How Reasonable Is the Reasonable Man?: Police and Excessive Force
Alpert, Geoffrey P., Smith, William C., Journal of Criminal Law and Criminology
The authority of the police to use force represents one of the most misunderstood powers granted to representatives of government. Police officers are authorized to use both psychological and physical force to apprehend criminals and solve crimes.(1) This Article focuses on issues of physical force. After a brief introduction and a review of current legal issues in the use of force, this Article presents an assessment of current police policy development. After establishing the fundamental foundation for the use of force, the Article discusses 'reasonableness' and the unrealistic expectation which is placed on police to understand, interpret, and follow vague 'reasonableness' guidelines. Until the expectations and limitations on the use of force are clarified, in behavioral terms, police officers will be required to adhere to the vague standards of the "reasonable person."
The United States Civil Rights Commission reviewed police use of force in the early 1980s and reported:
Police officers possess awesome powers. They perform their duties
under hazardous conditions and with the vigilant public eye upon them.
Police officers are permitted only a margin of error in judgment under
conditions that impose high degrees of physical and mental stress.
Their general responsibility to preserve peace and enforce the law carries
with it the power to arrest and to use force--even deadly force.(2) The Commission Report discussed the need for scrutiny of the police and the need for reform.(3) Unfortunately, no one attempted to define excessive force or explain situations that went beyond the necessary force needed to achieve the police mission.
This lack of definition has created an unfortunate situation for both the police and the public. One possible consequence of this deficiency is the lack of national and state-wide statistics on police use of force or excessive force. The shortage of comprehensive statistical information on police use of force has been explained by police officials:(4)
[A]gencies did not require reports of their use [of force] from their
officers. The categories of force for which such reporting as most likely
to be mandated were those with the most potential for death or serious
bodily harm, such as shootings.... A majority of the agencies within
each type reported that they reviewed all use of force reports. The remaining
departments either reviewed selected reports or reported that
they did not review these reports at all.
One of the best estimates of excessive force incidents was reported in a Gallup poll taken in March, 1991. The critical question asked to a sample of citizens was: "Have you ever been physically mistreated or abused by the police?" Some members of the sample may have interpreted "mistreated or abused" as a perilous attack, and, as a result, responded in the negative, even if they felt that they had been psychologically mistreated or abused, but not violently attacked. Incredibly, 5% of all respondents and 9% of non-whites said that they had been mistreated or abused by police. When asked if the respondent knew anyone who had been physically mistreated or abused by the police, 20% said that they did.(5) Estimates of excessive force from observational studies range from 1.05% to 5.1% of citizen contacts.(6) Amazingly, several studies revealed that one-third of all use of force incidents could be classified as excessive.(7) There is no doubt that police use physical force and that it is frequently perceived as excessive. Understandably, however, the police claim that excessive force is employed less often than observers or citizens report.8 The targets of police abuse are almost always lower class males, and the most common factor associated with abuse is disrespect shown to the police by these suspects.(9)