Making the Arrest
Procedural Formalities
Under California law, for example, there are three technical requirements with which officers must comply when making an arrest. They are as follows:
Notification
Officers must notify the person that he is under arrest.87 While this is usually accomplished directly (“You’re under arrest”), any other words or conduct will suffice if it would have indicated to a reasonable person that he was under arrest; e.g., suspect was apprehended following a pursuit,88 officer took the suspect by the arm and told him he had a warrant for his arrest.89 Furthermore, notification is unnecessary if the suspect was apprehended while committing the crime.90
Specify Authority
Officers must notify the suspect of their authority to make the arrest.91 Because this simply means it must have been apparent to the suspect that he was being arrested by a law enforcement officer, this requirement is satisfied if the officer was in uniform or he displayed a badge.92
Specify the Crime
If the suspect wants to know what crime he is being arrested for, officers must tell him.93 (As noted earlier, it is immaterial that officers specified the “wrong” crime.)
Use of Force
It is, of course, sometimes necessary to use force to make an arrest.111 In fact, the Eleventh Circuit pointed out that “the use of force is an expected, necessary part of a law enforcement officer’s task of subduing and securing individuals suspected of committing crimes.”112 The question arises: How does the law distinguish between permissible and excessive force? The short answer is that force is permissible if it was reasonably necessary.113 “When we analyze excessive force claims,” said the Ninth Circuit, “our initial inquiry is whether the officers’ actions were objectively reasonable in light of the facts and circumstances confronting them.”114
Like the other police actions that are governed by the standard of “reasonableness,” the propriety of the use of force is intensely fact-specific. Thus, in applying this standard in a pursuit case, the U.S. Supreme Court began by noting, “[I]n the end we must still slosh our way through the factbound morass of ‘reasonableness.’"115 The problem for officers is that their decisions on the use of force must be made quickly and under extreme pressure, which means there is seldom time for “sloshing.”116 Taking note of this problem, the Court ruled that a hypertechnical analysis of the circumstances is inappropriate:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 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.117
For this reason, an officer’s use of force will not be deemed excessive merely because there might have been a less intrusive means of subduing the suspect.118 As noted in Forrester v. City of San Diego, “Police officers are not required to use the least intrusive degree of force possible. Rather, the inquiry is whether the force that was used to effect a particular seizure was reasonable.”119
Because the reasonableness of any use of force will ultimately depend on the severity or “quantum” of the force utilized by officers, the courts usually begin their analysis by determining whether the force was deadly, non-deadly, or insignificant.120
Non-deadly force
Force is deemed “non-deadly” if it does not create a substantial risk of causing death or serious bodily injury.121 To determine whether non-deadly force was reasonably necessary, the courts apply a balancing test in which they examine both the need for the force and its severity. And if need outweighs or is proportionate to the severity, the force will be deemed reasonable.122 Otherwise, it’s excessive. As the United States Supreme Court explained in Graham v. Connor:
Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.123
THE NEED FOR FORCE
The first issue in any use-offorce case is whether there was an objectively reasonable need for force. As the Ninth Circuit observed, “[I]t is the need for force which is at the heart of [the matter].”124 In most cases, the need will be based solely on the suspect’s physical resistance to arrest;125 e.g., the arrestee “spun away from [the arresting officer] and continued to struggle,”126 the arrestee “stiffened her arm and attempted to pull free.” 127
On the other hand, if the suspect was not resisting, there would be no need for any force, other than the de minimis variety. Thus, in Drummond v. City of Anaheim, the court ruled that an officer’s use of force was unreasonable because, “once Drummond was on the ground, he was not resisting the officers; there was therefore little or no need to use any further physical force.”128 Similarly, in Parker v. Gerrish the court observed, “In some circumstances, defiance and insolence might reasonably be seen as a factor which suggests a threat to the officer. But here [the suspect] was largely compliant and twice gave himself up for arrest to the officers.”129
Although force is seldom necessary if the arrestee was not presently resisting, there may be a need for it if the suspect had been actively resisting and, although he was not combative at the moment, he was not yet under the control of the arresting officers. This is especially true if there was probable cause to arrest him for a serious felony.130 For example, in ruling that officers did not use excessive force in pulling a bank robbery suspect from his getaway car, the court in Johnson v. County of Los Angeles noted that, even though the suspect was not “actively resisting arrest,” it is “very difficult to imagine that any police officer facing a moving, armed bank robbery suspect would have acted any differently—at least not without taking the very real risk of getting himself or others killed. The need to quickly restrain Johnson by removing him from the car and handcuffing him was paramount.”131
The need for force will increase substantially if the suspect’s resistance also constituted a serious and imminent threat to the safety officers or others.132 Thus, in Scott v. Harris, a vehicle pursuit case, the Supreme Court upheld the use of the PIT maneuver to end a high-speed chase because, said the court, “[I]t is clear from the videotape [of the pursuit] that [the suspect] posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase.”133 Similarly, in Miller v. Clark County, the court noted that Miller attempted “to flee from police by driving a car with a wanton or willful disregard for the lives of others.”134
PROPORTIONATE RESPONSE BY OFFICERS
Having established a need for some force, the courts will look to see whether the amount of force utilized was commensurate with that need.135 As the court explained in Lee v. Ferraro, “[T]he force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for the force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight.”136 For example, utilizing a control hold,137 pepper stray,138 “hard pulling,”139 or a trained police dog 140 will often be deemed reasonably necessary if officers were facing resistance that was moderate to severe.
