Use-of-force policies and training: a reasoned approach - part two - Legal Digest

Thomas D. Petrowski

This is the second of a two-part article (1) examining law enforcement policies and training regarding the use of force. The first part provided an overview of constitutional constraints on the use of force by law enforcement and addressed the inherent hesitation of police officers to use significant levels of force. The law requires law enforcement officers to be reasonable and provides that there cannot be bright-line rules--"mechanical applications" in the words of the Supreme Court (2)--regarding what level of force an officer may use. Practical considerations inform the law. The law, which reflects the pragmatic factors, and the natural hesitation officers experience when using force suggest it is not prudent to use an escalating force continuum when training officers to use force in defense of life. Force continua perpetuate hesitation and exacerbate the natural reluctance of officers to apply significant force even when faced with a serious threat.

The Primary Use-of-Force Training Focus

When evaluating the reasonableness of force used by law enforcement, the Supreme Court said in Graham v. Connor (3) that "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application...; however, its proper application requires careful attention to the facts and circumstances of each particular case, including... whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight." (4) The Court thus observes that use of force by law enforcement officers (5) can arise from two circumstances: (6) 1) in response to an imminent threat of harm from a subject or 2) to effect the seizure of a nonthreatening subject who is resisting or attempting to escape.

Use-of-force trainers must define a training focus that addresses both distinct situations. Using force to defend against serious assaults is a priority because of the gravity of the encounter; using force to make arrests--where there is no immediate threat to the arresting officer or others--is a significant training concern because this use of force is far more common than using force in defense of life. (7) The dilemma facing use-of-force trainers is how to prepare officers to use reasonable force in both situations--using adequate force without hesitation in defense of life but never using excessive force to make an arrest of a nonthreatening subject. The answer is to train officers to understand when they face an imminent threat. The ability to assess a threat will prompt officers to use necessary force in a timely manner when they are about to be assaulted and discourage unnecessary force when seizing an uncooperative, but nonthreatening, subject.

Threat Assessment

The cornerstone of use-of-force training should be threat assessment. The essence of the reasonableness inquiry in defense-of-life cases is whether the officer who used force reasonably perceived a threat. (8) That is, whenever law enforcement officers use force, the legal evaluation will focus on whether they reasonably perceived a threat at the time they used force and whether the force used was a response that an objectively reasonable law enforcement officer might have selected. Thus, the most important use-of-force attribute any law enforcement officer can develop is the ability to recognize a threat. The goal of this training is to enable officers to recognize an imminent threat and reasonably respond in a timely manner. (9)

A threat is a capability to do harm joined by hostile intent. (10) Both elements must be present for an individual to present a threat. Training should emphasize indicators of hostile intent and indicators of a capability (i.e., what subject conduct represents a threat). (11) Threat factors can be categorized as an indicator of either a capability or intent. Intent of a subject is the more critical consideration, but recognizing and articulating the intent of someone, particularly prior to an actual assault, often is very difficult. Examples of indicators of intent include aggressive verbal and nonverbal communications, coupled with noncompliance with clear verbal commands of an officer. (12) Capability indicators are easier to recognize because they are more tangible. For example, possession of, or access to, a weapon (including an officer's weapon), a demonstrated combat ability or skill, size or fitness, or multiple subjects clearly indicate a threat. Training to focus on cues of the subject that indicate a capability to harm, and understanding the logical inferences of those cues, is paramount.

For example, in training to assess a deadly threat, the FBI provides four categories of a deadly threat which are taught in conjunction with its deadly force policy. (13) If an agent has probable cause to believe any of the four examples exist and the subject poses a threat of serious physical injury, then deadly force may be permissible under the policy. The four examples. of a deadly threat are as follows:

1) The subject possesses a weapon, or is attempting to gain access to a weapon, under circumstances indicating an intention to use it against the agent or others.

2) The subject is armed and running to gain the tactical advantage of cover.

3) A subject with the capability of inflicting death or serious physical injury, or otherwise incapacitating agents, without a deadly weapon, is demonstrating an intention to do so.

4) The subject is attempting to escape the vicinity of a violent confrontation in which he or she inflicted or attempted the infliction of death or serious physical injury.

