In the past several years I have heard many different legal “standards” being tossed about regarding how much force an officer can use when effecting an arrest, preventing escape, or overcoming the resistance of a subject. Some of the standards I have heard include:
1.) Minimal Force
2.) Necessary Force
3.) Reasonable Force
In all three examples, the word “Force” is the noun and the word preceding it is an adjective that describes the noun. Sorry for the short grammar lesson, but it will be important later on in the article. Another trainer once said, “The law is comprised of words, and those words have definitions.”
Minimal Force
In part one, we will examine the first two of the three terms above. Not to worry though, there will be a part two to discuss “reasonable force.” As a glimpse into the future, I advocate for the term “reasonable force” (or more specifically “objectively reasonable force”) and stay away from the others as much as possible.
If officers only worked in the most ideal situations and under perfect conditions with an abundance of time and resources to deliberate their force option choice, an officer might be able to use only the minimal force needed to diffuse a situation. It is well understood by practitioners, and even most academics, that this perfect world does not exist. This statement is especially true during an encounter with a resisting and/or threatening subject.
Minimal force is a utopian standard that — in anything other than a perfect world – would be impossible to attain. The term in of itself implies a very specific level (quantum) of force. It is the exact minimum level that could have been used in that situation. How difficult would it be to get a quorum on the exact minimal amount of force in any given situation? In tense, uncertain and rapidly evolving situations it would require the officer to make several assessments and calculations during the force application that flies in the face of human performance limitations.
One could argue that the minimum amount of force that was required in any situation is no force. This is because an officer in any given situation could choose to simply walk away without using any force at all. Some may believe the “walk away with no force” to be a good thing (see my previous article California city to eliminate all police use of force — dated April 1, 2011... but please, be mindful of the publication date before you read it!).
It is a slippery slope to even implement this thinking using a graduated approach. Recently in Brooks v. Seattle, the 9th Circuit Court of Appeals ruled on a case where an officer used an electronic weapon in drive-stun mode. Some “experts” have opined that the officers should have just let Brooks go since the severity of the crimes at the moment were minimal (although arguably minimal, there were at least two bookable offenses committed by Brooks). They advocate for a “who cares?” approach... just “walk away with no force.”
“Walk away with no force” in every case is obviously a standard under which we cannot and should not operate. If the officers in Brooks were to walk away from this it would set a bad precedent. Today we walk away from those that do not want to sign a citation, tomorrow we walk away from what else?
Necessary Force
Depending on your viewpoint, the term “necessary force” can take on two very different meanings. One side views the word “necessary” in this context as a two-part inquiry that begins with a question to determine if there was a legitimate law enforcement objective in the force response, such as effecting a detention or arrest. If there is a legitimate law enforcement objective, is some level of force necessary to achieve the detention or other objective? If the answer is “yes” to both parts of this inquiry, the force would be deemed “necessary.”
Proponents of this viewpoint use this question to probe only the first part of the analysis. They still have to answer the larger question. If the force is deemed “necessary,” was the amount, degree or nature (quantum) of the force “reasonable?”
The two questions do not always have the same answer. The answer to the first part may be “yes” there was a legitimate law enforcement objective and some level of force was necessary to accomplish it. The second answer may be “no” because the amount, degree or nature of the force was excessive.
The other side of the argument looks at the standard definition of the word “necessary.” A quick check of Merriam Webster Online Dictionary shows that the word necessary (used as an adjective) has several meanings and synonyms. Included in this list are:
1.) inescapable, and,
2.) absolutely needed
A few of the listed synonyms include, compulsory, mandatory, non-elective, obligatory, and required.
Based on this definition, they ask a simple question, “How do we prove that an officer’s force response is truly necessary?” Their point is actually quite sound. Consider this situation:
An officer is being threatened by a subject. The subject has a large knife and is aggressively charging the officer at a rapid pace. There are no physical barriers or obstacles in the path of the subject and the officer cannot retreat. Before the subject is able to get close enough to plunge the knife into the officer, the officer shoots and stops the subject. How is an officer supposed to know (not have “probable cause to believe” but actually know) that:
• The suspect would have continued the actions assaulting or killing the officer, or
• The suspect might have stopped and surrendered just short of stabbing the officer, now rendering the officer’s actions not “necessary” as defined?
Only an officer that would be willing to wait to find out what the subject’s actual intentions were would be able to answer this question — not a solution that I would accept. As crazy as this argument appears to any sane person, this “situation” comes from an actual case and the argument was made by the attorney representing the subject that was shot. Would you want your fate determined by a jury that was confused by this argument based on a false premise?
Another situation might be an officer that perceives a replica firearm as an actual firearm and, based on the totality of the circumstances known to the officer at the time, reasonably shoots the subject. Although the actions may be objectively reasonable based on the totality of circumstances, how does one prove that it is “necessary” (as defined in Merriam Webster) to shoot a person with a replica (non-functioning) firearm?
Stay tuned for part two, in which we will continue our exploration of these terms.
