When is force excessive? Insightful Guidance from the U.S. Supreme Court.

Too often, it seems, news footage shows American law enforcement officers using force to effect an arrest or defend themselves. The sight of a sworn peace officer, who has taken an oath to serve and protect, using violence naturally appears inconsistent and inherently repulsive to any objective viewer who likely knows little of the realities of law enforcement. Naive commentary labeling the force used as excessive often accompanies such footage. (1) But, when is force excessive? While some critics may be quick to characterize force as excessive, the law reflects the realities that officers face in making use-of-force decisions. The U.S. Supreme Court recently revisited this issue and provided a significant ruling.

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In December 2004, the Court announced its decision in Brosseau v. Haugen. (2) In Brosseau, the Court further examined how to evaluate law enforcement uses of force to determine whether such actions were excessive. This decision refines the current trilogy of U.S. Supreme Court decisions that define when law enforcement officers are civilly liable for uses of force. Tennessee v. Garner, (3) Graham v. Connor, (4) and Saucier v. Katz (5) comprise those cases. Garner and Graham set out the general approach to defining constitutional constraints on the use of force by law enforcement, stating that force used by officers constitutes a seizure under the Fourth Amendment (6) and is objectively evaluated for reasonableness. (7)

The Katz decision profoundly impacted the way courts analyze civil rights lawsuits brought pursuant to Title 42, Section 1983 of the U.S. Code (and its federal counterpart Bivens v. Six Unknown Agents (8)). In Katz, the Court established a two-step approach to these lawsuits. It held that courts first view the alleged facts (9) and establish whether a constitutional violation could exist pursuant to the principles enunciated in Garner and Graham. If no possible constitutional violation occurred, then the court would summarily dismiss the lawsuit. However, if the court found a constitutional violation, then it would determine if the officer involved should be entitled to qualified immunity. (10) The evaluation of whether the officer can receive qualified immunity constitutes a separate and distinct analysis from the initial determination of whether the force used was constitutional.

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In Katz, the Court specifically held that law enforcement officers may apply force that eventually is determined to be unconstitutional yet remain protected by qualified immunity. In the words of the Court, "[q]ualified immunity operates to protect officers from the sometimes hazy border between excessive and acceptable force." (11) The Court plainly stated that while uses of force by police occur that are clearly excessive or clearly appropriate, a gray area remains in between. The Court went on to say that when an officer's use of force falls within this gray area, deference must be paid to the officer and qualified immunity granted.

After the Katz decision, there were numerous cases evaluating whether police uses of force fell in the "hazy border" between the clearly excessive and the clearly constitutional as defined in that decision. Brosseau was the U.S. Supreme Court's vehicle to address this issue.

The Facts

Like virtually all case law related to law enforcement use of force, Brosseau was a civil rights lawsuit brought by Kenneth Haugen against Officer Rochelle Brosseau of the Puyallup, Washington, Police Department. A former crime partner had complained that Haugen had stolen tools from his shop. Brosseau later learned that a felony no-bail warrant existed for Haugen's arrest on drug and other nonviolent offenses. The day after receiving the associate's complaint and verifying the arrest warrant for Haugen, Brosseau responded to a report that Haugen and others were fighting in the yard of his mother's home. When Brosseau arrived, Haugen ran out of his mother's yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers and a canine arrived to assist in locating and arresting Haugen. The two associates with whom Haugen had been fighting and Haugen's girlfriend and her 3-year-old daughter were at the scene. Haugen's SUV was parked in the driveway facing his girlfriend's car (occupied by her and her child) with about 4 feet between the two vehicles. The two associates were in a pickup truck parked on the street in front of the driveway about 20 to 30 feet away.

After being spotted by a neighbor who alerted the officers, Haugen appeared and ran into the driveway. With Brosseau in pursuit, he jumped into the driver's seat of his SUV and closed and locked the door. When she caught up, Brosseau pointed her gun at Haugen and ordered him to get out of the vehicle. Haugen ignored her command and attempted to find his keys to start the SUV and escape. Brosseau repeated her commands and struck the driver's side window several times with her handgun. This had no effect on Haugen. On the third or fourth strike, the window shattered. Brosseau then tried to take the keys away from Haugen and struck him on the head with her gun. Haugen, still undeterred, started the SUV. After it started but before it moved, Brosseau jumped back and fired one shot through the rear driver's side window at a forward angle, hitting Haugen in the back. She later testified that she shot Haugen because she was "fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area." (12) In justifying her use of force, Officer Brosseau also cited the fact that Haugen had a no-bail drug warrant and that she had probable cause to believe that he had committed a burglary. She also stated that she originally thought he was attempting to access a weapon when he ran to his vehicle.