TASERS
Although the shock caused by tasers is currently classified as non-deadly force,141 the courts are aware that it is quite painful and that the consequences are not always predictable. In fact, some people have died after being tased. As a result, some courts have classified tasers as “intermediate” force, which requires a demonstrably greater need than non-deadly force.142 As the court in Beaver v. City of Federal Way observed:
While the advent of the Taser has undeniably provided law enforcement officers with a useful tool to subdue suspects with a lessened minimal risk of harm to the suspect or the officer, it is equally undeniable that being “tased” is a painful experience. The model used by [the officer] delivers a full five-second cycle of electrical pulses of a maximum of 50,000 volts at very low amperage that interrupts a target’s motor system and causes involuntary muscle contraction.143
Still, tasing is often deemed justified when there was significant resistance, especially if officers had been unable to control the arrestee by other means. Thus, the Eleventh Circuit noted, “[I]n a difficult, tense and uncertain situation the use of a taser gun to subdue a suspect who has repeatedly ignored police instructions and continues to act belligerently toward police is not excessive force.”144
For example, in Draper v. Reynolds 145 the court ruled that the use of a taser to subdue a suspect was proportionate because, among other things, the suspect “was hostile, belligerent, and uncooperative. No less than five times, [the officer] asked [the suspect] to retrieve documents from the truck cab, and each time [the suspect] refused to comply. . . . [The suspect] used profanity, moved around and paced in agitation, and repeatedly yelled at [the officer].” Said the court, “Although being struck by a taser gun is an unpleasant experience, the amount of force [the officer] used—a single use of the taser gun causing a one-time shocking—was reasonably proportionate to the need for force and did not inflict any serious injury.”
Similarly, in Sanders v. City of Fresno 146 the court ruled that the use of a taser was reasonable because, among other things, the suspect “was agitated, did not obey the request to let [his wife] go, believed that the officers were there to kill him and/or take [his wife] away from him, appeared to be under the influence of drugs . . . ”
MENTALLY UNSTABLE ARRESTEES
It should be noted that an officer’s use of force will not be deemed excessive merely because the arrestee was mentally unstable. Still, it is a circumstance that should, when possible, be considered in deciding how to respond. As the Ninth Circuit observed:
The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense. In the former instance, increasing the use of force may, in some circumstances at least, exacerbate the situation . . . 147
Deadly force
In the past, deadly force was defined as action that was “reasonably likely to kill.”148 Now, however, it appears that most courts define it more broadly as action that “creates a substantial risk of causing death or serious bodily injury.”149
Under the Fourth Amendment, the test for determining whether deadly force was justified is essentially the same as the test for non-deadly force. I both cases, the use of force is lawful if it was reasonable under the circumstances.150 The obvious difference is that deadly force cannot be justified unless there was an especially urgent need for it. As the United States Supreme Court observed, “[N]otwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched.”151
The Court has acknowledged, however, that there is “no obvious way to quantify the risks on either side,” that there is no “magical on/off switch” for determining the point at which deadly force is justified,152 and that the test is “cast at a high level of generality.”153 Still, it has ruled that the use of deadly force can be justified under the Fourth Amendment only if the following circumstances existed:
RESISTING ARREST: The arrestee must have been fleeing or otherwise actively resisting arrest.
THREAT TO OFFICERS OR OTHERS: Officers must have had probable cause to believe that the arrestee posed a significant threat of death or serious physical injury to officers or others.154
WARNING: Officers must, “where feasible,” warn the arrestee that they are about to use deadly force.155
As the Court observed in Tennessee v. Garner, “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.”156
Although most threats that will justify deadly force pose an immediate threat to officers or others,157 in some cases an impending or imminent threat will suffice. Such a threat may exist if officers reasonably believed—based on the nature of the suspect’s crime, his state of mind, and any other relevant circumstances—that his escape would pose a severe threat of serious physical harm to the public. As the Supreme Court explained in Scott v. Harris, deadly force might be reasonably necessary “to prevent escape when the suspect is known to have committed a crime involving the infliction or threatened infliction of serious physical harm, so that his mere being at large poses an inherent danger to society.”158 (The Court in Garner ruled that a fleeing burglar did not present such a threat.159).
The use of deadly force will not, of course, be justified after the threat had been eliminated. For example, in Waterman v. Batton the Fourth Circuit ruled that, while officers were justified in firing at the driver of a car that was accelerating toward them, they were not justified in shooting him after he had passed by. Said the court, “[F]orce justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” 160
It should be noted that the test for determining whether deadly force was reasonable under the Fourth Amendment is essentially the same as the test for determining whether officers may be prosecuted for using deadly force that results in the death of a suspect. Specifically, Penal Code § 196 has been interpreted to mean that officers cannot be criminally liable if the suspect was actively resisting and, (1) “the felony for which the arrest is sought is a forcible and atrocious one which threatens death or serious bodily harm,” or (2) “there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or to another.”161
Searches Incident to Arrest
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