Not only is intent difficult to determine before an actual attack, but it is also a natural human reaction to hesitate--subconsciously hoping the assault does not manifest. (14) This is why the common practice is to wait until a threat manifests--making the threat obvious--even though this places the victim officer in avoidable peril. (15)

Focusing use-of-force training on threat assessment prepares officers to make reasonable use-of-force decisions when confronted with a threat or when apprehending a nonthreatening subject. When officers thoroughly understand threat assessment, they recognize the existence and nature of a threat. When there is no immediate threat, officers have time to consider less intrusive means of effecting the arrest. However, if a threat exists, the officer immediately can address it without the delay caused by natural hesitation or a continuum. A reasonable response to a violent assault is to initially consider whether deadly force is necessary. If it is not, the officer can select a suitable nondeadly option. If deadly force is necessary, there rarely is time to consider another option--which is exactly the problem with the conventional force continuum. Only when deadly force is not necessary is an officer likely to have the luxury of a moment to consider a nondeadly force option. While the typical force continuum can be applied to seizures of individuals who do not pose a significant threat and the "reverse" continuum (considering deadly force first) is appropriate for confronting threats, both responses (in a much simpler format) are the result of the threat assessment-based training model, which will naturally cause some hesitation in using force to seize nonthreatening subjects--where it should be.

Threats of Attack Versus Actual Attacks

Use-of-force training should focus on the assessment of threat so officers can react to the threat of attack and not the actual attack. If a subject to be arrested has not threatened anyone, the arresting officers initially can apply little or no force and then escalate their response as needed. But, once a subject poses a threat, it is critical to respond to that threat before it manifests into an assault.

Use-of-force training should prepare officers to respond to a threat before the assault occurs, enabling them to determine when they have probable cause to believe a threat exists without waiting until the actual assault is in progress. When the subject of the officer's force already is assaulting the officer or another, the threat assessment is simple. However, the law, and any rational department policy, does not require an officer to wait to act until an actual assault occurs.

The quintessential practical consideration in use of force by an officer is to respond to the threat of violence and not to the actual violence itself. (16) While understanding that someone poses a threat during an assault is certainly easier, assuming the officer still is capable of doing so, the resulting tactical disadvantages greatly outweigh the purpose of "strike only after being struck" teachings.

Generally, if an officer responds to an actual assault, there has been an unnecessary delay in that response. (17) The law recognizes this fundamental principle. Examples of courts recognizing this issue are found in cases of police officers reasonably using deadly force against unarmed subjects who the officer reasonably believed to be armed. (18) For example, in Anderson v. Russell, (19) the Fourth Circuit Court of Appeals found reasonable an officer's (Russell) use of deadly force against an unarmed man (Anderson) who the officer believed was reaching for a weapon. The court noted:

"The evidence establishes that immediately before Russell fired, Anderson was reaching toward what Russell believed to be a gun. Any reasonable officer in Russell's position would have imminently feared for his safety and the safety of others. This circuit has consistently held that an officer does not have to wait until a gun is pointed at the officer before the officer is entitled to take action... [a]ccordingly, because Russell had sound reason to believe that Anderson was armed, Russell acted reasonably by firing on Anderson as a protective measure before directly observing a deadly weapon." (20)

The Fourth Circuit also addressed this issue in McLenagan v. Karnes, (21) holding that an officer was entitled to use deadly force when he had reason to believe that the suspect was armed. The court reemphasized this in Elliot v. Leavitt, (22) stating: "[t]he critical point, however, is precisely that [the subject] was 'threatening,' threatening the lives of [the officers]. The Fourth Amendment does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists." (23)

The notion that threats should be addressed before a suspect acts is not limited to deadly force situations; it applies to any use of force. In Wardlaw v. Pickett, (24) Pickett (a U.S. Marshal) was removing an individual from a courthouse. Mr. Wardlaw (a friend of the individual being removed) ran up to Pickett yelling at him to leave his friend alone. As Wardlaw closed on Pickett, and before actually assaulting him, "Pickett turned and punched the approaching Wardlaw once in the jaw and two or three times in the chest." (25) In finding Pickett's actions reasonable, the court noted:

"[W]hen Wardlaw rushed down the stairs toward them, Pickett... [was] in a vulnerable position, caught in a stairwell and moving an uncooperative individual. Wardlaw admits that he shouted at the deputies as he approached them, thus, again reasonably, raising a fear that he was about to attack. Furthermore, as Wardlaw acknowledges, Pickett hit him no more than three or four times, all in rapid succession. Once Wardlaw sat down on the stairs, and it became apparent that he was not going to attack, Pickett did not hit him.... We believe that no reasonable jury could find that Pickett's use of force was so excessive that no reasonable officer could have believed it to be lawful." (26)

This case illustrates an example of a reasonable response to the threat of assault without waiting for the actual assault to commence. Note that the court also took notice of the fact that Pickett ceased his use of force as soon as "it became apparent that he [Wardlaw] was not going to attack." The court found the use-of-force decision reasonable based on the presence, or absence, of a threat.