Even though he was wounded, Haugen accelerated aggressively and drove through the small, tight space between the other vehicles. He swerved across a neighbor's lawn and proceeded down the street. After going about one-half of a block, Haugen realized that he had been shot and stopped. He survived the shooting and subsequently pleaded guilty to a state felony charge of eluding. (13) In pleading to this offense, he admitted that he drove his vehicle in a manner indicating "a wanton or willful disregard for the lives ... of others." (14)

The Court's Evaluation

It should be noted that the Court's decision in Brosseau was an appeal by Officer Brosseau to the decision of the Ninth Circuit Court of Appeals to deny her summary judgment (15) in the lawsuit brought by Kenneth Haugen. That is to say, the lower court found that the facts indicated that Officer Brosseau's use of force might have violated Haugen's constitutional rights. Applying the second inquiry per Katz, the lower court then found that Officer Brosseau was not entitled to qualified immunity and, therefore, the matter should proceed to trial. Officer Brosseau's appeal to the U.S. Supreme Court requested the Court to find that her use of force was constitutional or, in the alternative, that if her actions were unconstitutional, she nonetheless was entitled to qualified immunity.

In evaluating Officer Brosseau's shooting of Haugen, the Court--pursuant to the two-step approach it prescribed in Katz--first touched on the issue of whether the force used was constitutional, indicating that it would bypass this and focus solely on the qualified immunity question. "[W]e express no view as to the correctness of the Court of Appeals' decision on the constitutional question itself. We believe that, however that question is decided, the [Ninth Circuit] Court of Appeals was wrong on the issue of qualified immunity ... [w]e exercise our summary reversal procedure here simply to correct a clear misapprehension of the qualified immunity standard." (16) Essentially, the Court assumed for the purposes of this decision that Officer Brosseau's conduct was unconstitutional and presented this case as illustration that officers still may be entitled to qualified immunity even though they used force in an unconstitutional manner.

The Court reiterated that "qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." (17) The Court then stressed that the critical issue in determining if qualified immunity is warranted is whether the officer had fair notice that the conduct in issue was unlawful. This is determined by the state of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer is entitled to qualified immunity. In defining whether certain conduct is clearly established, the Court referenced one of its often-cited qualified immunity decisions--"that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." (18)

The ultimate issue then is whether the use of force by Officer Brosseau, if it was unconstitutional, was clearly established at the time. The Court noted that both sides in the lawsuit offered numerous examples in case law that supported their respective positions. The Court found that the disparate bodies of case law "undoubtedly show that this area is one in which the result depends very much on the facts of each case. None of them squarely governs the case here; they do suggest that Brosseau's actions fell in the 'hazy border between excessive and acceptable force.' The cases by no means clearly establish that Brosseau's conduct violated the Fourth Amendment." (19)

With this in mind, how familiar do police officers need to be with the current state of the law? As Judge Gould wrote in his excellent dissenting opinion in the Ninth Circuit Brosseau decision, "[J]udges, unlike police officers, have the luxury of studying the constitutional issues in the calm of their chambers, with the benefit of lawyers' briefing, and after hearing oral arguments ... judges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor's precision." (20)

The Practical Impact

Brosseau provides one example of a use of force by a police officer that, while constitutionally questionable, was certainly in the "sometimes hazy border between excessive and acceptable force," and, therefore, the officer was entitled to qualified immunity. There have been numerous lawsuits evaluating law enforcement officers' uses of force under the Katz "hazy border" qualified immunity mandate. As noted by the Court in Brosseau, the evaluation of force used by officers always is very fact specific. Predictably, because use-of-force cases are so fact specific, court decisions can vary, finding that police uses of force are inside (21) or outside (22) Katz's "hazy border." It is this inherent uniqueness to every use-of-force incident that makes it difficult to characterize particular police conduct as being clearly established. If not clearly established, then--as in Brosseau--the officer's conduct is in Katz's "hazy border," requiring the court to grant qualified immunity to the officer.

Conclusion

In a broader sense, the U.S. Supreme Court in Brosseau reminds society that it must pay great deference to law enforcement officers in use-of-force situations and that the law clearly reflects this deference. Qualified immunity always has been available to police officers in use-of-force civil rights lawsuits. By conspicuously removing the qualified immunity question from the constitutional Graham-Garner inquiry in Katz and underscoring this as the Court did in Brosseau, the Court has taken the previous standard for evaluating police use of force to a new level. It has implemented what might be called a "Graham plus" standard. If the constitutional question is close--if it is in that "hazy border"--then courts must defer to the law enforcement officer and grant her qualified immunity. Simply put, only force that is clearly and plainly something no reasonable police officer could ever do violates the Constitution.

