Articles
Use of Force Legal Implications
Mildred K. O?Linn, Esq.
Law enforcement tactics and training on the use of force throughout the United States have gone through a tremendous period of criticism and change over the last ten to fifteen years, mostly as a result of the spotlight focused on certain events by the media and as a result of an onslaught of litigation. In fact, purportedly 1 out of every 30 officers in the United States is involved in a lawsuit ? and 40-45% of those cases involved use of force allegations.
Peace officers should take note, however, that although you are frequently accused of excessive force, we rarely lose the battle. It is estimated that 80% of lawsuits against peace officers are defeated by legal motions and that we win 9 out 10 cases that go to a jury. The standard governing the use of force during a Fourth Amendment seizure was provided in the 1989 United States Supreme Court decision of Graham v. Connor. Officers must use objectively reasonable force to effect an arrest, to prevent escape or to overcome resistance and to effectively bring an incident under control given the facts and circumstances known to the officers at the time the force is used.
Vesting officers with authority to use force to protect the public welfare requires a careful balancing of all human interests and numerous other factors. Departmental policies and training must recognize the use of force as a range of options that necessitates an on-going, on-scene, contemporaneous evaluation. Even at its lowest level, the use of force is a serious responsibility. Thus, all sworn personnel must have an understanding of, and true appreciation for their departmental policy and the limitations on their authority. A true appreciation for the legal requirements and policy concerns is only achievable through simple, effective and court-defensible training. The NLETC-certified use of force systems are designed and road tested to meet these requirements. The historical support for these systematic use of force programs provides a strong presentation to a judicial body and to the public.
When instructing officers in the use and application of force techniques and systems it is essential to note that officers are not required to find the best option to deal with any set of circumstances. It is just as important to remember that same principle when we are critiquing and evaluating an officer?s use of force. Officers must make those decisions in split seconds and are required only to find a reasonable option, not the singular best option or a better option. Any reasonable decision is appropriate and legally acceptable. Police work is an art ? not a science ? there is no one right way to do anything! In the split seconds generally available, officers need to find a reasonable response. That is what a use of force training system must equip officers to do ? make appropriate decisions in the split seconds available to them. The NLETC-certified programs meet that need by providing levels of application of force to meet the resistance an officer is encountering.
There is another critical concept in the law the bears mentioning here: There is no basis for the classification of the LVNR at the level of deadly force. Deadly force is force with a reasonable probability of causing death. The application of the LVNR is intermediate force properly classified at a level equal to or below the use of an impact weapon.
Recent caselaw in the United States has dealt with the concept of use of deadly force by peace officers. Quite clearly the appropriate definition of deadly force when evaluating the actions of a peace officer, again, is force with a reasonable probability of causing death. Note that I did not include the words ?great bodily harm? or ?seriously bodily injury? in that definition. Simply stated: The LVNR system and the other components of the NLETC use of force systems are the most well researched, field tested and documented of all the use of force systems.'
Mildred K. O?Linn, Esq.
Los Angeles, July 2003'
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