Evaluating Police Uses of Force. Seth W. Stoughton
relies on and works closely with; the political fallout that can accompany the prosecution of a police officer; prosecutors’ lack of familiarity with the subject matter (police tactics and techniques); and the longstanding observation that juries are reluctant to convict officers even in fairly egregious cases—also play a significant role in limiting the number of officers prosecuted for duty-related uses of force.
In short, the state criminal law standard applies to internal or external use-of-force investigations, to a prosecutor’s decision to file charges or present the case to a grand jury, to a grand jury’s decision to indict, to plea negotiations, and to the ultimate conclusion drawn by a judge or jury.
Civil (Tort) Law
Imagine a car crash. Vehicle 1 crashes into Vehicle 2, which was sitting stationary at a red light. The driver of Vehicle 2 sues the driver of Vehicle 1, demanding compensation for their personal injuries and damaged property. That lawsuit is civil, not criminal; it is brought by a private plaintiff, not by a prosecutor, and the goal is to compensate the victim for the harms they’ve suffered, not to criminally convict the at-fault driver. The driver of Vehicle 2 can file a civil lawsuit regardless of whether the driver of Vehicle 1 is criminally prosecuted. That civil lawsuit does not allege any breach of contract or, indeed, any pre-existing relationship between the drivers of Vehicle 1 and Vehicle 2. Instead, the underlying claim in the lawsuit is that the driver of Vehicle 1 has committed a “tort” (alternatively, a “tortious act”). According to Black’s Law Dictionary, “tort” is used “to denote a wrong or wrongful act, for which an action will lie [that is, for which someone may sue], as distinguished from a contract.”
State tort suits against police officers are civil allegations of wrongdoing, typically filed for the purpose of obtaining money damages as compensatory relief. Confusingly, issues of state tort law can come up in both state and federal courts. A litigant can file a lawsuit in federal court that alleges that a local police officer violated both state and federal law. If a litigant files a lawsuit in state court that lays out a claim under federal law—such as a violation of 42 U.S.C § 1983, discussed in chapter 1—the defendant officer can “remove” the case to federal court, bringing any state law claims along with it.10 When a litigant sues a federal agent in state court alleging violations of state law, the federal agent can similarly remove the case to federal court.11 Under either of the last two scenarios, the federal court will preside over both the federal and state law claims. Regardless of whether the case is heard before a federal or state judge, though, the court will rely on state law, including existing state precedent, to analyze the state law claims.
Regulatory Law
Like doctors, lawyers, and cosmetologists, police officers are, in most states, required to earn and maintain a state-issued certification (some states use the term “license”). According to Roger Goldman, the country’s leading expert on police certification regimes, most states require most officers to be certified. State certifications are typically issued by a Police Officer Standards and Training Commission (a “POST Commission”) or a Criminal Justice Standards and Training Commission (a “CJSTC”), although a few states, including Massachusetts and New York, do not have such commissions. With the exception of California and Rhode Island, all of the states that have a POST Commission—as well as New York, which does not—can revoke an officer’s state certification for an officer’s on-duty behavior, although when they can do so depends on the idiosyncrasies of state law.
As of 2018, every state now also sets minimum training standards for officers. Typically, state statutes do not set out specific requirements, instead delegating that responsibility to the POST Commission or CJSTC. Some states, however, have adopted specific training requirements as a matter of statute. In 2018, voters in Washington state approved Initiative 940, which amended state law by requiring “violence de-escalation training”12 and “mental health training,”13 both of which must be provided in an officer’s first fifteen months of employment and periodically over the course of their careers. The exact content of that training was left to the state POST Commission, which, by statute, must “consult with law enforcement agencies and community stakeholders” and consider a range of what the legislature determined were relevant factors, including “[d]e-escalation in patrol tactics and interpersonal communication training, including tactical methods that use time, distance, cover, and concealment, to avoid escalating situations that lead to violence” and “[a]lternatives to the use of physical or deadly force so that deadly force is used only when unavoidable and as a last resort.”14
Directly or indirectly, state law regulates police training—potentially including training on tactics and the use of force—as well as certification and decertification. Clearly, then, the state law standard that can be used to evaluate an officer’s use of force can have regulatory ramifications.
What Does the State Law Standard Regulate?
While it is fairly clear that the Fourth Amendment regulates the use of force when that force amounts to a seizure, the state law standard is more complicated. Indeed, it would be more accurate to discuss the variety of state law standards because, unlike the solitary concept of “seizure,” there is no one definition or single answer to the question of what state law regulates. State law may be best understood as regulating the infliction of various harms caused by the commission of different types of wrongdoing, potentially including the use of force. Understanding the scope of how state law regulates the use of force requires understanding how state law regulates criminal and tortious acts.
Criminal Law
What we commonly refer to as a “crime” is, in somewhat technical terms, the commission of a certain action or actions that, when performed under certain circumstances or when they result in certain consequences, have been identified as criminal. Criminal statutes identify the behaviors, circumstances, and consequences that are the “elements” of a crime: a crime is committed when all of the elements are satisfied.
Consider, for example, South Carolina Code § 16-4-600(E)(1), which states, in part, “A person commits the offense of assault and battery in the third degree if the person unlawfully injures another person. . . .” Parsing that clause into its constituent parts, we see that assault and battery in the third degree consists of three elements: it is a crime for someone to (1) unlawfully (2) injure (3) another person. If any of those three elements are lacking, then the crime of assault and battery has not been committed. If, for example, an individual unlawfully injures a toaster, they have not committed the crime of assault and battery because the third element—“another person”—is not satisfied (although they may have committed a crime other than assault and battery).
As that brief summary of statutory elements suggests, state criminal law regulates a range of behaviors, prescribing punishment for a variety of social harms. Providing a complete list of relevant behaviors is outside the scope of this book, especially given the potential for the criminal law to vary significantly from state to state. Nevertheless, we can offer some general guidance as to the behaviors that are both common in use-of-force situations and are commonly regulated by state criminal law.
Assault: threatening or attempting to physically touch someone else against their will;
Aggravated assault: making threats of physical harm with a weapon or in circumstances that suggest particularly severe harm;
Battery: touching or striking someone else against their will, offensive touching, or causing actual bodily injury;
Aggravated battery: causing serious injury or causing injury to particularly vulnerable victims such as children or the elderly;
Murder: the intentional killing of a human being in cold blood (often referred to as an “intentional”