That said, law enforcement managers today often are in the unenviable situation of dealing with uses of force by their officers that, while constitutional, are politically unpalatable. As one court noted, "[t]o say that police officers have acted within the bounds that the Constitution sets is not necessarily to say that they have acted wisely." (23) The challenge then becomes dealing with unwise, but legal, uses of force. This management issue is more common today because of the ubiquitous video camera, exacerbated by segments of video footage receiving significant public exposure and being shown out of context.

The answer is for law enforcement managers to deal with the issue in a forthright and instructive manner. Managers and trainers must refrain from imposing overly restrictive policies that are unreasonably more constraining than what the law allows (24) or from overreacting to uses of force by their officers. (25)

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Although allegations of police brutality are quick to get public exposure, the risks and realities American law enforcement officers face are not. On average, a law enforcement officer in the United States is feloniously slain every 5.4 days (26) with even greater numbers dying from accidents and still more becoming victims of aggravated assault. (27) While some critics ignore these realities, their comments must be kept in context.

Like the Constitution, training and policies must reflect the realities of the law enforcement profession and support its mission of serving and protecting the public. While there always will be the vocal few who are critical of any use of force by a law enforcement officer, the large, silent public relies on the peace officer for its safety. Violence by American law enforcement officers, particularly deadly force, is rarely the answer. But, when it is the answer, it is the only answer. As George Orwell remarked, "People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf...."

Endnotes

(1) The concept of excessive force in the context of this article is synonymous with whether force creates civil liability for the officer using that force. Courts, to include the U.S. Supreme Court in its law enforcement use-of-force decisions, employ these concepts interchangeably.

(2) 125 S.Ct. 596 (2004). It was an 8 to 1 decision, with Justice Stevens dissenting.

(3) 471 U.S. 1 (1985).

(4) 490 U.S. 396 (1989).

(5) 533 U.S. 194 (2001).

(6) The Fourth Amendment to the Constitution of the United States.

(7) For an elaboration on Graham, Garner, and constitutional law related to police use of force, see generally the work of John C. Hall, particularly In Defense of Self and Others ... Issues, Facts & Fallacies: The Realities of Law Enforcement's Use of Deadly Force, coauthored with Urey W. Patrick, (Durham, NC: Carolina Academic Press, 2004); Mr. Hall's extensive writings in the FBI Law Enforcement Bulletin; and Thomas D. Petrowski, "Use-of-Force Policies and Training: A Reasoned Approach (Parts One and Two)," FBI Law Enforcement Bulletin, October and November 2002.

(8) 102 S.Ct. 2727 (1982).

(9) Contested facts are to be viewed in a light most favorable to the party asserting the injury. Katz at 201.

(10) Qualified immunity is available to defendants in a [section]1983 and Bivens suit if they can show the actions in question did not violate any clearly established law of which they should have been aware at the time. The standard for qualified immunity is "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, at 818 (1982). See also note 18.

(11) Katz at 206, internal quotations omitted, recited in Brosseau at 600. When the Court originally used "hazy border between excessive and acceptable force" in this context, it was quoting Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997) at 1419.

(12) Haugen v. Brosseau, 339 F.3d 857 (2003) (the original Ninth Circuit opinion, which was reversed by the U.S. Supreme Court) at 865.

(13) Wash. Rev. Code [section]46.61.024 (1994).

(14) Id.

(15) Summary judgment is brought pursuant to Federal Rule of Civil Procedure 56. It allows a court to dismiss all, or part of, a lawsuit before trial. In granting summary judgment, a court indicates that as a matter of law, no issues exist that should go to a jury.

(16) Brosseau at 598.

(17) Katz at 206.

(18) Anderson v. Creighton, 483 U.S. 635 at 640 (1987). The Court also stated in Anderson that "it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials--like other officials who act in ways they reasonably believe to be lawful--should not be held personally liable" (internal quotations and citations omitted).

(19) Brosseau at 600 (internal quotations and citations omitted).

(20) Haugen v. Brosseau, 339 F.3d 857 (2003) (the original Ninth Circuit opinion, which was reversed by the U.S. Supreme Court) at 886. That said, American law enforcement professionals have an obligation to maintain a consistent academic element to their training. As the Greek historian and martial philosopher Thucydides wrote in his record of the Peloponnesian Wars, "That [state] which separates its scholars from its warriors will have its thinking done by cowards, and its fighting done by fools."

