Evaluating Police Uses of Force. Seth W. Stoughton

target="_blank" rel="nofollow" href="#litres_trial_promo">66 for example, while Nevada followed a slightly different tack by adopting the Supreme Court’s rejection of the fleeing-felon rule.67

      Nine other states have referenced constitutional law in a case applying state law: Arizona,68 California (in reference to an earlier version of state law),69 Delaware,70 Florida,71 Kentucky,72 Maryland,73 Minnesota,74 South Carolina,75 and West Virginia.76 A number of the states that have referenced Fourth Amendment jurisprudence have not done so in the context of evaluating a use of deadly force, though. Instead, their focus in on a distinct aspect of Garner or Harris. The Delaware Supreme Court, for example, discussed the Garner Court’s conclusion that burglary was not a serious offense, ultimately disagreeing.77 An Arizona appellate court relied on Tennessee v. Garner (in a footnote) for a different reason. The plaintiff in that case had argued that the officer could not invoke a state statute authorizing the use of force to effectuate an arrest because the officer was not “effectuating an arrest” at the time. Although concluding that the issue was not properly raised on appeal, the court noted that Garner had identified that the use of deadly force was a seizure, and therefore asserted that an officer who had used deadly force was necessarily seeking to effectuate an arrest.78

      Thirty-two states, a significant majority, have simply not referenced constitutional law when interpreting or applying state law in the context of deadly force: Alabama, Alaska, Arkansas, Connecticut, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin.

      Police-Specific Authorizations and Justification Defenses

      Each state has its own statutes and common law doctrines that authorize officers to use force or protect officers from civil or criminal liability for doing so. Forty-two states regulate police uses of force by statute; thirty-six states have statutes that govern the use of both deadly and nondeadly force, while six states have statutes only for deadly force. The remaining eight states lack statutes to regulate police uses of force, doing so entirely through judicial decisions.

      The forty-two states in which statutory law regulates at least some uses of force have a total of fifty-eight different statutes, with the earliest originally enacted in 1787 (Vermont), 1872 (California), 1858 (Tennessee), and 1863 (Georgia). Almost half of the statutes (twenty-eight, or 48 percent) were originally enacted in the 1970s; of the others, twenty (35 percent) were adopted prior to the 1970s and the remaining ten (17 percent) were enacted since 1970. The various states have taken very different approaches to amending these statutes. California’s “justifiable homicide” law, for example, went unamended for almost 150 years—from the time it was enacted in 1872 until its amendment in 2019—while Georgia’s law has been re-codified and amended some fifteen times since its original enactment in 1863. Of the fifty-eight total statutes, fifteen have never been amended, twenty-two have been amended only once, twelve have been amended two or three times, and nine have been amended more than three times.

      In this subsection, we discuss several notable features of state law, focusing primarily but not exclusively on statutory law. We first explore the state statutes that set out the justifications for and limits of less-lethal force, then turn our attention to state statutes governing deadly force. In the Appendix of State Laws, we reproduce the text of state statutes and, when statutes are lacking, provide relevant quotations from judicial opinions regarding the regulation of police uses of force in all fifty states.

      The Relevance of Assertive and Defensive Force: Applicability of Other State Laws

      When applying state law to evaluate an officer’s use of force, the characterization of that force as assertive or defensive is a relevant consideration. Assertive force refers to actions taken against a subject who is noncompliant or resisting, but whose resistance does not threaten the physical safety of the officer or others. Assertive force refers to situations in which an officer initiates violent action (typically as a response to a subject’s failure to comply with orders or with nonviolent resistance). Defensive force, in contrast, refers to actions taken against a subject who has initiated violence by physically threatening the officer or others.