In Prymer v. Ogden, (27) a police officer (Ogden) had arrested and handcuffed Prymer. As Ogden was walking with Prymer to the police transport vehicle, Prymer made a gurgling noise in his throat as if he were going to spit on Ogden. Ogden "struck Mr. Prymer in the forehead with a straight-arm stun technique to redirect Mr. Prymer's head." (28) In finding Ogden's response to the threat of being spat on reasonable, the court commented that "Mr. Prymer was preparing to spit on Officer Ogden and that the openhanded stun technique was a reasonable response to prevent Mr. Prymer's actions." (29)

Reasonable Force Is Always Preemptive

In use-of-force training, the concept of striking after the threat is realized but before the assault commences often is referred to as preemptive force. This incorrectly suggests that using force after the assault commences is not preemptive. Actually, any legal use of force is preemptive in nature, regardless of whether the assault has started.

Force lawfully used is employed to prevent-that is, preempt-future harm; it is never to punish.

Once an individual has commenced an assault, force used against that subject is not to address the previous assault, but to prevent future assaults. The assessment of threat is just easier once the assault occurs except for force included in a criminal sentence. Constitutionally permissive force always is preemptive in nature. Sound use-of-force training should refrain from characterizing preassault responses as "preemptive" because it suggests a legal distinction between preassault and postassault uses of force. There is no such distinction. It is either justified (i.e., the threat has reasonably been perceived) or it is not.

Action Versus Reaction

Training to respond to threats lets officers act, not react. This is critcal because there are inherent limitations on a person's ability to assess and respond to perceived threats. An individual's reaction always is slower than the action that prompted the response. This is commonly referred to as the reactionary gap. (30) Action always beats reaction, making it even more critical to respond to the threat of violence, and not to the actual violence itself. In any violent encounter, one party takes advantage of the reactionary gap; the other must react and be at a significant disadvantage. When possible, officers must be on the "action" side of the action/reaction model.

InMontoute v. Carr, (31) the Court of Appeals for the 11th Circuit Court addressed the reactionary gap and the concept that an officer must react to a threat before it manifests into an assault. In Montoute, a police officer was chasing a subject armed with a sawed-off shotgun. The officer eventually shot the subject in the back after verbal commands to stop went unheeded. The court noted:

"[although the subject] never turned to face [the pursuing officer] and never actually pointed the sawed-off shotgun at anyone.... There was nothing to prevent him from doing either, or both, in a split second. At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force." (32)

Hesitation, resulting in a delay of only fractions of a second, puts an officer at great risk, particularly when coupled with the unavoidable psychophysiological delay associated with reacting to a subject's action. Training to respond to preassault threats, as the officer did in Montoute, places officers in a position to act and the subject in the disadvantageous position of reacting.

Reducing Incidents of Unreasonable Force

Threat assessment training will reduce incidents of unreasonable force. Courts look for the presence of a threat or attempt to escape in evaluating use of force by law enforcement. If courts find the force to be unreasonable, it is typically because there was no threat or escape attempt. For example, in Lee v. Ferraro, (33) an officer allegedly slammed an arrestee's head into the trunk of her car after arresting and handcuffing her. The court found:

"...there is absolutely no evidence indicating that [the arrestee] posed any threat to the arresting officer or to anyone else. Similarly, ...there is no indication that [the arrestee] actively resisted or attempted to flee.... We can discern no reason, let alone any legitimate law enforcement need, for [the officer] to have led [the arrestee] to the back of her car and slammed her head against the trunk after she was arrested and secured in handcuffs. At this point, [the arrestee] clearly posed no threat at all to the officer or to anyone else and no risk of flight. Under all of the factors set forth in the governing case law, the facts...plainly show that the force used by [the officer] after effecting [the] arrest was unnecessary and disproportionate." (34)

This case illustrates the chief use-of-force concern of the law enforcement manager: a postarrest, postthreat use of force. It typically occurs after a high-stress interaction between the arresting officer and the subject, such as a high-speed chase or assault by the subject. Such uses of force are punitive in nature, and, while there may be extreme provocation, such force used in the absence of a threat or escape attempt never will be constitutionally reasonable.

