Right now, the topic of “police brutality” is buzzing through the media airwaves. Do a search on Google for “police brutality” and you’ll almost certainly find an article on the subject written within the last 24 hours. Bloggers, politicians, social activist and many more are engaged in hot debate over the justice involved in the use of force by officers in blue. In light of the national attention to the subject, we decided to gather some legal documentation and perspective to help you engage in the debate.
When Is Police Force Allowed?
Whenever we hear about a case of police brutality, many of us probably wonder: when are the police allowed to use force? It’s a passing thought for most, and few of us take the time to perform the research and find the answer. We all, of course, have our opinions about when and how much force the police should be allowed to use. But if we really want to make a change or judge police officers according to the same standard, we all need to be asking the same question: what does the law actually say about it?
We’ll dive into the legal jargon about the use of police force in just a moment. Before we do so, however, let’s review some of the distinctions and qualifications concerning the nature of police force.
[Police] Force is divided into two categories: lethal and less than lethal. Here are some examples of each kind, as well as differences between the two.
Lethal (Distinction: Designed to kill)
- Firearm with actual bullets
- Knife (sometimes carried by police to defend against being unarmed. Think: 2 people struggling over a firearm in a holster
- Police vehicle used to ram a person (outside of his/her car)
Less than lethal (Distinction: Not designed to kill but has the potential)
- Electronic Incapacitation (Taser)
- Extended Range Impact weapons [propelled by firearm or other means] (e.g. bean bags, rubber bullets, pepper balls, high pressure water)
- Chemical (OC spray, tear gas grenades)
- Impact (baton, flashlight)
- Personal weapons (e.g. hands, feet, teeth, forehead, elbows, etc.)
Clearly, police force includes a number of different weapons and tactics. Nevertheless, each weapon or tactic ultimately always falls under one of these two categories: lethal or less than lethal.
When Are the Police Allowed to Use Force?
With this division of police ‘force’ in mind, let’s investigate what North Carolina law has to say about what is allowed under each type of category. The legal language defining when police are authorized to execute lethal or less than lethal force is defined in General Statute § 15A-401(d)(2) states, in pertinent part: (CALEA 1.3.2)
Here’s what that statute has to say about lethal force [Note: Verbal warning required if feasible]:
A law enforcement officer is justified in using deadly physical force upon another person only when it appears to be reasonably necessary thereby:
- To defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force
- To effect an arrest or to prevent the escape from custody of a person who he reasonably believes is attempting to escape by means of a deadly weapon, or who by his conduct or any other means indicates that he presents an imminent threat of death or serious physical injury to others unless apprehended without delay
To the effect of the second bullet point, then, a police officer can, for example, discharge a round(s) at a person who he believes presents an imminent threat of death or serious physical injury to others unless apprehended without delay.
But: A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead…however…where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. –Justice Byron White, Tennessee vs. Garner
An officer’s use of less than lethal force is not codified if it is based on the reasonableness of the response to the particular situation. This is an excerpt from the NC State Police manual:
Where lethal force is not authorized, a member should assess the situation in order to determine which less than lethal technique or weapon will best de-escalate the incident to bring it under control in a safe manner.
A member is authorized to use department-approved less than lethal force techniques and issued equipment for resolution of incidents as follows:
- To protect the member or another from physical harm
- To restrain or subdue a resistant individual
- To bring an unlawful situation safely and effectively under control
- To effect an arrest or prevent escape from custody of a person whom the member reasonably believes has committed a criminal offense unless the member knows the arrest is not authorized.
Obviously, there are a number of factors to be weighed in judging whether either kind of police force was justified in each particular case. It’s also important to recognize that in many cases, police officers have only a few moments, even split-seconds to make these evaluations and act accordingly. Police officers, then, are trained to make decisions according reason, not opinions or passions. This doesn’t always happen, of course, but what is key to understanding our police officers is that they are trained to value reason above all and interact with their surroundings and circumstances based on reasonable judgments.
