Police, sheriffs, and correctional officials have daily contact with and custody of individuals who don't always obey the rules and who sometimes require an application of some kind of force, whether for self-defense, defense of others, or compliance.

Consequently, there are a number of court decisions discussing the circumstances under which force can and cannot be used, and the constitutional principles that will apply if your use of force is challenged in court. Some cases will fall under the Fourth Amendment rules on searches and seizures; some will arise under the Fifth Amendment or Fourteenth Amendment due process clauses; and others will be considered under the Eighth Amendment prohibition against cruel and unusual punishment.

Fourth Amendment

Force used to take a person into custody is subject to the search and seizure clause. When you use force while taking an arrestee into custody, the reasonableness of the use of force will be a Fourth Amendment issue. Under Fourth Amendment principles, courts will examine (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to your safety or the safety of other officers or citizens, and (3) whether he or she is actively resisting arrest or attempting to evade arrest by flight. (Graham v. Connor.)

Therefore, when you have to use force in making an arrest, be sure your arrest report fully details the three Graham factors, and shows why the amount and kind of force you used were appropriate. In Graham v. Connor, the Supreme Court cautioned lower courts about the tendency to second-guess officers: "The reasonableness of a particular use of force is to be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments- in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation."

Also, the court held that use-of-force assessments are not to be based on an inquiry into your subjective beliefs about the situation you confronted, but are to be measured objectively, based on conclusions about how a reasonable officer in your position would have reacted. "The question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation," said the court.

It's also important to keep in mind that the issue is not whether force was necessary, but whether it was reasonable. It might turn out in retrospect that force would not have been necessary, but if it reasonably appeared to be the prudent thing to do at the time, the force is not excessive. Therefore, instead of describing your actions in a report by saying "necessary force was used," it would be more appropriate to say, "reasonable force was used."

Deadly force can lawfully be used to save life in self-defense or in defense of others, or to prevent the escape of a dangerous offender who is reasonably believed to have committed or attempted a crime involving the threat of death or serious bodily injury, and if, where feasible, a warning has been given. (Tennessee v. Garner.)[PAGEBREAK]

These Fourth Amendment principles will continue to apply to arrestees at least until they are secured at the station or jail, and in most jurisdictions will also apply until arraignment or first court appearance of the prisoner. (Fontana v. Haskin.)

Fifth and Fourteenth Amendment

Use of force against pretrial detainees, between the date of arraignment and the date of conviction in criminal court, will be evaluated under the relevant due process clause of either the Fifth Amendment or Fourteenth Amendment. "It is clear," said the court in Graham v. Connor, "that the Due Process Clause protects pretrial detainees from the use of excessive force that amounts to punishment." Fifth Amendment due process applies to federal officers; Fourteenth Amendment due process applies to state and local officers. (Lee v. City of Los Angeles.)

The test is exactly the same under both- namely, whether the use of force is so egregious that it "shocks the conscience." (County of Sacramento v. Lewis.) The court said in Lewis that the kind of test under the Eighth Amendment is whether the use of force against a prisoner amounted to the "unnecessary and wanton infliction of pain, totally without penalogical justification." (Hope v. Pelzer.) Again, institutional security concerns loom large in justifying force to control sentenced prisoners, and second-guessing is discouraged: "The infliction of pain in the course of a prison security measure does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable." (Whitley v. Albers)

Justifying Reasonableness

As you can see, in all three settings- arrest, pretrial detention, and incarceration of sentenced prisoners-the key to avoiding a finding of excessive force is being able to justify the kind and amount of force used. The accuracy and completeness of the force report are extremely important, not only for purposes of internal investigations, but also for criminal and civil liability and public relations purposes.

All of the prisoner's words and actions, action that is likely to rise to the level of "conscience shocking" would be "conduct intended to harm in some way unjustifiable by any government interest."

This means that where force is reasonably used in furtherance of the strong governmental interest in institutional security, it should not be considered excessive. In Bell v. Wolfish, the court ruled that custodial officers must be given substantial leeway because of the serious considerations involved in maintaining discipline and order in the jail: "In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."

Eighth Amendment

Only after a defendant has been convicted of a crime does the Eighth Amendment prohibition against cruel and unusual punishment apply. "After conviction, the Eighth Amendment serves as the primary source of substantive protection in cases where the deliberate use of force is challenged as excessive and unjustified." (Graham v. Connor.) the surrounding circumstances, and your reasons for employing the particular force you used, as well as conscientiousness in obtaining any necessary follow-up treatment, should be fully detailed and documented.

Where possible, video and photographs should be used to record events and injuries (it will not be helpful if your own language is abusive or unprofessional). Witnesses should be promptly and thoroughly interviewed on tape. And the evidence must be safeguarded so that it is not suspiciously unavailable later. In short, be sure your self-control is adequate to allow you to deal decisively with resistance or assault, without ever going beyond the limits of reasonable force. Then be sure you can justify what you do, and preserve the best possible evidence of your justification and the reasonableness of your response. And remember that police officers can lawfully use force only for defense and control, never for punishment.

Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies at Manning & Marder, Kass, Ellrod, Ramirez.

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