The training model based on threat assessment teaches officers to instinctively associate use of force with a threat. It conditions officers to respond to a threat with appropriate force and immediately cease all force options once an arrest is effected and there is no threat. (35) This method underscores the inviolate rule that, regardless of any provocation, once a seizure has been made and the threat ceases, so must any use of force.

The response of many departments (particularly after well-publicized incidents) is to implement across-the-board restrictions on all uses of force and to emphasize an escalating force continuum. However, denying officers lawful and necessary force options is not the appropriate method to reduce uses of excessive force. Proper training in threat assessment is the answer; training should condition officers to associate force with a threat and associate discontinuing force with the termination of a threat.

A Reasoned Use-of-Force Policy

A sound use-of-force policy should explain its purpose and philosophy. The policy should emphasize reasonableness as its core--both in the perception of a threat or escape attempt and the application of force. The adoption of any mechanical rules regarding the application of force must be avoided because each circumstance is unique and reasonableness is based on the totality of the circumstances. The policy should address the two justifications for using force: a threat to officers or others or to effect seizures of nonthreatening subjects.

Specific quotes from Graham (36) and any relevant state law (37) also should be included. It is imperative that departments identify considerations in determining reasonableness and include examples of what constitutes a threat. A policy should include a discussion of deadly force and nondeadly force applications (38) through a random presentation of force options (not as a continuum). It also should include the requirement to seek medical attention if the force used has resulted in any injury to the subject, (39) as well as administrative reporting requirements regarding use-of-force incidents. The cornerstone of the policy should be threat assessment, not an escalating approach or a force continuum. Escalating responses should be encouraged when making seizures of individuals assessed to be nonthreatening but never must be the foundation of a force policy.

Conclusion

The U.S. Constitution prohibits law enforcement officers from using unreasonable force. The determination of what force is reasonable is based on the unique, practical considerations facing the officer. "Reasonableness" is a concept not capable of precise definition. Like obscenity, it is difficult to legally define but will be known when seen. (40) Force can be lawfully used by law enforcement officers either in response to a threat or to effect the seizure of a nonthreatening subject. Officer response to these two justifications can be very different; training and policies should emphasize this distinction.

When law enforcement officers use force, the ultimate legal questions are: 1) why the officers perceived the subject of their force to be either a threat or to otherwise hinder the seizure in a nonthreatening manner; and 2) whether that perception and the response were objectively reasonable.

Policy makers and trainers must focus on core use-of-force principles:

* Hesitation in using force is natural and inevitable. Policies and training must focus on overcoming hesitation, not encouraging it.

* There never can be bright-line rules. Every use-of-force situation is unique.

* The cornerstone of use-of-force training must be threat assessment.

* Officers must be trained to respond to the threat of violence and not to the actual violence itself.

* Use-of-force responses to the two force justifications are very different. Where there is a threat, officers must be trained to not hesitate and must be able to deploy reasonable force quickly. When seizing a nonthreatening subject, officers often can use force in an escalating manner and attempt less intrusive force options.

Using force in an escalating manner must be a secondary consideration. Because arrests of non-threatening subjects are more common, some departments make the escalating approach the foundation of their use-of-force policies and training in order to prevent the excessive use force. This exacerbates the natural hesitation officers experience and leaves officers less prepared to respond to a threat. The focus of policy and training first and foremost must be the determination of whether someone poses a threat. Use-of-force training based on threat assessment will result in an escalating approach when it is appropriate and a timely response when it is not. If used effectively, this approach will train officers to immediately cease application of force once a threat is no longer present and eliminate postarrest punitive force. It is clear, in both the law and in practice, that the proper approach to the use of force is not all-encompassing restrictions on force or using the escalating force continua as the primar y response. Such dangerous policies place officers at significant and avoidable risk. As the Fourth Circuit Court of Appeals said in Elliot: "The Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm" (41)-neither should thier departments.

Endnotes

(1.) Thomas D. Petrowski, "Use-of-Force Policies and Training: A Reasoned Approach," FBI Law Enforcement Bulletin, October 2002, 25-32 (hereafter "Part One").

