Legal Rules Governing the Degree of Force Used in an Arrest

I. Introduction

Recently, aggressive police efforts to effectuate arrests have made headlines.[1] Some of these attempted arrests involved a level of force that resulted in the death of the suspect.[2] These tragic deaths are made even more controversial when the officers involved are either acquitted or never even charged with a crime. [3] Understanding the law a grand jury or prosecutor uses to determine whether the force was excessive or not can help citizens make sense of a legal system that, to some, seems to let police officers get away with murder. [4]

II. Legal Rules Governing the Degree of Force Used in an Arrest

The Fourth Amendment prohibits “unreasonable searches and seizures.”[5] Because the use of force to make an arrest is a seizure under the Fourth Amendment, the use of such force cannot be unreasonable.[6] The Supreme Court’s precedential rulings on reasonableness can be found in three key cases: Graham v. Conner,[7]Tennessee v. Garner,[8] and Scott v. Harris. [9] At the heart of each of these cases are the analysis and factors set forth in Graham.

A. California penal codes

The sections of the California Penal Code that govern the use of force in arrests are 835a[10] and 843 [11]. When an officer makes a warrantless arrest, Section 835a applies and states that when an officer has reasonable cause to believe the suspect has committed a crime, the officer “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.”[12] When an officer makes an arrest pursuant to a warrant, and the suspect either flees or forcibly resists, “the officer may use all necessary means to effect the arrest.”[13] In either case, the force used must not be unreasonable.[14] Note that a suspect has a duty to peacefully comply with any arrest. Penal Code Section 834a states that when a suspect knows or should know they are being arrested, it is their duty to “to refrain from using force or any weapon to resist such arrest.”[15]

B. The Graham test

To determine whether the forced used was reasonable, judges, juries, and prosecutors use the test laid out in Graham v. Conner.[16] In Graham, the eponymous victim was suffering the onset of insulin shock. [17] He asked a friend to drive him to a convenience store to get some orange juice to counteract the shock, but upon finding a long line at the checkout counter, he asked to instead be driven to another friend’s house. [18] Officer Conner suspected something was amiss after seeing Graham quickly enter and leave the store and pulled the car over, initiating an investigatory stop.[19] Not believing that Graham was suffering from insulin shock, Conner told Graham and the driver to wait while he found out what happened at the convenience store.[20] Graham eventually exited the car and passed out on the curb. [21] By this time, backup officers had arrived.[22] They handcuffed Graham, threw him against the hood of a patrol car, and then tossed him headfirst into the back of the car.[23] Upon finding out that nothing happened at the convenience store, the officers released Graham. [24] However, their treatment of him during the arrest resulted in: “a broken foot, cuts on his wrists, a bruised forehead, . . . an injured shoulder[,]” and a persistent ringing in his right ear.[25]

Before announcing the current reasonableness test, the Court first rejected the older, four-part test used by courts since 1973. [26] This test took into account the need for, and amount of, force used, as well as the extent of the injury suffered and the subjective mindset of the officer (in other words, whether the officer inflicted the force maliciously in order to cause harm, or in good faith to de-escalate a situation).[27] In contrast, the current test considers: (1) “the severity of the crime at issue, [(2)] whether the suspect poses an immediate threat to the safety of the officers or others, and [(3)] whether he is actively resisting arrest or attempting to evade arrest by flight.”[28] Adjudicators must weigh the factors on a case-by-case basis and consider the totality of the circumstances surrounding the arrest and the force used, [29] in order to balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.”[30] The Court added that the reasonableness analysis must “embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” [31]

The Graham test thus removes the subjective inquiry into why the particular officer inflicted the force. Instead, the reasonableness of the force is determined from the “perspective of a reasonable officer on the scene,”[32] an objective analysis [33]. Therefore, an officer’s good intentions will not sway the analysis in favor of reasonableness, nor will their bad intentions make the use of force more unreasonable.[34]

A. Deadly force and Garner

The use of deadly force to effectuate an arrest seems oxymoronic. The deceased cannot be taken into custody to later stand trial. In such cases, however, officers are not exerting deadly force solely to bring the suspect in. They are seeking to literally arrest or stop their motion to prevent their escape. Under the rule set forth in Tennessee v. Garner[35] use of deadly force is not unreasonable where “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.”[36] Some lower courts had adapted this standard into a more rigid, bright-line rule, holding that deadly force is permissible “only against dangerous felons in flight.”[37]