The entry below notes the integral relationship between circumstance and the appropriate amount of police force: The amount of force, which may be used in attaining a lawful compliance, will be determined by the surrounding circumstances, including but not limited to:
- The nature of the offense
- The behavior of the subject against whom force is to be used
- Actions by third parties who may be present
- The feasibility or availability of alternative actions
Circumstance Determines Whether an Officer Should Use Force
Whether an officer is allowed to use force depends heavily upon an officer’s surroundings. Of the first three conditions above, a person or persons behavior seem to be either implicitly or explicitly the fundamental factor influencing an officer’s response to the situation. Because “behavior” is unpredictable, police, for example, can (by law) use compliance holds to gain control over a person and safely handcuff them, even when that individual is not resisting.
Officers are often trained to use compliance holds in every street arrest because an officer is most vulnerable to concealed firearms, edged weapons and personal weapons when he/she moves in to handcuff. This is because a police officer has to use two hands to perform the arrest, one of which is occupied by the handcuffs, leaving an officer more openly exposed to an attack.
Judging whether or not to use force is always a difficult decision for an officer. And the reality is that police officers are human beings. They are prone to error. They will make a mistake at some point in their career. In any case, respect and cooperation are sound approaches to any encounter with an officer.
Excessive Force with Tasers
Typically, police officers employ the technique of continuum of force. Continuum of force is the natural progression of force in responding to resistance ranging from verbal warnings to the use of deadly force. However, after the widespread adoption of Tasers, police officers were given a non-lethal option in order to avoid the use of excessive force.
Police officers use Tasers as a non-lethal tool to use to subdue suspects. Tasers shoot metal prongs attached to wires leading back to the Taser, into an individual. Upon triggering the Taser, high voltage electricity pulses through the wires and into the suspect, rendering the suspect incapable of moving and incapacitating them. Tasers are a non-lethal alternative to using other weapons available to officers. However, Tasers are capable of lethal consequences.
Upon recent widespread use of Tasers, there have been over 300 cases of individuals dying and countless injuries sustained. The repeated use also increases the risk of severe injury. There have been thousands of cases of police officers using Tasers in situations where the suspect has already been subdued or is not resisting, thus producing claims of excessive force by police officers. A groundbreaking case regarding Tasers is Bryan v. MacPherson. In that case The police pulled over a suspect for a seat belt violation. The police officer Tasered the suspect, causing him to be seriously injured. The court ruled that the police officer’s actions constituted excessive force. This case laid the groundwork for many of the future cases involving Tasers and excessive force.
How to Bring a Civil Claim for the Use of Excessive Force
If you believe that you have been the victim of unreasonable force, you can bring a civil claim for the use of excessive force against the police. This claim falls under 42 U.S.C. § 1983 where an individual can bring a claim against:
“[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and [the] laws.”
Therefore, in order to satisfy a § 1983 claim, the following elements must be proven:
a) A “person”;
b) Acting under “color of law”;
c) Deprived another person of a constitutional right.
Under the first element, it must be proved that an individual person, typically a police officer or another governmental official, acted against the victim. Under the second element, this person must have been enforcing a law or acting in their official capacity. Finally, under the third element, the person’s actions must have deprived or violated a known constitutional right of the individual.
One potential problem for a § 1983 claim is the qualified immunity exception for public or governmental officials. The general rule is that government officials or employees are immune from lawsuits against them when they act in their official capacity. This is necessary because if police officers had to constantly worry about being liable for their actions in going about their job, it would prevent their ability to protect and to serve. However, qualified immunity is not available where a government official acts with “deliberate indifference” to an individual’s constitutional rights. This can sometimes be described as an act or actions that are so “shocking to the conscience” as to be manifestly and grossly unjust.
Because of the qualified immunity exception, the success of most § 1983 claims turns on how extreme the actions of the police or other governmental officials were. In general, the more severe their actions, the better the chance of success on a § 1983 claim is. However, this generally seems to prevent bringing a claim against the police or a governmental official who may have stepped over the line of excessive force, but not in a manner that is “deliberately indifferent” or “shocks the conscience.”
If you believe that you have been the victim of excessive force by police, do not hesitate to Contact Us at Minick Law for a free consultation about your potential §1983 claim.
This compilation of legal material hopefully gives you some deeper understanding of the factors that require consideration in every case of police brutality. Our review is certainly not comprehensive, nor our exposition conclusive. We only hope that in gathering some of these legal facts we’ve helped you gain a clearer understanding for the debate.