(2.) Graham v. Connor, 490 U.S. 386, 396 (1989).

(3.) Id. at 396.

(4.) Graham at 396.

(5.) All law enforcement seizures inherently involve some use or threat of force. Even handcuffing a compliant subject constitutes a level of force. The Supreme Court said in Graham at 396: "Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." This article focuses on force used to respond to subject resistance--either a threatening or nonthreatening hindrance to a seizure.

(6.) The critical distinction between the two justifications is the presence of a threat of harm to the arresting officers or others. A subject who is escaping poses different tactical considerations than an individual simply resisting. However, in terms of preparing an officer to make such a seizure, the significant consideration is that there is no imminent threat to the officers, which may allow time for an escalating approach and possible attempt at lesser force options. Obviously, a subject can be a threat to the officers or others while escaping or resisting in which case force, up to and including deadly force, would be applied to interdict the threat. See infra, notes 8 and 12.

(7.) See U.S. Department of Justice, Office of Justice Programs, Use of Force By Police, Overview of National and Local Data, (1999). This report notes at page vii of the Executive Summary:

In 7,512 adult custod[ial] arrests...fewer than one out of five arrests involved police use of physical force (defined as use of any weapon, use of any weaponless tactic, or use of severe restraints)...Also known with substantial confidence is that police use of force typically occurs at the lower end of the force spectrum, involving grabbing, pushing, or shoving. In the study focusing on 7,512 adult custody arrests, for instance, about 80 percent of arrests in which police used force involved use of weaponless tactics. Grabbing was the tactic used about half the time. About 2.1 percent of all arrests involved use of weapons by police. Chemical agents, such as pepper spray, were the weapons most frequently used (1.2 percent of all arrests), with firearms least often used (0.2 percent).

(8.) The Supreme Court made clear in Graham that the conclusive legal questions when law enforcement officers use force in self defense are: (i) why the officer perceived the subject of their force to be a threat or to otherwise hinder the seizure in a nonthreatening manner; and (ii) whether that perception, and the response, were objectively reasonable. Additionally, the Court also focused on the presence of a threat as the foundation of the use-of-force decision in its most significant opinion on the use of deadly force by law enforcement, Tennessee v. Garner, 105 S. Ct. 1694 (1985). The Court said at 1701: "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly fo rce" (emphasis added).

When force is used to effect the seizure of a nonthreatening noncompliant subject, the inquiry also is focused on the officer's reasonableness in response to the conduct, albeit nonthreatening, of the subject.

The Supreme Court also has used the presence or absence of a threat as the determining issue in Eighth Amendment use-of-force cases. In Hope v. Pelzer, 122 S. Ct. 2508 (2002), at 2513, the Court affirmed the lower courts finding that "[using force] for a period of time that surpasses that necessary to quell a threat or restore order is a violation of the Eighth Amendment; and at 2519: [w]e find that [the use of force] for a period of time extending past that required to address an immediate danger or threat is a violation of the Eighth Amendment" (emphasis added). See also Treats v. Morgan, 8th Cir., 2002 WL 31055497, where the court noted: "[t]he law...does [not] justify punitive use of force on difficult inmates not posing a real threat to other persons.... A basis for an Eighth Amendment claim exists when...an officer uses pepper spray without warning on an inmate who...poses no threat."

(9.) This training focus avoids unnecessarily going through a progressive series of options to experiment to find the least intrusive tool. See Part One, note 28.

(10.) Some force trainers include "opportunity" as a third element to this formula. Opportunity is actually a component of the "capability" element, because an individual would not have the capability to imminently harm if the opportunity was not present.

(11.) For an example of training to identify cues which indicate a threat, see generally Thomas Gillespie, Darrel Hart, and John Boren, Police Use of Farce, A Line Officer's Guide (Shawnee Mission, KS: Varro Press, 1998).

(12.) This was part of the rationale of the Supreme Court in noting in Garner, supra note 8, that law enforcement officers should give verbal warnings when feasible before using deadly force to prevent the escape of an unarmed dangerous subject. The Court said in Garner at 1701. "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."

But, when warnings are not feasible, they are not required, and no officer should delay in using necessary force. This issue was presented in McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994). The court noted at 1007: "For all [the officer] knew, the hesitation involved in giving a warning could readily cause such a warning to be his last. We decline, therefore, to fashion an inflexible rule that...an officer must always warn his suspect before firing--particularly where, as here, such a warning might easily have cost the officer his life."

