Running head: LEPS 500 MODULE 5: POLICE USE OF FORCE STANDARDS 1

LEPS 500 Module 5: Police Use of Force: A National Standard?

Sean Kearney

University of San Diego

Module 5: Police Use of Force: A National Standard?

Much debate has attached to questions surrounding police use of force in America,

particularly since the 2014 shooting death of Michael Brown in Ferguson, Missouri. Central to

this discussion is a movement to standardize use of force policies amongst the nation’s

approximately 18,000 [Bureau of Justice Statistics (2016)] local, state, and Federal law

enforcement agencies. The 2019 National Law Enforcement Use of Force Committee,

comprised of leading experts and stakeholders, has taken on this critical policy question. The

Committee has conducted a thorough literature review, consulted and collaborated with

interested parties, and synthesized its work in the form of a policy recommendation.

Background and Literature Review

Review of the existing Constitutional standards promulgated by the United States

Supreme Court in Tennessee v. Garner and Graham v. Connor reveals in essence that objectively

reasonable force may be used, as determined by a similarly trained officer and without the

benefit of 20/20 hindsight. These standards have changed little since the 1980s and are the

present-day “law of the land” for use of force by law enforcement as discussed by Marvel and

Fields in LEPS 500 Presentation 5.1 (2019). More recently, Scott v. Harris clarified use of

deadly force in a vehicle pursuit in relation to the danger to the public caused by the suspect’s

flight.

After the death of Michael Brown in 2014, there has been a resurgence of scholarly works

in the area of police use of force. The majority of the literature focuses upon use of deadly force

against blacks and other minorities, and researchers such as Obasogie and Newman (2017) would

propose to treat this situation as a public health crisis to be solved with exhaustive policies. Entities

such as the Police Executive Research Forum (PERF) (2015), President Obama’s Task Force on
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21st Century Policing (2015), and the United States Commission on Civil Rights (2018) have also

studied this issue and recommended various strategies ranging from restrictive use of force

policies, consent decrees, enhanced training, and other complex remedies. However, as

Commissioner Peter Kirsanow of the U.S. Commission on Civil Rights notes in his dissenting

statement attached to its 2018 report:

The unfortunate fact of the matter is that even if every single police officer were
perfectly trained, had not a shred of explicit or implicit racial bias, and never made
a mistake under pressure, many individuals would still be killed by police every
year.

Another proposal, the International Association of Chiefs of Police (IACP) National Consensus

Policy (2017) crafted by law enforcement experts, adds structure to what is essentially the

Graham v. Connor standard of reasonableness, along with an emphasis on de-escalation and

refresher training.

Also noteworthy in the literature is that the relative infrequency of police use of force as a

percentage of all calls for service. A typical municipal police agency such as the San Diego

Police Department uses force in less than one percent of all calls for service [Marvel in LEPS

500 presentation 5.1 (2019)]. This statistic is all the more remarkable, considering that police

calls for service are typically generated when all other efforts to control a situation by non-law-

enforcement persons have failed.

In more recent police use of force incidents, video is often available as a result of body-

worn cameras, bystander cell phones, and other sources. It is germane to note, however, that

considerable dispute over the legitimacy of the use of force still exists, even with an insider’s

view of the incident as provided by video. After the Scott v. Harris decision, Kahan, Hoffman,

and Brahman (2009) noted that even with relatively incontrovertible video evidence such as that
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available from the Harris pursuit, there are those in the community that would not support the

use of deadly force to terminate a pursuit, and that such attitudes often reflect racial and political

lines.

In California, the 2018 shooting death of Stephon Clark, captured on police video in

Sacramento, gave life to a proposed amendment to California law regarding deadly force by

public officers. The bill, AB 931, would require that deadly force be singularly necessary to

resolve a situation as opposed to objectively reasonable as per Graham v. Connor, and proposed

that officers could be criminally charged with homicide if such guidelines were not followed.

Supporters of this bill claimed that increased accountability would result for police officers using

deadly force, while opponents asserted that officers would be held to an impossible standard

while making split-second decisions and could hesitate for fear of being charged with a crime.

AB 931 was defeated in the 2018 legislative session; however, it has been promised that a

similar bill will be introduced in the 2019 session.

Recommendations

In light of the continuum of proposals previously discussed, the 2019 National Law

Enforcement Use of Force Committee recommends standardizing policy on a national level

based upon the International Association of Chiefs of Police (IACP) National Consensus Policy

(2017). As suggested by the title, the policy is an agreement at a national level amongst eleven

expert law enforcement leadership organizations who understand the necessity of

standardization. The policy includes the following language, which encapsulates the Supreme

Court’s validated use of force standard from Graham v. Connor:

It is the policy of this law enforcement agency to value and preserve human life.
Officers shall use only the force that is objectively reasonable to effectively bring
an incident under control, while protecting the safety of the officer and others.
Officers shall use force only when no reasonably effective alternative appears to
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exist and shall use only the level of force which a reasonably prudent officer would
use under the same or similar circumstances.

Simply put, this policy has the best chance of survival as a viable and legally defensible course

of action as compared to other proposals.

Conclusion

After rigorous research, collaboration, and consideration of law enforcement use of force

policies and current best practices, the 2019 National Law Enforcement Use of Force Committee

has rendered a decision. The Committee feels that it has recommended a practical course of

action that meets or exceeds all reasonable expectations of its stakeholders. As the proposed

national use of force policy is implemented, the Committee is committed to actively soliciting

feedback in order to ensure that citizens receive the highest quality of service from the Nation’s

law enforcement officers. The Committee wishes to thank its members and stakeholders for

their time and effort in this critical endeavor.

References

Bureau of Justice Statistics (2016). National Sources of Law Enforcement Employment Data.

Retrieved from https://www.bjs.gov/content/pub/pdf/nsleed.pdf

California Legislative Information-AB 931 (2018). Retrieved from

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB931

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

International Association of Chiefs of Police (2017). National consensus policy on use of force.

Retrieved from https://www.theiacp.org/sites/default/files/all/n-

o/National_Consensus_Policy_On_Use_Of_Force.pdf

Kahan, D., Hoffman, D., & Braman, D. (2009). Whose eyes are you going to believe? Scott v.

Harris and the perils of cognitive illiberalism. Harvard Law Review, 122(3), 838–906.

Retrieved from http://harvardlawreview.org/wp-

content/uploads/2009/04/kahan_hoffman_braman.pdf

LEPS 500 Presentation 5.1 (2019). Retrieved from USD Blackboard.

Obasogie, O. K., & Newman, Z. (2017). Police violence, use of force policies, and public

health. American Journal of Law & Medicine, 43(2–3), 279–295.

https://doi.org/10.1177/0098858817723665

Police Executive Research Forum (Eds.) (2015). Re-engineering training on police use of force.

Retrieved from https://www.policeforum.org/assets/reengineeringtraining1.pdf

President’s Task Force on 21st Century Policing (2015) Final report of the President’s task force

on 21st century Policing. Retrieved from

https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf

Scott v. Harris, 550 U.S. 372 (2007)

Tennessee v. Garner, 471 U.S. 1 (1985)

United States Commission on Civil Rights (2018). Police use of force: an examination of

modern policing practices (Briefing Report). Washington, DC. Retrieved from

https://www.usccr.gov/pubs/2018/11-15-Police-Force.pdf