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As time goes on, the availability of technological advances in the law enforcement community seems to be endless. This is no less true in the development of tools that are useful in the apprehension of suspects and criminals. Naturally, when a law enforcement tool is developed and has been successfully tested in laboratories and out in the field, the immediate reaction by police officers, trainers and administrators is to advocate its use in their agencies. However, for reasons ranging from financial restraints to lack of community support, police agencies fail to adopt the use of some of the most successful law enforcement tools.
The question becomes whether the agency and/or its officers can be held liable for failing to purchase or carry the latest and greatest gadget in circumstances that in hindsight could have been better resolved through the use of that particular piece of equipment. The short answer is no.
Take, for example, the use of Tasers. Whether you like them or not, Taser programs have reduced injuries to officers and suspects compared with traditional pain compliance tools such as fists, tackles, baton strikes and impact weapons. Indeed, some officers who aren’t equipped with Tasers but support their use make the argument that had the department supplied them with the tool, they wouldn’t have had the need to go hands-on and tackle the suspect, which often results in significant injuries, such as broken bones, to that individual. In some cases, officers fear that by not having that particular tool made available to them, they can be held liable.
That fear of liability has been challenged by the U.S. Supreme Court and the lower courts. An officer’s use of force in the course of an arrest is analyzed under the Fourth Amendment’s “objective reasonableness” standard. The analysis requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he’s actively resisting arrest or attempting to evade arrest by flight. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Despite what some departmental policies require, the Fourth Amendment doesn’t require the use of the least, or even a less, forceful or intrusive alternative to making an arrest. So long as the use of force is reasonable, it is permissible under the Fourth Amendment. Indeed, the federal circuit courts agree.
The Sixth Circuit states, “the Fourth Amendment does not require officers to use the best technique available as long as their method is reasonable under the circumstances.” The Seventh Circuit stresses, “[w]e do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of force is reasonable under Tennessee v. Garner and Graham v. Connor.” The Eighth Circuit advocates, “the Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within the range of conduct which is objectively ‘reasonable’ under the Fourth Amendment.”
The Ninth Circuit asserts, “[r]equiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. … Officers thus need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct we identify as reasonable.” And finally, the First Circuit emphasizes, “in close cases, a jury does not automatically get to second guess these life-and-death decisions, even though plaintiff has an expert and a plausible claim that the situation could have been handled differently.”
As illustrated above, the federal courts are unwilling to dictate through the interpretation of the Constitution how law enforcement should distribute their limited resources. Were it to the contrary, the courts would find themselves on a slippery slope.
For example, an inexperienced officer who has not yet been certified to carry a Taser might find himself faced with a situation requiring him to use pepper spray in extracting a motorist from a vehicle. One could argue that had the officer waited for a backup officer, he might have been able to avoid the need to use pepper spray. However, “[n]o constitutional basis exists for requiring two or more officers to make routine arrests, even if deploying more officers might result in less force actually being used.”
Finally, for those agencies that have language in their use-of-force policies requiring officers to use the least intrusive amount of force to effect the arrest, does that language impede the defense of an officer’s particular use of force from a constitutional standpoint? The answer: It shouldn’t.
In many civil rights lawsuits alleging the use of force in violation of the Fourth Amendment, attorneys representing the officer have successfully moved to bar the admissibility of any such policy. This is because any violation of department policy regarding the use of force typically has no bearing on the constitutionality of the use of force. As the Supreme Court stated in Virginia v. Moore, “[it is] obvious that the Fourth Amendment’s meaning d[oes] not change with local law enforcement practices—even practices set by rule.” As such, in many cases, policies requiring that police officers use only the minimum amount of force necessary or use the least intrusive amount of force (both of which arguably could be different from the reasonable use of force) are often not even shown to a jury.
1. See www.taser.com/research/statistics/Pages/FieldUseandStatistics.aspx.
2. Graham v. Connor, 490 U.S. 386, 388 (1989)
3. Id. At 396-97 (emphasis added).
4. Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996).
5. Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994).
6. Schultz v. Long, 44 F.3d 643, 649 (8th Cir. 1995).
7. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (emphasis added).
8. Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994).
9. Buckley v. Haddock, No. 07-10988, 2008 WL 4140297 *4 (11th Cir., Sept. 9, 2008) (unpublished opinion) (citation omitted). The court cautioned that officers acting alone are not given carte blanche to use any and all force necessary to complete and arrest without assistance. Remember, the force must be reasonable under the circumstances.
10. See Virginia v. Moore, 533 U.S. 164, 128 S.Ct. 1598, 1605 (2008).
11. Id. See also Carr v. District of Columbia, 587 F.3d 401, 410 fn7 (C.A.D.C. 2009)
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.