Unfortunately, some courts greatly exaggerate the constitutional duty to give such warnings even when the facts clearly indicate no feasible way for such warnings to be given. See Deorle v. Rutherford, 242 F.3d 1119 (9th Cir. 2001) (Police officer should have given warnings before bean bag shooting of armed attacking subject 30 feet away), Vaughn v. Cox, 264 F.3d 1027 (11th Cir. 2001) (during high speed chase reaching 85 mph officer should have given verbal warnings before shooting from his cruiser into subject's vehicle), Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001) (FBI sniper deployed 200 yards in the woods from an armed subject should have given verbal warnings before shooting).

(13.) See John C. Hall, "FBI Training on the New Federal Deadly Force Policy," FBI Law Enforcement Bulletin, April 1996, 25-32. It should be noted that state and local law enforcement agencies may have legal constraints more restrictive then the federal constitutional limits applicable to the FBI deadly force policy.

(14.) See Part One, page 28.

(15.) It should be noted that threat assessment based on intent and capability of a subject parallels use-of-force training for officers. The attributes use-of-force trainers instill in trainees are those that officers look for in subjects when assessing a threat. Any sound force training program should emphasize the mind-set of the officer ahead of the ability to apply force options. Bringing a proper mind-set to an encounter significantly supports both threat assessment and responding without hesitation.

(16.) The strategy of addressing a threat before it manifests is fundamental to any violent encounter. This point often has been made since the terrorist attacks of September 11, 2001. For example, President Bush, in his commencement speech to West Point on June 1, 2002, remarked that "[w]e must take the battle to the enemy, disrupt his plans, and confront the worse threats before they emerge...the only path to safety is the path of action... [i]f we wait for threats to fully materialize, we will have waited too long...the war on terror will not be won on the defensive." Mike Allen and Karen DeYoung, The Washington Post, June 2, 2002.

(See also Col. Rex Applegate, Kill or Get Killed (Boulder, CO: Paladin Press, 1943), and its progeny. Applegate discusses this issue regarding law enforcement at 103: "A pure definition of 'defensive shooting' is 'fire returned by an individual after the enemy fires the first shot.' The individual is then considered to be shooting in defense of his life.... This often occurs in law enforcement, without any intent of the officer involved. In some cases, such instructions--that is, to shoot only when shot at--actually have been issued to law enforcement officers in combating known desperate men. The result has been casualties among those who have faithfully followed them."

(17.) Except for ambushes (see Part One, notes 13 and 23), assaults on law enforcement officers typically are prefaced by some interaction between the officer and the attacker.

(18.) For examples of cases holding officer's use of deadly force to be reasonable see Roy v. Lewiston, 42 F.3d 691 (1st Cir. 1994) (police shot intoxicated man with two steak knives); Salim v. Proulx, 93 F. 3rd 86 (2nd Cir. 1996) (police shot juvenile who grabbed for officer's firearm); Colston v. Barnhart, 130 F.3d 96 (5th Cir. 1997) (police shot unarmed subject after he knocked them to the ground and moved in direction of police vehicle where shotgun was located); Pena v. Leombruni, 200 F.3d 1031 (7th Cir. 1999) (police officer shot man attacking with a concrete slab); Monroe v. City of Phoeniz, 248 F. 3d 851 (9th Cir. 2001) (officer shot unarmed man who attacked officer); Wilson v. Meeks, 52 F. 3d 1547 (10th Cir. 1995) (police shot man armed with empty handgun). For examples of qualified immunity being denied in the use of deadly force against an unarmed subject, see Ludwig v. Anderson, 54 F.3d 465 (8th Cir, 1995) (police shot emotionally disturbed man armed with a knife) and Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002) (police officer shot unarmed man who posed no threat).

(19.) 247 F.3d 125 (4th Cir. 2001). See also Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001) where the court noted at 899: "An officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun;" and the Court in Ryder v. City of Topeka, 814 F.2d 1412, (10th Cir. 1987) at 1419, note 16, noting that "[t]here might be numerous situations that would justify a police officer's belief that a suspect was armed and that he posed an immediate threat to the officer, even though the suspect was not in fact armed. Certainly, whether a suspect is armed is a relevant factor in determining whether the suspect poses an immediate danger. A per se rule, however, that a police officer never may employ deadly force unless attacked by a suspect possessing a deadly weapon would place a police officer in a dangerous and unreasonable situation. Therefore, we conclude that whether a particular sei zure is reasonable is dependent on the 'totality of the circumstances' and not simply on whether the suspect was actually armed."

