Column: Police Use of Force, the Constitution and the New NYPD Policy (New York Law Journal)

By Christopher Dunn

In the two years since Eric Garner was choked to death by an NYPD officer on Staten Island, the country has been embroiled in a heated debate about police officer killings of black civilians and, with the recent deaths of officers in Dallas and Baton Rouge, about civilian killings of police officers. While concerns about racism and retribution are at the heart of that debate, the series of civilian deaths at the hands of police officers has also focused attention on the legal and policy standards governing police use of force.

Across the country, all police use of force is subject to federal constitutional restrictions, most significantly Fourth Amendment standards. Those standards, however, are quite vague, which leaves police departments with a particularly important role in establishing rules for police use of force. Earlier this summer, the NYPD – the nation’s largest and most influential police department – rolled out new use-of-force policies that have received precious little scrutiny. In light of the ongoing debate about police use of force, it is worth revisiting the constitutional standards and examining the new NYPD policies.

The Federal Constitution and Force

Two Supreme Court cases from the 1980s establish the federal constitutional standards governing police use of force. Most broadly, Graham v. O’Connor, 490 U.S. 386 (1989), sets out the standards for non-lethal force by officers engaged in enforcement activity on the street. There, a police officer’s observation of a man rushing into and out of a store led to serious injuries to the man before officers realized he was a diabetic suffering from an insulin reaction. When the man’s case seeking damages reached the Supreme Court, the Court rejected the argument that the Fourth Amendment had nothing to say about how an otherwise lawful arrest was effected and held instead that force used in “an arrest or investigatory stop of a free citizen” is subject to the prohibition against unreasonable seizures. The Court then articulated the following standards:

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.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.

Four years before Graham’s ruling on non-lethal force, the Court had addressed the more specific issue of police use of deadly physical force in Tennessee v. Garner, 471 U.S. 1 (1985). There, an officer had shot and killed an unarmed teenager fleeing from a home he had burglarized. Tennessee law and the officer’s department policy authorized shooting the teen, but the Supreme Court held it violated the Fourth Amendment:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. 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 [however,] 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.

Thus, under Graham non-lethal force may be used only if reasonable given the circumstances facing the officer at the time and as measured by an objective standard of reasonableness, with the officer’s subjective assessment of those circumstances or the officer’s subjective motive playing no role in the analysis. And under Garner, deadly physical force cannot be used unless the suspect poses a serious threat of serious physical harm to the officer or others, which may arise from the officer being threatened by an armed suspect or from a suspect having committed a violent crime. Conspicuously absent from these broad doctrinal standards, however, are the specifics needed to guide officer use of force on the street. When is it permissible to strike a suspect with a baton? Can an officer use a chokehold to arrest someone accused of a minor offense? When can a Taser be used? How many times can an officer fire at a person? This is where police policies and training must fill the gap. It also is important to understand that the Fourth Amendment represents only an outer limit on police use of force. States, localities, and police departments remain free to adopt laws and policies that restrict police force beyond the Constitution’s minimum standards.

The New NYPD Force Policies

Remarkably, the NYPD’s use-of-force policies have been skeletal and scattered. Most notably, its long-standing policy on non-lethal force, beyond barring chokeholds and one form of handcuffing, provided only the following standard to the NYPD’s 35,000 officers: “Only that amount of force necessary to overcome resistance will be used to effect an arrest or take a mentally ill or emotionally disturbed person into custody.” And the NYPD has had no system for collecting and analyzing information about officer use of non-lethal force, which means it had no way to systematically assess its officers’ use of force. As for deadly physical force, the NYPD’s policy largely repeated the Garner doctrinal standard: “Police officers shall not use deadly physical force against another person unless they have probable cause to believe they must protect themselves or another person present from imminent death or serious physical injury.” (That the person had to be “present” went beyond Garner.) The policy provided officers with little specific guidance about how to apply this standard to street encounters and was silent about the use of deadly physical force that did not involve a firearm.

On June 1, after a lengthy internal review, the NYPD instituted a revamped set of force policies now organized into 24 sections of one part of its policy guide. According to a pamphlet the NYPD issued with the new policies, “There has been no change . . . in when police officers can or cannot use force” (though a footnote to this statement identifies three narrow situations where changes were made). The new policies, however, are significant in several respects. Starting with non-lethal force, officers now must first, “[w]hen appropriate and consistent with personal safety” use “de-escalation techniques to reduce or eliminate the necessity of use of force,” with the policy spelling out details for deploying those techniques. It then authorizes “only the use of force necessary to gain control or custody of the subject” – as compared to the prior standard of allowing force necessary “to overcome resistance” -- and lists eleven different factors officers should consider in determining how much force is necessary in any particular incident. Finally, it requires for the first time that officers who observe excessive force must report that. As for deadly physical force, the prior separate policy has largely been imported into the new general force policy, but the NYPD has removed the requirement that a civilian being protected be “present”: “The use of deadly physical force against a person can only be used to protect [a police officer] and/or member of the public from imminent serious physical injury or death.”

The new policy continues to treat firearms discharges as the only form of deadly physical force and provides no additional details about the circumstances in which lethal force may or may not be used. The most important development, however, lies the introduction of a reporting system. Officers will be required to document most instances of force and will do so on a separate force reporting form, the contents of which will be entered into a centralized database. As the NYPD acknowledged in the pamphlet that accompanied the policies, this system “will, for the first time, accurately capture how often and in which circumstances officers use force and how often and in what circumstances it is used against them.”

Looking Forward

The NYPD’s new use-of-force policies are extensive and detailed, but even this cursory examination reveals they only modestly fill the constitutional vacuum. Nonetheless, the introduction of comprehensive data collection is important, and the public soon should have a much better sense of the extent to which excessive force is a problem in the NYPD and of the extent to which further training, policy reform, and disciplinary action are needed.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at cdunn@nyclu.org.