Are the Police Allowed to Use Force?

Criminal Defense Attorney Lance Williams

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.

What Is Police Force?police allowed to use 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)

  1. Firearm with actual bullets
  2. Knife (sometimes carried by police to defend against being unarmed. Think: 2 people struggling over a firearm in a holster
  3. Police vehicle used to ram a person (outside of his/her car)

Less than lethal (Distinction: Not designed to kill but has the potential)

  1. Electronic Incapacitation (Taser)
  2. Extended Range Impact weapons [propelled by firearm or other means] (e.g. bean bags, rubber bullets, pepper balls, high pressure water)
  3. Chemical (OC spray, tear gas grenades)
  4. Impact (baton, flashlight)
  5. 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.

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.

 

For more information on this subject visit these blog entries in our archive:

 

Contact A Minick Law Attorney Today If You Have Questions About Excessive Force or Police Brutality.

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