Deadly force: a question of necessity

FBI Law Enforcement Bulletin,The, Feb, 1995 by John C. Hall

"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."

- Graham v. Connor, 490 U.S. 386, 396-397 (1989)

Federal constitutional standards permit law enforcement officers to use deadly force to apprehend criminal suspects when there is "probable cause to believe that the suspect poses a threat of serious physical harm...to the officer or to others..." and if deadly force "is necessary" to effect the apprehension.(1) This formulation of the constitutional rule by the Supreme Court suggests two factors - dangerousness and necessity - as relevant to the question whether deadly force is constitutionally permissible.

With respect to "dangerousness," the Court has suggested that "...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...,"(2) the officer reasonably could conclude that the suspect is dangerous. However, the absence of comparable guidance on the issue of "necessity" has invited serious legal challenges on this issue alone. These challenges generally may be described as follows:

1) Deadly force was not necessary because less intrusive alternatives were available, or

2) If deadly force was necessary, the officer's prior actions created the necessity.

Both arguments concede the reasonableness of an officer's threat assessment, and both seek to deflect the attention - and the responsibility - from the suspect's actions to the officer's judgment. The first would impose a duty on an officer confronted with a lethal threat to consider other options before using deadly force; the second would impose a duty on an officer to anticipate and prevent actions of a suspect that might make the use of deadly force necessary.

Whether the Constitution imposes these duties on police officers is a question that must be answered if officers and the courts are to understand and to apply properly the constitutional standards governing the use of deadly force. The logical starting point is the Supreme Court's interpretation of the fourth amendment.

In its 1989 landmark decision of Graham v. Connor,(3) the Supreme Court established the fourth amendment standard of "objective reasonableness" as the appropriate one for assessing a police officer's use of force in the context of making an arrest or other seizure of a person. Noting that the standard is "not capable of precise definition or mechanical application," the Court emphasized that the issue is one of "reasonableness at the moment "(4) (emphasis added)

Equally important, the Court held that the inquiry must be limited to "the facts and circumstances confronting them [the officers]...judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight...."(5) It is within this context and from this perspective that the reasonableness of an officer's judgment of the "necessity" to use deadly force must be viewed.

Less Intrusive Alternatives

The facts in Bradford v. City of Los Angeles(6) illustrate a plaintiff's contention that an officer was not justified in using deadly force because less intrusive alternatives were available. In Bradford, an officer used a police car to strike a kidnaping suspect who was fleeing from the ransom drop site. The officer had learned from a radio report that the suspect had arrived by car at the ransom drop site, had picked up a ransom package, had tossed the package into a waiting car when approached by a police officer, and then had fled on foot when commanded by other officers to stop. The suspect suffered serious injuries in the incident, for which he sued the officer and his department under Title 42 U.S.C. Section 1983. A jury returned a verdict for the plaintiff.

On appeal, the defendant did not dispute the point that using a car to strike a suspect constitutes the use of deadly force. Furthermore, the appellate court agreed that the officer had probable cause to believe that the plaintiff was committing a crime involving the threatened infliction of serious physical harm, i.e., the constitutional standard announced by the Supreme Court in Tennessee v. Garner as justifying a reasonable belief that a suspect is dangerous. However, in defining the question before the jury as "whether the amount of force used by [the officer] was necessary to prevent [plaintiff's] escape," the court ruled that "the jury could conclude that [the officer's] use of a car as a weapon was unnecessary because [he] had more reasonable alternatives."(7)

The court reasoned that the presence of other officers at the drop site and the available option of driving past the plaintiff to block his path would support the jury's determination that the officer's "unorthodox actions" of striking him with the car were unreasonable. The court rejected the defense argument that the "availability of alternative measures 'is irrelevant'" and held that when the plaintiff presents "substantial evidence that less intrusive means were available, it is up to the jury to determine if those means were reasonable."(8)