As surprising it as it may seem, law enforcement use of force does not become “excessive” merely because an individual is seriously injured, or even killed, by that force. Instead, the legal analysis looks to a cluster of circumstances that describe the context in which the force is used.

Under Graham v. Connor, 490 U.S. 386 (1989), courts look to several factors in deciding whether a particular use of force is “excessive.” Those factors are

(1) the severity of the crime being investigated,

(2) whether the suspect poses an immediate threat to officers or others, and

(3) whether the suspect is actively resisting arrest or attempting to flee.

In short, the “excessive force” analysis is a sliding scale, with more serious or risky situations generally justifying a faster, more dramatic use of force. On the other hand, the law — at least in the Ninth Circuit — is clear that when there is no call for the use of force, any use of force, even relatively minimal force, is “excessive.” See, for example, Headwaters Forest Defense v. County of Humbolt, 240 F.3d 1185, 1199 (9th Cir. 2000) and Lolli v. County of Orange 351 F.3d 410, 417 (9th Cir. 2003).

In the wake of a use of force by law enforcement, agencies whose officers have used force frequently put out press releases emphasizing whatever facts supported the officers’ action. However, it is often the case that that information is incomplete or misleading. Since the “excessive” quality of force depends on the facts, an informed assessment of whether force was “excessive” requires an aggressive effort to learn all the facts — not simply the facts that law enforcement agencies wish to highlight.

The Law Office of Alex Coolman