In short, state law is an important and relevant standard under which the use of force can be analyzed. We provide in this chapter an overview of when state law applies, what it applies to, and how it applies. The Appendix of State Laws, set out at the end of this book, provides the relevant statutory provisions and, when statutes are lacking, judicial opinions regarding the regulation of police uses of force in all fifty states.
When Does the State Law Standard Apply?
A plaintiff sues an officer, seeking monetary damages for a use of force that they allege was an intentional battery. The plaintiff dies of their injuries, and their estate files a wrongful death lawsuit. A local prosecutor brings the case to a grand jury to determine whether the officer committed a crime. The state Police Officer Standards and Training Commission opens an investigation to determine whether the officer’s actions merit decertification. In each case, the officer’s actions will be analyzed under state law.
Criminal Law
Officers, like anyone else, can be prosecuted for committing a crime if they engage in behavior that state law identifies as criminal. In most contexts, criminal cases start with a civilian complaint about, or an officer’s firsthand observations of, suspected unlawful conduct. Police personnel will typically investigate and, if they develop probable cause to believe that a crime has occurred, make an arrest. After arrest, criminal cases are generally referred to the local prosecutor’s office. A prosecutor reviews the existing information, sometimes works with officers to conduct additional investigation, and ultimately determines whether to pursue charges.
When the subject of the investigation is a police officer, however, different procedures might apply. In some jurisdictions, the agency that employs the officer will conduct the criminal investigation; in others, the agency may voluntarily request or be required to accept an external investigation. The local prosecutors’ offices may be significantly more involved in the investigation than they are in most criminal cases. The prosecutor may decide to handle the case in-house, or the close working relationship between the local prosecutor and the police agency may lead the prosecutor to refer the case to the state attorney general or to a “special prosecutor” or an “independent prosecutor” to avoid the appearance of a conflict of interest. Concerns about potential conflicts and the potential appearance of conflicts has led some states to strip local prosecutors of their discretion to handle certain police use-of-force cases. In 2015, for example, New York Governor Andrew Cuomo issued Executive Order No. 147, appointing the state attorney general as the special prosecutor tasked with handling cases involving the use of lethal force by police officers “where, in [the attorney general’s opinion], there is a significant question as to whether the civilian was armed and dangerous at the time of his or her death.”2
The prosecutor can, depending on state law, either charge someone with a crime by filing an “information” or a “complaint” with the court (a process sometimes called “direct filing” or “charging by information”) or by presenting the case to a grand jury. By rule or practice, some prosecutors’ offices make it a habit to present all police shootings or serious uses of force to a grand jury, although that practice has been criticized because of the secretive nature of the grand jury process and the potential for grand juries to be used to insulate the prosecutor from political backlash. When the prosecutor direct-files a case or when the grand jury believes that there is at least probable cause to believe that an individual committed a crime and returns an indictment (technically a “true bill of indictment”), the officer formally becomes a criminal defendant and the prosecution can proceed.
After charging or indictment, the prosecutor typically engages in plea negotiations with the defendant or the defendant’s attorney. The vast majority of criminal cases—at least 90 percent—are disposed of via plea deals;3 the defendant either pleads guilty or nolo contendere,4 often in exchange for less severe charges or a reduced sentence. If a case does not result in a plea deal, the case goes to trial. Criminal cases are typically tried before a jury (the “petit jury,” as distinct from the “grand jury”), although a defendant can typically waive their right to a jury trial and have the case heard by a judge (a “bench trial”). State criminal law cases can only be heard by state courts, just as federal criminal law cases can only be heard by federal courts.
Although it is not uncommon for officers to be prosecuted for a variety of criminal acts—public corruption, sexual assault, and the like—they are only rarely prosecuted for duty-related uses of force. Bowling Green University criminologist Phil Stinson has collected extensive data on officers arrested, which reflects the fact that 7,518 state and local officers were arrested a total of 9,088 times between 2005 and 2013.5 Of those, just shy of 1,600 arrests were for violent crimes:
1,364 officers were arrested for an assaultive crime
807 officers were arrested for aggravated or simple assault
557 officers were arrested for intimidation
234 officers were arrested for a homicide offense
152 officers were arrested for murder or nonnegligent manslaughter
82 officers were arrested for negligent manslaughter
The vast majority of those officers were arrested for violent acts that they took in their individual capacity rather than their official capacity, even defining “official capacity” broadly.6 Officers are only very rarely arrested and prosecuted for duty-related uses of force. In Arizona between 2011 and 2018, for example, local prosecutors reviewed 523 officer-involved shootings, with another seventy-one shootings pending review, and prosecuted only one officer.
There are at least two interrelated reasons for the low rate of prosecutions. First, it is likely that most uses of force simply do not meet the criteria for a criminal act. Several studies have found that the single strongest predictor that an officer will use force is resistance, especially forceful resistance, by the subject.7 As we will explain in detail below, state law typically authorizes officers to use force when and to the extent it reasonably appears necessary to overcome resistance, so the use of force under such circumstances is not necessarily criminal.
Second, even when a use of force may be a criminal act, proving beyond a reasonable doubt that the officer’s actions exceeded the scope of what state law authorized—a question to which we return later in this chapter—can be a Herculean task. In part, that is because the use of force is unlike other acts for which an officer may be arrested. When an officer takes a bribe, for example, they are clearly acting outside the scope of their duties (except in truly exceptional circumstances). The same thing is true when an officer lies under oath or keeps seized money or drugs for themselves instead of properly impounding them. Such actions are inherently criminal; if a prosecutor can establish that the officer engaged in the underlying act, conviction should follow as a matter of course. Violence, in contrast, is a legitimate tool that officers can and do use in the course of their work. In light of the potential difficulty of distinguishing lawful from unlawful actions, prosecutors’ ethical obligations to refrain from bringing charges unless the evidence both establishes probable cause8 and is capable of proving guilt beyond a reasonable doubt9 may dramatically restrict the likelihood of a prosecution in borderline cases.
The interplay between these two reasons means that criminal charges for duty-related violence remains the rare exception, even for the most committed prosecutors’ offices. Additional reasons—including, for example, the manner in which police uses of force are typically