C. Scott addresses the distinction (or lack thereof) between Garner and Graham.

It was thought that Garner governed deadly force and Graham governed all other force.[38] But, in Scott v. Harris,[39] the Court rejected the notion that Garner and Graham enunciated separate tests for deadly force and general force, respectively, stating that “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test . . . to the use of a particular type of force in a particular situation.”[40] Instead, the Court wrote, “all that matters is whether Scott’s actions were reasonable.” [41]

In Scott, deputies initiated a high speed chase after Harris failed to pull over for speeding.[42] After evading officers’ attempt to box him in at a shopping center parking lot, the high speed chase resumed with Officer Scott as the lead car.[43] Scott applied his bumper to Harris’ vehicle in an attempt to stop his car and end the chase.[44] The maneuver caused Harris to lose control of his vehicle and crash into an embankment.[45] Scott was seriously injured and rendered paraplegic. [46] The chase lasted approximately six minutes and ran for nearly ten miles, down what was mostly a two lane road, at speeds exceeding eighty-five miles per hour.[47]

In applying the Graham analysis to Harris’ case, the Court, interestingly, did not explicitly use all three factors expressed in Graham.[48] Rather, the Court restated the general Fourth Amendment balancing rule [49] and then considered the second factor: the immediacy of the threat Harris posed to the safety of the officers or others.[50] Relying on the police video of the chase, the Court immediately found Harris posed an “actual and imminent threat” to officers, pedestrians, and other motorists.[51] Addressing the overall balancing inquiry, the Court weighed the threat to Harris that Scott’s use of force posed, against the imminent threat Harris’ continued reckless driving posed to the officers and public.[52] The Court speculated that the risk of harm to both sides was high, but that the risk to Harris may have been higher.[53] To resolve the issue, the Court looked at the culpability of both sides.[54] Upon finding the officers and bystanders quite innocent, and Harris quite culpable, since he “intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight,” the Court had “little difficulty” in finding Scott’s use of force reasonable.[55]

D. Recent decision in Plumhoff

Plumhoff parallels the facts of Scott in that both involved the use of force to end a high speed chase. The suspect, Rickard, along with one passenger, Allen, were pulled over by Officer Forthman for driving with a headlight out.[56] When Forthman asked Rickard to step out of the vehicle, Rickard sped away.[57] In pursuit, Officer Forthman, now accompanied by several additional officers, including Plumhoff, attempted to stop Rickard’s vehicle with a rolling roadblock, but were unsuccessful. [58] Continuing to flee, Rickard eventually turned into a parking lot where officers attempted to corner him.[59] Rickard continued to operate his vehicle, trying to escape while officers fired three shots into his car.[60] Rickard eventually managed to maneuver around the police cruisers and out of the parking lot.[61] Officers fired an additional twelve shots at the vehicle as it sped away. [62] Rickard then lost control of the vehicle, crashing into a building. Both Rickard and Allen died from a combination of gunshot wounds and injuries from the crash.[63] The chase lasted over five minutes as officers and Rickard weaved around approximately two dozen other vehicles, at times exceeding one hundred miles per hour. [64]

In determining whether the force used by the officers was reasonable, the Court again restated the general balancing inquiry,[65] and then proceeded to analogize to the facts of Scott [66]. Specifically, the Court noted the parallels between the pursuits (for example, the high speeds and frequency of weaving in and out of traffic).[67] The Court concluded that in the instant case, “as in Scott, the police acted reasonably in using deadly force to end . . . [the] risk.”[68] Finding the deadly force, in general, reasonable, the Court also held that the number of shots fired was also reasonable. [69] “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”[70]

III. Review of Recent Case Applying the Graham Test

On August 9, 2014, Officer Darren Wilson shot and killed an unarmed teenager, Michael Brown, in Ferguson, Missouri. [71] The event prompted nation-wide protests.[72] After being presented with over seventy hours of testimony from over sixty witnesses,[73] a grand jury in Ferguson decided not to indict Officer Wilson.[74] This too, led to protests. [75] Unfortunately, without access to the jury’s deliberations, it is difficult to determine how they applied the applicable law in reaching their decision. However, the Department of Justice (“DOJ”) conducted their own investigation in order to determine whether to federally prosecute Officer Wilson. After reviewing the evidence, most of which was identical to the evidence presented to the grand jury, the DOJ found Officer Wilson’s use of force was not objectively unreasonable under the Supreme Court’s definition. [76]

