Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 19

Sociologist Egon Bittner famously identified the “unique competency of the police” as their ability to intercede to address “something that ought not to be happening and about which someone had better do something now.”20 Police, in other words, are uniquely trained and equipped to deal with situations in which the use of force may become necessary. And yet, it is inescapably true that not every aspect of policing will justify the use of force.

To understand this point, consider first the nature of the police function itself. That is, what is it that police do in a free, democratic society? Political scientist James Q. Wilson has offered perhaps the broadest and most useful taxonomy of the police function, which he describes as consisting of three types of tasks: officers engage in law enforcement, provide services, and maintain order.21 Unfortunately, those tasks are not always clearly distinct; certain situations may require officers to engage in two or even all three of those tasks simultaneously, as with an officer who makes an arrest (law enforcement) to break up a house party (order maintenance) that has been the subject of a neighbor’s complaint (service provision).

As that example suggests, it can be difficult to identify the police function with any precision precisely because the nature of the job requires officers to play a host of different roles. Officers detect, investigate, and apprehend law breakers, but decades of empirical study have established quite convincingly that only a relatively small percentage of most officers’ time is dedicated to criminal enforcement.22 Police officers are also called upon to perform a variety of services that do not in themselves constitute enforcement, even when there is a potential for enforcement activity. Officers provide at least rudimentary forms of marital, substance-abuse, and mental-health counselling; first aid; animal rescue; and auto-mechanical assistance and repair. They direct traffic, escort funeral processions, and manage crowd control during parades, sports events, rallies, and peaceful protests. They drive people from place to place, perform welfare checks, and convey death notifications to next of kin. They educate the public not just about criminal law and highway regulations, but also about personal safety, home security, and child-abduction prevention. They serve as community organizers, supporting neighborhood-watch groups and youth athletic leagues. They look into suspicious activity, suspicious persons, suspicious vehicles, suspicious packages, even suspicious smells23 and an array of everyday items that have, at some point, struck someone as suspicious enough to call the police (including, according to news reports, a cucumber,24 a burrito,25 and a quarter26). And this only begins to scratch the surface of the nonenforcement services that police provide.27

Given this wide range of duties that officers perform, when can they legitimately use force? The answer to this question is of tremendous practical significance, but the question has rarely received an explicit answer. Clearly, officers cannot use force in every aspect of their jobs. Indeed, any number of commentators, including the Supreme Court, have lamented the use of force in situations that do not justify it. As far back as the 1968 case, Terry v. Ohio, the Court disapprovingly observed that force and intimidation were sometimes used to “maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.”28 The Supreme Court’s lamentation is well-founded; officers may be within their rights to maintain a certain image, but clearly the need—real or imagined—to maintain “the power image of the beat officer” cannot justify the use of force.

That, however, is an easy case: establishing police dominance is not an independent, legally cognizable aspect of the police function. But even when officers are engaged in activities that are universally agreed to fall within the police function, they do not get carte blanche to use force. Officers are expected to engage in crime prevention, for example, and they indisputably have legal authority to do so. An officer may organize events for that purpose, such as educating community groups and neighborhood associations about how to reduce opportunistic crime. An officer may counsel someone at length about the perils of engaging in criminal activity, using a combination of promises and warnings. An officer may attempt to build a long-term relationship with an at-risk youth, encouraging them to join a sports team that the officer coaches. It would be inappropriate and deeply problematic, however, for officers to physically beat someone to deter them from breaking the law at some point in the future.

Similarly, officers have the legal authority to investigate crimes. Further, they clearly have the legal authority to forcibly investigate crimes. An officer with reasonable suspicion to believe that an individual committed a crime may detain that person; in the event that the person attempts to flee, the officer may use force to prevent that flight. An officer with probable cause to believe that an individual committed a crime may arrest that person; if the person physically resists, the officer may use force to effect the arrest. An officer who has arrested someone may interrogate that person. If the person refuses to cooperate with the interrogation, though, officers certainly cannot physically beat them to obtain an incriminating confession. In short, merely identifying that the police have the legal authority to take a particular action does not necessarily establish that the police can use force to realize that action.

Why not? In brief, society restricts the ability of officers to use force because the use of force itself infringes on the subject’s individual interest in liberty, bodily autonomy, and personal safety; on the more generalized governmental interests in preserving legitimacy and public trust; and on the specific governmental interest in protecting the physical safety of its constituents. In other words, the use of force by police infringes on highly valued personal and state interests. Because the use of force is viewed—properly, in our view—as an infringement on individual and governmental interests, and because we do not allow the government to lightly infringe on such interests, the use of force is only permissible when it is specifically justified (as opposed to being generally permitted unless prohibited).

Having established that officers may only use force when it is justified, the question remains: what justifies police uses of force?

Perhaps the most conceptually sound answer to that question comes from law professor Rachel Harmon, who concluded that force can be legitimately used only when there is an “imminent threat” to certain pre-defined governmental interests.29

It is important to note at the outset that these three governmental interests that justify the police in using force are prospective. The use of force is required to achieve one of the identified goals at some point in the future. A use of force cannot be predicated on purely retrospective governmental interest. For example, it would be highly inappropriate for a police officer to use force to retributively punish a criminal suspect for a previously committed crime; the state’s interest in punishing offenders is predicated on a formal adjudication of guilt, either through conviction by a jury or a guilty plea. Only once there is adjudication can the state impose punishment.30 An officer may, however, use force to effect an arrest of a suspect who would otherwise escape; doing so is prospective, not retrospective, because the officer is acting pursuant to the state’s interest in doing something in the future—here, subjecting the subject to a formal prosecution.

