As that brief discussion suggests, the standards themselves are distinct, but they are all perfectly valid. They are not, however, perfectly interchangeable. The standards are context dependent. That is, the standard that we apply depends on the question that we are seeking to answer and the remedy that we may impose. Let us return to the grand jury in the Michael Brown shooting; should the prosecutors have instructed the jurors about the state standard or about the constitutional standard? The most obvious answer, one given by a number of legal scholars and other pundits at the time, is that the prosecutors should have instructed the jury about the constitutional standard. The Constitution sets the minimum level of protection, after all, so to the extent that state law purports to authorize the use of force in situations in which it would be constitutionally prohibited, it would appear that the state law was invalidated. That answer may be obvious, but it is also incorrect. The grand jury was called upon to determine whether there was probable cause to believe that, under state law, the officer’s actions were criminal. In that context, the constitutionality of the officer’s actions is irrelevant. It may be counterintuitive, but a state is not required to criminalize an unconstitutional use of force (nor, for that matter, is a state prohibited from criminalizing constitutional uses of force).
Understanding the evaluation of police uses of force, then, requires one to appreciate that any given use of force is subject to different evaluative standards. The first step in evaluating an incident is to identify which standard is being applied, what behavior that standard regulates, and how that standard regulates the use of force. The chapters in part I of this book provide a comprehensive look at those issues, with each one dedicated to a discussion of a particular standard. Chapter 1 provides a detailed roadmap of the constitutional standard that applies most frequently in federal court. Chapter 2 outlines the state law standard that applies to both civil and criminal claims. Chapter 3 explores the administrative standards that individual police agencies create through policy, procedure, and training. Chapter 4 is dedicated to a discussion of community expectations, which are less formal, but no less important for evaluating use-of-force incidents.
1
The Constitutional Law Standard
Police officers, like all government officials, are subject to the limitations imposed by the Constitution of the United States. The body of the Constitution largely sets out the structure of government: Articles I, II, and III lay out the framework for the legislative branch, the executive branch, and the judicial branch, respectively. Article IV explicates the requirements for state governments. Article V sets out the procedures by which the Constitution can be amended. Article VI establishes the Constitution as “the supreme Law of the Land.” Finally, Article VII governs ratification of the Constitution.
The Constitution was first ratified in Delaware, on December 7, 1787, and, pursuant to Article VII, took effect on June 21, 1788, when New Hampshire became the ninth state to ratify it. Since it was first proposed and ratified, the Constitution has been amended twenty-seven times. The first twelve amendments, which include the ten amendments known as the Bill of Rights, were adopted on September 25, 1789, and were instrumental in convincing several colonies to ratify the Constitution and become states.
The Constitution, particularly the Bill of Rights and subsequent amendments, is centrally concerned with public and personal freedoms, which it protects by recognizing what one federal court referred to as “negative rather than positive liberties.”1 In short, the Constitution protects individual rights by limiting the ways the government can infringe on them, but generally does not lay out affirmative obligations that government officials must meet.2
Prior to 1989, there was no clearly defined constitutional standard under which the use of force was analyzed. Federal courts took different approaches, evaluating claims that officers’ uses of force violated constitutional rights by applying the Fourth Amendment’s prohibition of unreasonable seizures, the Eighth Amendment’s prohibition on cruel and unusual punishment, and the Fifth and Fourteenth Amendments’ prohibition on deprivations of liberty without due process of law. In 1985, the Supreme Court applied the Fourth Amendment in the context of a police shooting,3 and, in 1989, the Court settled the issue by holding that the use of force against “free citizens”—that is, individuals other than incarcerated inmates—was to be analyzed under the Fourth Amendment.4
As it relates to police uses of force, the relevant text of the Fourth Amendment reads as follows: “The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated.” In the body of this chapter, we will examine when this standard applies, what it applies to, and how it applies.
When Does the Constitutional Standard Apply?
The constitutional standard applies in at least three different ways: in civil litigation filed by a private plaintiff (or a class of plaintiffs) against an officer or agency; in civil litigation filed by the Department of Justice against an agency; and in federal criminal prosecutions against individual officers. Consider the following examples: A plaintiff files a lawsuit in federal court, alleging that an officer used excessive force in the course of making an arrest. A federal prosecutor files criminal charges against a police officer, alleging that the officer’s use of force during the arrest constituted a crime. Attorneys in the Civil Rights Division of the US Department of Justice file a lawsuit alleging that officers at the police department have engaged in a pattern and practice of violating constitutional rights by using excessive force. In each case, the investigators, lawyers, judges, and jurors will be called upon to assess the use of force by applying the constitutional standard.
Civil “Excessive Force” Litigation under 42 U.S.C. § 1983 and Bivens
When an officer uses force against an individual, the subject can file a lawsuit alleging that the officer violated the Fourth Amendment. The Fourth Amendment itself sets out the substantive right to be free from unreasonable seizures, but it does not provide what is known as a “cause of action”—the basis of the legal argument that a plaintiff makes when filing a lawsuit. Instead, federal civil lawsuits are authorized by a federal statute and a Supreme Court case.
The federal statute, 18 U.S.C. § 1983, states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]
That statute applies to state and local officials, including police officers, but not to federal officials. A Supreme Court case, Bivens v. Six Unknown, Named Agents of Federal Bureau of Narcotics,5 held that federal officers were similarly subject to liability for constitutional violations, including Fourth Amendment violations. A complete discussion of the fascinating history and many nuances of § 1983 and Bivens is beyond the scope of this book. For our purposes, it suffices to say that, together, they potentially render liable any police officer who uses or abuses their authority in ways that violate an individual’s constitutional