "...it is one thing to use force in subduing a potentially dangerous or violent suspect and quite another to proceed to gratuitously beat him...."(25) These cases point out that when the circumstances justifying a particular level of force no longer exist, that level of force must be discontinued.

However, once control has been established over an arrestee, officers still may use reasonable force to maintain that control and to protect themselves from danger. They may also use reasonable force to protect themselves from an arrestee's actions that are demeaning or distasteful.

For example, in Prymer v. Odgen,(26) officers were escorting an arrestee to the police car when they heard him making a "gurgling" noise in his throat as if he were going to spit on the officers. One of the officers struck the arrestee in the head with a straight-arm technique "to redirect [his] head." The arrestee later sued the police, alleging, inter alia, that the officer had used excessive force by striking him in the head. The U.S. district court disagreed, and the ap-pellate court concurred. The court reasoned, "...it was reasonable for an officer not to want to be spat upon...we cannot say that [the officer's] reaction to [the arrestee's] attempt to spit on him was objectively unreasonable in the context of this case."(27)

CONCLUSION

The Supreme Court has held that the level of force law enforcement officers may use to effect arrests or investigative detentions of suspects must be "reasonable" to comport with the Fourth Amendment. As the Court has stated and these cases illustrate, "reasonableness" is not conducive to "precise definition or mechanical application." Law enforcement policy makers and instructors must avoid the natural temptation to reduce these critical issues to overly simple and rigid rules of application. Apparent gains in clarity most likely will be offset by loss of flexibility and practicality in the face of the realities of law enforcement.

As an alternate approach, consideration should be given to carefully crafting guidelines that provide officers with a range of options within which to make decisions regarding the appropriate level of force in particular situations. In addition, sustained training sessions that include practical application of the principles to realistic scenarios will increase officer skill and confidence in making the tough decisions. Policy and training should strike an appropriate balance between the rights of citizens to be free from "unreasonable" seizures and the interests of society in maintaining effective law enforcement while protecting the officers who must perform that duty.

Endnotes

1 Graham v. Connor, 490 U.S. 386 (1989).

2 Beck v. Ohio, 379 U.S. 89 (1964).

3 See, e.g, Tennessee v. Garner, 471 U.S. 1, 8 (1985): "...it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out."

4 Id.

5 Bell v. Wolfish, 441 U.S. 520 (1979).

6 Graham, 490 U.S. at 396-397.

7 Id. at 396.

8 Tennessee v. Garner, supra, at 8.

9 924 F.2d 364 (1st Cir. 1991).

10 Id. at 368.

11 See, e.g., Illinois v. Lafayette, 462 U.S. 640 (1983); Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691 (1st Cir. 1994); Plakas v. Drinski, 19 F.3d 1143 (7th Cir.) cert. denied, 115 S. Ct. 81 (1994); Scott v. Henrich, 39 F. 3d 912 (9th Cir. 1994); Schulz v. Long, 44 F. 3d 643 (8th Cir. 1995); Wilson v. Meeks, 52 F. 3d 1547 (10th Cir. 1995); Menuel v. Atlanta, 25 F. 3d 990 (11th Cir. 1994).

12 Uniform Crime Report, Law Enforcement Officers Killed and Assaulted, Federal Bureau of Investigation, 1994.

13 Ecclesiastes 9:11.

14 963 F. 2d 952 (7th Cir. 1992).

15 Id. at 959.

16 958 F. 3d 881 (9th Cir. 1992).

17 Id. at 887.

18 Id.

19 25 F. 3d 804 (9th Cir. 1994), cert. denied, 116 S.Ct. 1104 (1995).

20 Id. at 807.

21 Id. at 807-808.

22 Mayard v. Hopwood, 105 F. 3d 1226 (8th Cir. 1997).

23 Id. at 1228.

24 Frazell v. Flanagan, 102 F. 3d 877 (7th Cir. 1996).

25 Id. at 885.

26 29 F. 3d 1208 (7th Cir. 1994).

27 Id. at 1216.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Special Agent John C. Hall is a legal instructor at the FBI Academy.