Here is a primer on police use of force. It is not written as a defense or criticism of recent actions. However, it seems like a good time to shed some light on the subject.
The use of force by police officers is governed by the fourth amendment of the United States constitution. That may seem odd to many who think that this amendment only relates to searches by the police. The amendment states, in part:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
You may ask what this amendment has to do with the use of force by police. In 1974 Memphis, Tennessee police responded to a report of a prowler. During the course of their on-scene investigation they observed a suspect fleeing the scene. The suspect refused to stop when officers ordered him to. Even though he was “reasonably sure” the suspect was unarmed, an officer fired at him and killed the suspect. Obviously, a lawsuit was filed. Eleven years later, in 1985, the US Supreme Court handed down the decision that every cop in the country is now intimately familiar with: Tennessee v. Garner, 471US1.
A previous court case had already stated that if an officer restrains a person’s ability to walk away, that is a seizure under the fourth amendment. Garner extended that theory and states that force used to effect that seizure is also governed by the fourth amendment. As such, the force must be ”reasonable”. As stated in the fourth amendment, “The right to be secure in their persons…against unreasonable…seizures, shall not be violated…”
The word “reasonable” is often batted around by the public and the media when discussing police actions. It is, in fact, a technical legal term that governs much of what cops do, including the use of force. In discussing the actions of the police the legal term “reasonable” does not refer to public opinion. It refers to the legality of police actions. I believe that there is a significant disconnect in communications between police, the media, and the public regarding that word. They cannot understand each other if they are not using the same language. That is for another post.
Let me be clear here - police officers DO NOT need to use the least amount of force necessary to affect an arrest. Officers do not even need to use the same level of force or resistance that they are facing. In fact the opposite is true. Officers are explicitly authorized by a series of court cases to use a level of force that is higher than the force used against them or the resistance that they face. Some people may not like these facts, but it is in fact the law, and the law governs the actions of the police.
Police are allowed to use force in two general circumstances. One is to protect themselves or others. The other is to affect an arrest and restore order. This is where the concept of using a higher level of force is important. When forced to use force, police do so in order to end conflict. Courts have recognized that the use of force by people in general and police in particular can be an ugly, painful, injurious affair. When the police intervene with force, it must be done quickly, decisively, and efficiently in order to end conflict and restore order. I am not saying that – the courts have.
Because an officer’s use of force need only be reasonable, and not the minimum, there is a significant gray area. I will present an example.
An officer stops a vehicle for speeding. The operator shows signs of intoxication and after field sobriety tests the officer informs the subject that he is under arrest and orders him to turn around, place his hands behind his back, and submit to handcuffing. The suspect, who is of a size and stature comparable to the officer, squares his shoulders, faces the officer, and raises his clenched fists. The suspect states “you’re not arresting me without a fight. I’ll kick your butt.” The suspect then takes a small step toward the officer.
Officer A takes out his pepper spray and sprays the suspect. The suspect reacts to the spray and is distracted to the point where the officer can force him to the ground, wrestle his hands behind his back, and handcuff him. Within a half hour the spray wears off and the suspect shows no side effects.
Or
Officer B takes out his steel expandable baton. Officer B strikes the suspect twice in the lower leg and suspect falls to the ground. Officer B wrestles suspect’s hands behind his back and handcuffs him. The suspect is transported to the hospital where an X-ray shows that he has a broken knee with significant ligament damage. The suspect walks with a slight limp for the rest of his life.
Under the law, both of the above uses of force were reasonable and legal. Both officers faced a suspect who physically and verbally showed his intent to resist arrest and assault the officer if the cop tried to arrest him. Officer A chose a lower level of force than Officer B did. Officer B used more force than the suspect did. In fact, the suspect, in raising his fists, was really only threatening to punch the officer. But it would be foolish to suggest that before the officer can use a baton, he must first go toe-to-toe with the suspect, take a few punches, and determine that he is losing before he can resort to using his baton. The courts and the law have recognized this. The officer is authorized to use a level of force higher than that which he faces in order to quickly and efficiently end the conflict and affect an arrest.
It is interesting to note that the threat of force by the suspect was dependent on the officer’s desire to arrest him. The police initiated this situation, after all. One option would have been to simply let the man go. If the officer did that then there would have been no use of force. No injuries. No complaints. But the police can not do that. The law recognizes that the police, in some circumstances, need to seize people, sometimes with force. The law authorizes the police to proactively use force in such situations.
It is true that the police have a monopoly on the proactive use of force. Some may not like this but that is the way our judicial system is set up. While citizens can defend themselves with force in some cases, no one other than the police can proactively use force on others in order to accomplish goals.
This is not something that any police agency has made up – and certainly not the Brattleboro Police. These principles are firmly set in two decades of state and federal Supreme Court cases.
Finally, while each police agency has its own use of force policy, in the eyes of the law and the courts, there is one standard. There is no “Brattleboro way” for police to use force. In the eyes of the law there is no “state police” way to use force. There is no “Burlington Police standard.” It must be reasonable under the fourth amendment.
I recognize that it is going to be very tempting to comment on this post based on recent events. People also may want to contrast my example above to what happened on Putney Road – but please don’t. I know they are different situations so there is no need to convince me. I wrote this so people have some basic factual knowledge about the subject. There is much more to the use of force. Pages more could be written on what the courts use to determine if something is “reasonable” and what officers do to determine what force they’ll use. I’m writing this so it’s not a mystery. Mystery and the unknown lead to fear and there is not need to fear the police.
Note that this essay is a post by a regular ibrattleboro user and not the Brattleboro Police Department.