(21) The following are pre-Brosseau decisions that found uses of force by law enforcement officers to be in the "hazy border" between the clearly excessive and the clearly acceptable, therefore entitling the officers to qualified immunity and summary judgment (the lawsuits were dismissed before trial): Carswell v. Borough of Homestead, 381 F.3d 235 (3rd Cir. 2004) (unarmed subject was fatally shot when, while attempting to escape, he turned and charged police officer); Garrett v. Athens-Clarke County, Georgia, 378 F.3d 1274 (11th Cir. 2004) (unarmed subject died of positional asphyxia while hog-tied after extended violent noncompliant arrest); Rogers v. Gooding, 84 Fed. Appx. 473 (6th Cir. ((Tenn.)) 2003) (in removing noncompliant protester from a courthouse, officer struck nonviolent protester in the neck, took him down to the ground, and dragged him out of the building by his legs); Mace v. City of Palestine, 333 F.3d 621 (5th Cir. 2003) (police shot, then pepper sprayed, subject after he threatened them with a sword); Willingham v. Loughan, 261 F.3d 1178 (11th Cir. 2001) (subject simultaneously shot by two police officers after she threw a knife at them); Kerman v. City of New York, 261 F.3d 229 (2nd Cir., 2001) (responding to a 911 call regarding a subject with mental health issues, police handcuffed and immobilized the noncompliant subject. Officers were qualifiedly immune for initial seizure, but not for subsequent treatment of subject. See note 22). For an example of a post-Brosseau decision-granting summary judgement, see Blanford v. Sacramento County, ____ F.3d ____, (9th Cir. 2005) (police officers shoot noncompliant subject armed with a sword attempting to enter a residence).

(22) The following are pre-Brosseau decisions that refer to the "hazy border" between clearly excessive and clearly acceptable uses of force but found law enforcement officers not entitled to summary judgment (these were not judgments in favor of the plaintiff; the lawsuits were merely allowed to proceed to trial): Kerman v. City of New York, 261 F.3d 229 (2nd Cir. 2001) (after taking subject into custody, officers were alleged to have tightened subject's handcuffs to cause him pain, verbally abused him, and placed him unnecessarily in a restraint bag in a painful position); Solomon v. Auburn Hills Police Department, 389 F.3d 167 (6th Cir. 2004) (compliant subject, who was at a movie theater with her children, was departing theater at request of officers who then violently took her to the ground and handcuffed her, breaking subject's arm); Burden v. Carroll, 108 Fed. Appx. 291 (6th Cir. ((Mich.)) 2004) (after officer screamed profanities and expressed national origin animus toward subject, subject replied in kind, resulting in officer striking subject); Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002) (while transporting arrested subject in patrol car, officer, after heated mutual exchange of profanities, stopped patrol car and pepper sprayed handcuffed subject in back seat); Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002) (while interacting with a subject who was emotionally disturbed and had been pepper sprayed and apparently presented no theat, officer shot subject three times); Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) (during the course of a compliant arrest, officer shoved handcuffed subject's face into her car and slammed her head onto the car trunk). For an example of a post-Brosseau decision denying summary judgement, see Sample v. Bailey, ____ F.3d ____. (6th Cir. 2005) (nonthreatening, unarmed, compliant burglar shot during arrest).

(23) Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003) at 641.

(24) Most American law enforcement departments have numerous policies addressing many police functions that are more restrictive than applicable law, including use-of-force policies. For example, many departments forbid the use of certain techniques (e.g., carotid restraint or certain restraining procedures) or specific weapons (e.g., saps, blackjacks, knuckles, and stun guns). Other departments limit the use of deadly force to prevent the escape of dangerous subjects, even though clearly constitutionally appropriate under Garner. Other departments have policies that mandate elaborate use-of-force continua that serve only to instill hesitation when officers face serious threats. See Thomas D. Petrowski, "Use-of-Force Policies and Training: A Reasoned Approach (Parts One and Two)," FBI Law Enforcement Bulletin, October and November 2002.

(25) A recent example of this was the Inglewood Police Department's handling of Officer Jeremy Morse who was fired, and his partner disciplined, for punching a teenager and slamming him against a patrol car. A few seconds of the lengthy incident were videoed and received significant national exposure. Morse and his partner, Bijan Darvish, were found not guilty of all criminal charges and in a civil suit against the department awarded $1.6 million and offered their jobs back. See generally http://www.cnn.com.

(26) According to U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted, 2003, 688 law enforcement officers were feloniously slain during the 10-year period of 1994 through 2003.

(27) See generally U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted.

By THOMAS D. PETROWSKI, J.D.