(20.) Id. at 131 (emphasis added).

(21.) The court in McLenagan held at 1007: "We do not think it wise to require a police officer, in all instances, to actually detect the presence of an object in a suspect's hands before firing on him." See also Part One at pages 26-27.

(22.) 99 F.3d 640 (4th Cir. 1996). In Elliot, two police officers arrested Mr. Elliot for drunk driving. They handcuffed him and placed him in a marked cruiser. While the police officers were standing outside the cruiser, Mr. Elliot produced a handgun (which the arresting officers missed during their search of him) and pointed it at them. After unheeded verbal commands by the officers, both officers fired at Mr. Elliot in the cruiser fatally wounding him. The court granted Summary Judgement for the officers notwithstanding plaintiff's arguments that the officers' conduct was unreasonable because: Elliot was drunk; they should have found the gun during their search; they fired too many rounds; they should have restrained Elliot more effectively; they should have used less intrusive means; and, they should have simply gotten out of the way.

(23.) Id. at 643.

(24.) 1 F.3d 1297 (D.C. Cir. 1993).

(25.) Id. at 1300.

(26.) Wardlaw at 1204 (emphasis added).

(27.) 29 F.3d 1208 (7th Cir. 1994).

(28.) Id. at 1211.

(29.) Prymer at 1212 (emphasis added).

(30.) See Bruce K. Siddle, Sharpening the Warrior's Edge, Chapter Four: Survival Reaction Time, PPCT Research Publications, Millstadt, IL, Fourth Edition, 2000.

(31.) 114 F.3d 181 (11th Cir. 1997).

(32.) Id. at 185.

(33.) 284 F.3d 1188 (11th Cir. 2002).

(34.) Id. at 1198. It should be noted that the court was reviewing this case to determine if it was appropriate to grant the arresting officer qualified immunity and therefore, assumed facts in a light most favorable to the arrestee. See also U.S. v. Harris, 293 F.3d 863, (5th Cir. 2002) (postarrest, postthreat use of force by police officer involving substantial provocation by arrestee/victim and ethic animus of arresting officer).

(35.) Of course once an arrest is made, there still may be a threat issue. Examples include the Elliot and Prymer cases noted herein where both subjects were handcuffed and in custody when they posed a threat to the arresting officers.

(36.) See Part One, note 6, for language in the Graham decision suitable for policy introduction. This language often also is used in jury instructions during excessive force litigation. See Cox v. Treadway, 75 F.3d 230 (6th Cir. 1996). The court upheld jury instructions that included specific Graham language, notwithstanding the plaintiff's characterization, and objection, of the language as inappropriate "Heat of Battle" instructions.

(37.) For example, the following are Florida statutes relevant to the use of force by state and local law enforcement officers: [section] 776.05, law enforcement officers use of force in making an arrest; [section] 776.06, deadly force; and [section] 776.07, use of force to prevent escape.

(38.) Departments should consider specifically addressing force options. For example, defining the use of an impact weapon as either deadly or nondeadly force or the use of a knife as an improvised weapon. See Steven Tarani, "Model Policy for Patrol Knives," Law and Order, January 2002. Mr. Tarani is a consultant to the FBI Defensive Tactics Program regarding edged and impact weapons.

(39.) While a use of force may be reasonable, it may create a duty to provide the subject of that force medical treatment. Not providing access to that treatment may result in other constitutional issues. See Gibson v. County of Washoe, Nevada, 290 F.3d 1175 (9th Cir. 2002) (denial of Summary Judgement regarding defendant county's policy of delaying medical screening of combative inmates as it may pose a substantial risk of serious harm to detainees and whether county was aware of the risk). Cf. Wilson v. Meeks, 52 F.3d 1547, (10th Cir. 1995) (officers did not have duty to render medical attention to subject they had just shot).

(40.) Supreme Court Justice Stewart said in his concurring opinion in Jacobellis v. State of Ohio, 84 S. Ct. 1676 (1964) regarding obscenity: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it...."

(41.) Elliott at 641.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Special Agent Petrowski is a legal instructor at the FBI Academy.

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