The U.S. Supreme Court has defined “excessive force” as any force beyond that which is necessary to effect an arrest.

In a line of cases beginning in the mid-1980s, the Supreme Court ruled that all claims of excessive force occurring during an arrest or investigatory stop—deadly or otherwise—are governed by the Fourth Amendment’s prohibition against unreasonable seizures.

Under prevailing judicial precedent, all uses of force must be “objectively reasonable” based on the totality of the circumstances viewed through the lens of the officer in the field.

This requires a fact-intensive inquiry that is not easily reduced to categorical rules, but some general trends can be discerned from the case law.

For instance, the courts have been deferential to officers in the field who are required to make split-second decisions in dangerous situations.

Also, officers need not use the least intrusive means to effectuate a seizure so long as their actions are reasonable.

In an effort to provide teeth to federal constitutional restraints, Congress has enacted three federal statutes that accord various remedies for police use of excessive force.

First is the federal criminal statute, 18 U.S.C. Section 242, which prohibits officers from willfully depriving another of a constitutional right while acting under color of law.

Enacted shortly after the Civil War, many have argued that Section 242’s specific intent mens rea requirement is too high a threshold to provide an adequate deterrence to excessive force.

Moreover, the federal circuit courts are split on how to apply this test, with some requiring a strict form of intent and others permitting a reckless disregard jury instruction.

Second is the federal civil rights statute, 42 U.S.C. Section 1983, which provides a civil cause of action for deprivations of one’s constitutional rights.

While generally viewed as successful in providing monetary damages to those injured by officers in the field, the doctrine of qualified immunity has frequently shielded officers from liability when the law was not “clearly established” at the time.

Third is the more recently enacted “pattern or practice” statute, 42 U.S.C. Section 14141, which authorizes the Attorney General to sue local municipalities whose police forces have engaged in a pattern of excessive force under the Fourth Amendment.

Reforms: Various reform bills have been introduced in the 114th Congress to provide additional restraints on police use of force, including the Excessive Use of Force Prevention Act of 2015 (H.R. 2052), which would criminalize the use of chokeholds, and the Police Accountability Act of 2015 (H.R. 1102), which would create a new federal crime for certain homicides committed by law enforcement officers. Additionally, several bills would place requirements on states to report use of force statistics to the federal government.

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Do you have a right to flee the police? Does the police have the right to use deadly force to stop you from fleeing from police?

Under the Fourth Amendment of the U.S. Constitution, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others. Conversely, a person enjoys an Eighth Amendment right to be free of cruel and unusual punishment and a Fourth Amend. right to be free of illegal search and seizure. An officer shooting a fleeing person in the back who does NOT pose a significant threat of death or serious physical injury to the officer or others, constitute de facto 4th and 8th Amendment violations of the U.S. Constitution.

Tennessee v. Garner, 471 U.S. 1 (1985)

A Tennessee statute provides that, if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest.” Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner’s son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being “reasonably sure” the suspect was unarmed and thinking that he was 17 or 18 years old, and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son’s constitutional rights. The District Court held that the statute and the officer’s actions were constitutional. The Court of Appeals reversed.

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.

[2]

(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.

(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.

(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect — young, slight, and unarmed — posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.

710 F.2d 240, affirmed and remanded.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. O’CONNOR, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post p. 22.