However, merely having a prospective interest is not sufficient to justify the use of force. The government has an interest in deterring future crime, for example, but it would be manifestly inappropriate for an officer to beat the individuals they come across as a way of encouraging them to avoid breaking the law in the future.31 Some, but not all, prospective governmental interests can justify the use of force; Harmon has identified, and we endorse, only three.

First, the state has an interest in law enforcement: “facilitating [the government’s] institutions of criminal law.”32 This interest can justify an officer’s actions only after a crime has been committed—or, more accurately, is believed to have been committed—although force is used in such situations to ensure that they can satisfy the state’s interest in law enforcement in the future. Officers cannot effectively investigate suspected crimes without the ability to detain persons whom they reasonably suspect to have committed those crimes, for example, and, in the event of a prosecution, the criminal justice system requires the presence of the individual who is charged with a crime, of witnesses, and of evidence. Through the application of certain legal processes, such as the issuance of an arrest warrant, a subpoena, or a search warrant, the state “expressly commands” individuals to comply by submitting to an investigation, or appearing, or testifying. As Harmon explains, these state commands can be implicit as well; when a state gives officers the authority to make an arrest or conduct a search without a warrant, implied in that authority is a command for the individual to comply. These commands implicate the state’s interest in enforcing the law against those individuals who are believed to have violated it. “Police uses of force,” Harmon writes, “are then justified to ensure that these commands are satisfied, that our criminal justice institutions function after a crime [is believed to have] occurred.”

Second, the state has an interest in order maintenance: force can be justified “when it is necessary to eliminate a significant threat to public safety.” As described above, this interest is prospective; it can justify an officer’s actions only prior to the commission of a crime (or the infliction of harm on an individual) when the use of force is seen as a way of averting that crime (or harm). This interest can overlap to some degree with the government’s interest in law enforcement. Harmon provides the example of officers breaking up a fight between teenagers. At the moment they forcibly separate the combatants, the officers may be acting both in their order-maintenance capacity, by using force to prevent harm to the combatants and bystanders, and in their law-enforcement capacity, by arresting the individuals so they may be charged criminally. It is equally possible, however, for officers to use force to maintain public order even without a criminal predicate. “Thus, a police officer may use force to stop a distraught person from committing suicide or to break up a rowdy crowd that could injure by riot or stampede, even though doing so entails applying force against someone who is not yet violating a criminal statute.”33 In other words, a use of force to prevent an individual’s suicide may be entirely appropriate even though there is no crime on the statute books that would criminally punish the person’s actions. (Although all United States jurisdictions have repealed statutes that criminally punish suicide and attempted suicide, some states continue to treat it as a common law crime.34) It can, in any individual case, be difficult to identify when the state’s interest in order maintenance is fully manifested and when there is a threat that is sufficiently imminent so as to justify an officer’s use of force. “But even though the edges of legitimate police efforts to protect the public are contested and blurry, the [immediate] prevention of crime and the maintenance of public safety remain central to contemporary policing.”35

Third, the state has an interest in officer safety: force may be used to protect officers from physical threats to their safety. Notice, again, that this interest is prospective; it justifies force as a way to avert a physical hazard that would otherwise cause harm to the officer. The individual officer has a personal interest in their own safety, of course, but an officer has no greater interest in their own safety than anyone else does—if the individual interest in safety were the only interest at stake, we could simply apply the law of self-defense in situations in which officers used force to protect themselves.36 The state, however, has a distinct interest in protecting officers. Without officers, the state’s interests in law enforcement and order maintenance would be easily frustrated, leading Harmon to describe the interest in officer safety as “derivative” of the other two interests. “Because human police officers are the instruments by which the state pursues its interests in law and order, threats to those police officers often result in justified defensive force in excess of what would otherwise be required to serve the state’s interests.” It is for that reason that jurisdictions that have retained the common-law duty to retreat, which requires individuals who can safely retreat instead of using self-defense to do so, do not impose that requirement on police officers.37

Although the three factors are distinct, two or even all three may be present in any given case. This is particularly true when an officer has the legal authority to take a particular action or issue a particular order, when a subject attempts to impede that action or refuses to obey that order, and when the impediments or refusals constitute criminal violations. Consider a situation in which officers are authorized to enter a private home to check the welfare of a young child, but the child’s father violently rebuffs their efforts to enter the home. Officers in that situation may well be authorized to use force to check on the young child (order maintenance), to apprehend the father for frustrating the government’s interest in order maintenance by refusing to obey officers’ lawful commands (law enforcement), and to defend officers from the father’s attack (officer safety). Not all frustrations will amount to criminal activity, of course, but it is worth noting that any given situation may implicate more than one governmental interest.

To determine whether there was a legitimate governmental interest in any given case, reviewers should ask the following counterfactual question: if the officers had not used force, would one of the identified governmental interests have been thwarted or frustrated? At this point, the inquiry is somewhat abstract; if a governmental interest would have been thwarted or frustrated, some use of force may have been appropriate.

How, then, should we evaluate whether one of the requisite governmental interests existed, or could reasonably have been thought to exist, in any given situation? The Supreme Court itself has given us some guidance in the form of the Graham factors, but, as we will discuss, that guidance is incomplete.