Evaluating Police Uses of Force

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Seth W. Stoughton. Evaluating Police Uses of Force

Evaluating Police Uses of Force

Contents

List of Figures and Tables

Foreword

Introduction

Part I. Standards for Evaluating Police Uses of Force

1. The Constitutional Law Standard

When Does the Constitutional Standard Apply?

Civil “Excessive Force” Litigation under 42 U.S.C. § 1983 and Bivens

“Pattern and Practice” Litigation under 42 U.S.C. § 14141

Criminal Prosecutions under 18 U.S.C. §§ 241, 242, and 245

What Does the Constitutional Standard Regulate?

How Does the Constitutional Standard Apply?

Deference and the “Reasonable Officer on the Scene”

Governmental Interest

Using the Graham Factors to Identify Governmental Interests

The Severity of the Crime

Immediate Threat

Active Resistance and Attempts to Evade Arrest by Flight

Additional Factors

Community Caretaking

Involuntary Commitment

Proportionality

The Proportionality of Deadly Force

Graham Factors

The Severity of the Crime

Immediate Threats, Active Resistance, and Attempts to Evade Arrest by Flight

The Nature of the Threat

Severity of the Threat

Subject Characteristics

Officer Characteristics

Encounter Characteristics

Environmental Factors

Additional Factors

Conclusion

2. The State Law Standard

When Does the State Law Standard Apply?

Criminal Law

Civil (Tort) Law

Regulatory Law

What Does the State Law Standard Regulate?

Criminal Law

Civil (Tort) Law

Regulatory Law

How Does the State Law Standard Apply?

The Relationship Between the Constitutional Standard and the State Standard

Police-Specific Authorizations and Justification Defenses

The Relevance of Assertive and Defensive Force: Applicability of Other State Laws

State Law Justifications for Less-Lethal Force

To Make an Arrest

To Prevent an Arrestee from Escaping

To Defend the Officer or Others

Other Limits on the Degree of Force

State Law Justifications for Threats of Force

State Law Justifications for Deadly Force

The “Fleeing Felon” Approach

“Partially Restrictive” Approaches

The “Garner Rule” Approach

Additional Restrictions

Reasonably Necessary/Reasonable Belief

Necessary

State Law Limitations on Police-Specific Justification Defenses

State Law “Mistake of Fact” Defenses

General Exceptions and Defenses

Conclusion

3. The Administrative Standard

When Does the Administrative Standard Apply?

What Does the Administrative Standard Regulate?

How Does the Administrative Standard Apply?

The Relationship between the Administrative Standard and the Constitutional and State Law Standards

The Resource-Allocation Approach

Use-of-Force Models

The Incremental Model

Situational Tactical Options Models

Situational Behavior Models

A Summary of the Models

Use-of-Force Policy Components

Mission Statement

Policy Statement

Definitions

The Legality of Force

Duty to Report

Duty to Intervene

Use-of-Force Model

Conflict Avoidance

De-escalation

Tactics

Authorized Tools, Techniques, and Equipment

Use-of-Force Investigations

Conclusion

4. The Community Expectations Standard

When Does the Community Expectations Standard Apply?

What Does the Community Expectations Standard Regulate?

Procedural Injustice

The Failure to Protect

How Does the Community Expectations Standard Apply?

Critical Perspectives

Evaluating Force Based on the Underlying Governmental Interest

Conflating the Justifications for the Encounter and the Use of Force

Comparing the Justifications for the Encounter and the Use of Force

Differences in Assertive and Defensive Force

Evaluating the Necessity of Force

Evaluating Officer Motivation

Favorable Perspectives

Evaluating Force as the Product of the Subject’s Resistance

Evaluating Force as the Product of a Highly Dangerous Environment

Conclusion

Part II. Police Tactics and Force Options

5. Tactical Considerations1

A Conceptual Framework for Analyzing Tactics and “Officer-Created Jeopardy”

Tactical Concepts

Time

The OODA Loop

System 1/System 2 Thinking

The Tactics of “Creating” Time

Tactical Awareness

Distance

Cover

Concealment

Using Time to Minimize the Potential Need for Force

Conflict Avoidance

De-escalation

Verbal Instructions

Verbal Commands

Drawing a Weapon

Additional Resources

Applying Tactical Concepts

Arrests

Crisis Intervention Response

Active-Shooter Response

Conclusion

6. Force Options. Tools, Techniques, and Weaponry

Tools

Restraint Devices: Handcuffs, Flex Cuffs, Leg Restraints, Four-Point Restraints, and “Hog-Tying”

Noise-Flash Diversionary Devices: Flashbangs and Blast Balls

Techniques

Empty-Hand Techniques 1: “Soft Hands”

Empty-Hand Techniques 2: “Hard Hands”

Physically Holding a Subject Down

“Chokeholds”: Respiratory Chokes and Vascular Neck Restraints

Weaponry

Drawing and Presenting a Weapon

Batons and Other Impact Weapons

Chemical Munitions and Sprays

Kinetic Energy Weapon

Kinetic Energy/Chemical Munition Weapons

Electronic Control Weapons

Firearms

Special Weaponry

Police Canines

Police Vehicles

Conclusion

Conclusion

Taking the “Totality of the Circumstances” Seriously

From Resistance to Threat

The Need for Better Information

Summing Up

Acknowledgments

Appendix of State Laws

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

Notes. Introduction

Chapter 1. The Constitutional Law Standard

Chapter 2. The State Law Standard

Chapter 3. The Administrative Standard

Chapter 4. The Community Expectations Standard

Chapter 5. Tactical Considerations

Chapter 6. Force Options

Conclusion

Index

About the Authors

Отрывок из книги

Seth W. Stoughton, Jeffrey J. Noble, andGeoffrey P. Alpert

NEW YORK UNIVERSITY PRESS

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Ability means the individual’s physical capacity to cause an identifiable type of harm. Ability in this context requires an explicit reference: the individual must be capable of taking an action that would cause some particular and identified type of physical harm. It is not sufficient to state that an individual has the ability to cause some undefined harm—identifying the presence of a governmental interest that permits officers to use force requires specifying the type or types of harm that the individual has the capacity to cause. A handcuffed individual, for example, lacks the ability to punch someone, although they may retain the ability to kick or ram someone with their shoulder. Similarly, an individual with a knife in their hand may have the ability to stab someone, while an individual without a knife does not. Articulating ability, then, requires officers both to identify what the individual was capable of at the relevant time and, for each type of harm identified, to explain how the officer came to that conclusion. In short, officers must not only identify that the subject was able to inflict some type of harm, they must identify that harm and explain why they concluded that the subject was capable of inflicting it. Relevant observations include, but are not limited to:

Opportunity refers to the environment and situation, specifically with regard to the individual’s proximity to the potential target or targets. Even if an individual is physically capable of throwing a punch, they may not have any opportunity to cause harm by doing so because they are too far away for the punch to connect. Similarly, an individual with a knife who is a block away from the officer has the capability, but not the opportunity, to use the knife against the officer at the time; therefore, the knife should not be considered a threat to the officer in that moment (although it certainly may become a threat as the distance between the subject and the officer decreases). There is no set distance at which an individual does or does not have the opportunity to physically injure an officer; that determination depends on the relevant harms and the facts and circumstances of each case. Articulating opportunity requires officers to explain how the individual could cause an identifiable harm to a specific target at the relevant time. Relevant observations include, but are not limited to:

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