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Police Use of Force

November 01, 2020

Police use of force is often misunderstood. The chief limitation on police use of force is found in the Fourth Amendment to the U.S. Constitution. Other rules governing an officer’s use of force can be found in police department policies and rules. By knowing these rules and limitations, you can better understand what type of force an officer can potentially use against you.

The purpose of this post is to provide you with a basic understanding of how an officer may decide what level of force to use with you, if there is any force at all. Knowing this information will hopefully guide you in avoiding or minimizing any force from the officer. It can help you in your case to determine if you may be a victim of police brutality.

This is not about providing you with talking or arguing points when you’re dealing with a police officer.  The last thing you want to do is argue with a police officer about his legal obligations.

Your goal when dealing with the police is to minimize the use of force against you, and maximize your future legal rights. And the best way to do that is by remaining calm and compliant with the police.

Constitutional Restrictions for Police Use of Force

The primary source of authority governing a police officer’s allowable use of force is the United States Constitution. Specifically, the Fourth Amendment bans “unreasonable searches and seizures”. An officer’s use of force on a civilian is considered a “seizure” within the meaning of the Fourth Amendment.

The Fourth Amendment of the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But regardless of whether we’re talking about the U.S. Constitution, state or federal laws, or police department policy, the first thing to know is that an officer’s allowable use of force is based on the actions of the actions of the civilian he’s dealing with (known in police lingo as the “subject”). The more threatening or hostile the subject’s actions, the greater force the officer is allowed to use.

Reasonably Necessary Force

Under the Fourth Amendment, an officer’s use of force must be reasonably necessary to make the arrest. That means it must be reasonable under the what the courts refer to as “the totality of the circumstances.”

The level of force that constitutes “reasonable” force depends on the specific circumstances of the arrest. This involves many factors, including the severity of the alleged crime, the threat posed to the officers, and whether the suspect is trying to resist or flee.

Each case is analyzed on its facts. But here’s the bottom line: the less you cooperate, the more you resist, the greater the force the officer can (and probably will) use against you.

For instance, an officer cannot use “significant” force on a subject who is only passively resisting. But once the subject starts actively resisting, an officer can use significant (i.e. painful) force. The definitions of passive and active resistors are discussed in the next section.

NOTE: There is a very fine line between actively resisting (i.e. physically struggling with the officer) and assault or battery of a police officer. If you strike an officer, even accidentally, while you resist arrest, the police will consider that an attack on the officer. They will use greater force on you. You will also likely be charged with aggravated battery of a police officer — a felony.   

Use of Deadly Force Under the U.S. Constitution

An officer may use deadly force when a reasonable officer, under the same circumstances, would believe that the suspect’s actions placed him or others in the immediate vicinity in imminent danger of death or serious bodily harm. It is not necessary that this danger actually existed.

In other words, if the officer mistakenly but reasonably believes the subject’s actions place the officer or someone else is in imminent danger of death or great bodily harm, he may be justified in shooting the subject.

For instance, if the subject points an unloaded gun at an officer, the officer has no way of knowing the gun is unloaded.  Depending on the circumstances, he may be justified in using deadly force against the subject.

An officer is not required to use all practical alternatives to avoid a situation where deadly force is justified. So, if the subject points a gun at an officer, the officer is not required to use pepper spray, a baton, or his taser before resorting to deadly force. 

An officer is also allowed to use deadly force on a suspect in order to prevent that suspect’s escape, only “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”. Tennessee v. Garner, 471 U.S. 1 (1985).

Police Department Policies on Police Use of Force

Each police department has its own set of policies detailing what its officers can do in terms of using force. These policies may be more restrictive than constitutional requirements, but may not be less restrictive. The following is a basic outline of the different police classifications of subjects based on the subject’s actions. Each increase in the subject’s behavior allows the officer to use greater force.

This is designed to give you a general idea, but is not an authoritative guide on all departments’ policies. These are not rules or laws, and different police departments will have different policies. If you’re interested in the Chicago Police Department’s use of force policy, you can see it here.

Subject Category  Subject’s Actions
COOPERATIVE SUBJECTFully compliant, follows all orders and direction by the officer. Does not resist, evade, or attempt to flee. This is by far the safest option. There is no legal justification for ANY use of force on a fully cooperative subject.  
PASSIVE RESISTERNot obeying commands. For instance, the subject refuses to put his hands behind his back, or refuses to exit the car when ordered to do so.  
ACTIVE RESISTERThe subject actively and affirmatively resists the officer’s attempts to arrest him. For instance, the subject tenses his body so he can’t be handcuffed, physically struggles, pushes the officer, or attempts to flee from the police.   
NON-LETHAL ASSAILANTMovement toward the officer that may cause injury but is not likely to cause death or great bodily harm. For instance, kicking or shoving an officer.
LETHAL ASSAILANTAttacking or threatening to attack the officer in a way that is likely to cause the officer death or great bodily harm. For instance, approaching the officer with a knife, a gun, or a blunt object like a baseball bat.

Illinois Police Use of Force Rules

Illinois law regarding police use of force is very similar to the requirements of the Constitution.

Under Illinois law, an officer is justified in the use of any force which he reasonably believes to be necessary to make an arrest, and any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest.

However, an officer is justified in using deadly force only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or others.

Under very limited circumstances, an officer may be justified in using deadly force to stop the escape of a suspect when the officer reasonably believes that:

(1) deadly force is necessary to prevent the arrest from being defeated by resistance or escape; and
(2) The person to be arrested has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.

Even if you don’t remember all of the use of force rules, remember this: it’s always best to stay calm and comply with an officer’s orders. This will minimize an officer’s use of force and to protect your legal rights going forward. And attempting to flee is never a good idea.

Conclusion – Understanding Police Use of Force

Police use of force has limitations. An officer must use reasonable force under the specific circumstances of each encounter. Officers can only use force that is reasonable based on a suspect’s actions.

Complying with the police does not guarantee that you won’t be the victim of police brutality or excessive force. But it is your best shot at staying safe and maintaining your legal rights.

If you believe an officer has used unreasonable force (i.e. excessive force) against you or someone you know, or if you believe that you or someone you know has been the victim of false arrest or other civil rights violation, contact Chicago civil rights attorney Jordan Marsh for a free consultation at (312) 401-5510, or by email at jordan@jmarshlaw.com.

The information provided on this website does not, and is not intended to,
constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Use of and access to this website or any of the links contained within the site do not create an attorney-client relationship between you and our office.

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