The Policing project is on ALI’s Annual Meeting agenda this year for the first time, specifically, Use of Force.  These principles were prioritized because there is an immediate need for guidance on this issue, and many states and police departments are considering reform to their current use of force policies.

As the project progresses, The ALI Adviser will share several sections of the project, including Black Letter and Comments. The first in this series is Section 5.04 – Proportional Use of Force.

Black Letter and Comment from Tentative Draft No. 1:

§ 5.04. Proportional Use of Force

Officers should not use substantially more force than is proportional to the law-enforcement objective at stake.

(a) Deadly force may only be used in response to an imminent threat of serious physical harm or death to officers or others, or to subdue a person suspected of a serious violent crime.

(b) Non-deadly force should not be used if its impact is likely to be substantially out of proportion to the threat of harm to officers or others or to the extent of property damage threatened. When non-deadly force is used to carry out a search or seizure, such force only may be used as is reasonably proportionate to the threat posed in performing the search or seizure, and to the societal interest at stake in seeing that the search or seizure is performed.

Comment:

a. Policy. Proportionality requires that the risk of harm faced by a person correspond in degree to the seriousness of the public interest that is being served by the use of force. This requirement of proportionality means that even when force is the minimum necessary force to achieve a law-enforcement end, its use may be impermissible if the harm it would cause is disproportionate to the end that officers seek to achieve. The proportionality principle demands that law-enforcement interests go unserved if achieving them would impose undue harm. Thus, when an officer faces a threat to the officer’s safety, force should not be substantially disproportionate to the physical harm that is threatened. When an officer faces resistance or a threat to the success of an arrest, search, or other law-enforcement activity justifying the use of force, force should not be substantially disproportionate either to the threat or to the significance to the public interest in the specific activity that the officer is using force to achieve. Where engaging in a law-enforcement activity, such as an arrest, may result in a use of force substantially out of proportion to the societal interest in the activity, officers should look for alternatives to the activity in order to minimize the likelihood of disproportionate force.

The proportionality principle is implicit in many agency policies, use-of-force matrices, and narrative descriptions of force options that are used in training or policy. Nevertheless, departments should make explicit that officers may use greater force only when the significance of the public interest justifies it. Moreover, department policies often do not expressly acknowledge that where the harms of force are disproportionate to the public goal the use of force serves, police officers should permit the goal to go unserved. For example, where the public interest is in enforcing a minor criminal law, it may be better to permit a suspect to escape than to use force in a way that risks great harm to the suspect or third parties.

The U.S. Supreme Court’s ruling in Tennessee v. Garner, 471 U.S. 1 (1985), and other constitutional cases makes clear the need to limit deadly force to situations in which officers or civilians face a serious or deadly threat from a suspect. But those cases do not extend the principle of proportionality to the use of force by officers more generally.

b. Policies barring or limiting certain uses of force. Some uses of force are almost invariably disproportionate and for that reason should be barred. Many agencies already prohibit firing warning shots or firing at or from moving vehicles except in situations in which the officers or others face an imminent threat of death or serious injury. Similarly, agencies commonly bar or limit the use of hog-tying, chokeholds, neck restraints, and other restraints that pose a heightened danger of asphyxiation.

Agencies also provide and train officers in using intermediate weapons that assist in forcing compliance and restraining individuals, but are not likely to cause death, in order to permit officers to use proportional force. Officers should be equipped with some less-lethal tools for using force.

c. Public interests. Proportionality demands different responses in different law- enforcement situations, depending on the public interests at stake and the risks of harm and indignity. Physical harms to individuals are not the only harms that must be taken into account. The use of force can damage or destroy property. It can also cause psychological damage to individuals. All this should also be considered in evaluating the proportionality of force. This evaluation must also recognize that different populations are differently susceptible to harm from the use of force: vulnerable individuals such as juveniles, the disabled, the mentally ill, and the elderly may be at special risk. Thus, the harms of a use of force may be proportional to the law-enforcement goal it serves when used against one member of the public, but disproportionate to the same goal when used against someone more vulnerable to harm.

d. Duty to render aid. Proportionality also requires caring for those against whom force is used, once a situation is sufficiently under control. Agencies should instruct and require officers to render necessary medical aid to those against whom force is utilized as soon as is practicable following imposition of such force.

 

 

Barry Friedman

Reporter, Policing Principles

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at NYU Law.  He is one of the country’s leading authorities on constitutional law, policing, criminal procedure, and the federal courts. He is the author of the critically-acclaimed The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), and the forthcoming book on policing and the Constitution, Unwarranted: Policing without Permission(February 2017). He is the founding director of NYU Law’s Policing Project.

Brandon L. Garrett

Associate Reporter, Policing Principles

Brandon L. Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law. Garrett’s recent research includes studies of DNA exonerations and organizational prosecutions. Two of his recent books include Too Big to Jail: How Prosecutors Compromise with Corporations and Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Rachel A. Harmon

Associate Reporter, Policing Principles

Rachel Harmon is the F.D.G Ribble Professor of Law at the University of Virginia School of Law.  She teaches in the areas of criminal law, criminal procedure and civil rights, and her scholarship focuses on policing and its regulation. From 1998 to 2006, Harmon served as a prosecutor at the U.S. Department of Justice. After a brief stint at the U.S. Attorney’s Office in the Eastern District of Virginia, Harmon worked in the Civil Rights Division, Criminal Section, prosecuting hate crimes and official misconduct cases, many of which involved excessive force or sexual abuse by police officers.

Tracey L. Meares

Associate Reporter, Policing Principles

Tracey L. Meares is the Walton Hale Hamilton Professor of Law at Yale Law School. She has worked extensively with the federal government, having served on the Committee on Law and Justice, a National Research Council Standing Committee of the National Academy of Sciences from 2004–2011. Additionally, she has served on two National Research Council Review Committees: one to review research on police policy and practices, which produced the book, Fairness and Effectiveness in Policing: The Evidence and another to review the National Institute of Justice, Strengthening the National Institute of Justice. In November of 2010, she was named by Attorney General Eric Holder to sit on the Department of Justice’s newly-created Science Advisory Board; and in December 2014, President Obama named her as a member of his Task Force on 21st Century Policing.

Christopher Slobogin

Associate Reporter, Policing Principles

Christopher Slobogin is the Milton R. Underwood Chair in Law; Director, Criminal Justice Program; and Affiliate Professor of Psychiatry at Vanderbilt Law School. He has authored more than 100 articles, books and chapters on topics relating to criminal law and procedure, mental health law and evidence, and is one of the five most cited criminal law and procedure professors in the country.  Particularly influential has been his work on the Fourth Amendment and technology and his writing on mental disability and criminal law.

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