A. Facts relied on by the DOJ

According to the DOJ’s report, Wilson stopped Brown as he and a companion were walking down the street.[77] Brown had recently stolen a pack of cigarillos from a convenience store and Wilson heard a description of the suspects over the radio. [78] Wilson moved his vehicle in front of Brown, blocking his path, after which Brown reached into the open driver’s side window of Wilson’s car in an apparent attack.[79] Officer Wilson drew his gun and he and Brown struggled to control it.[80] During the struggle, Wilson fired twice, hitting Brown once in the hand.[81] Brown then fled and Wilson pursued, firing an additional ten shots. [82] According to the DOJ report, while the credible witness statements vary in their descriptions of the motion and position of Brown’s hands when Officer Wilson shot him, “they all establish that Brown was moving toward Wilson,” not running away, when Wilson shot him.[83] Brown died in the street as a result of the gunshot injuries. [84]

Some of the more controversial alleged facts of the case, such as that Brown never turned and moved back toward Wilson and that Wilson shot Brown as he was running away or had his hands up in surrender, were not relied on by the DOJ because witness accounts stating as much were inconsistent with the physical evidence and credible witness accounts.[85]

B. Legal analysis of the DOJ

After citing the legal standard of Graham, as well as language on the use of deadly force in Garner, [86] the DOJ stated it would determine whether the “available evidence could prove that Wilson acted reasonably or unreasonably” by examining whether the “evidence shows that Wilson reasonably believed that Brown posed a threat of serious bodily harm to Wilson himself or others in the community, or whether Brown clearly attempted to surrender, prior to any of the shots fired by Wilson.” [87]

Regarding the shots fired from within Wilson’s car, the DOJ determined that it was not unreasonable for an officer to use deadly force “in response to being physically assaulted by a subject who attempts to take his firearm.”[88] In particular, the DOJ relied on the holding in Nelson v. County of Wright,[89] where the court determined “that it was not objectively unreasonable for [an] officer to shoot at a suspect through a closet door after [a] suspect attempted to grab his gun, hit him in the head with an asp, and pushed him into [the] closet.”[90]

Turning to the shots fired when Wilson and Brown were both on the street, the DOJ first reiterated that all the physical evidence and credible witness reports indicated that Wilson shot Brown as he was moving, running, or charging toward Wilson.[91] The DOJ then returned to the “key” question of “whether Brown could reasonably have been perceived to pose a deadly threat to Wilson.” [92] In finding Wilson could reasonably have perceived Brown as a threat, the DOJ made the following conclusions. First, Wilson had reason to believe Brown may have been armed when Brown reached into his waistband as he was moving toward Wilson. [93] Given Brown’s aggressive action at Wilson’s vehicle, and “in light of the rapidly-evolving nature of the incident,” “Wilson did not have time to determine whether Brown had a gun and was not required to risk being shot himself in order to make a more definitive assessment.”[94] Second, even if Brown never reached into his waistband, the DOJ determined that Wilson still could have reasonably perceived a deadly threat, given Brown’s advancement toward him and refusal to yield to Wilson’s commands to stop.[95] In reaching this second conclusion, the DOJ relied on the holding of Loch v. City of Litchfield,[96] where “[a]lthough the suspect’s ‘arms were raised above his head or extended at his sides,’ the Court of Appeals held that a reasonable officer could have perceived the suspect’s forward advance in the face of the officer’s commands to stop as resistance and a threat.”[97] For these reasons the DOJ decided that it was not objectively unreasonable for Wilson to have used deadly force.[98]

IV. Conclusion

While the use of force by police officers continues to be a topic of fervent public debate, because of the nature of the law, the rules broadly described above will be in force for some time. Thus, judges, juries, and prosecutors will continue to rely on them to determine whether the force used was constitutional. Citizens who believe they have been subjected to unreasonable force should not be discouraged, however, from asserting their rights in light of the recent high profile cases that did not result in an indictment or conviction. The Fourth Amendment clearly protects a citizen’s right to be free from unreasonable seizures, and those who believe their rights have been violated should consult with an experienced civil rights attorney to discuss their options.

[1] E.g. , Christy J. Millweard & KVUE Staff, Bystanders Accuse Austin Police of Excessive Force, KVUE (June 8, 2015), (describing officer’s use of mace); Jacquellena Aarrero & M. Alex Johnson, McKinney, Texas, Cop Placed on Leave After Pulling Gun on Teens at Pool Party, NBC News (June 8, 2015), (describing officer’s use of physical force and brandishing of weapon); Bob Kealing, Did Orlando Police Officer Use Excessive Force When Kicking Suspect?, WPTV (June 9, 2015), (describing officer’s use of physical force and taser).

[2] Ferguson Unrest: From Shooting to Nationwide Protests , BBC News (Mar. 12, 2015), (describing the circumstances and aftermath of the death of Michael Brown).

[3] Monica Davey & Julie Bosman, Protests Flare after Ferguson Police Officer Is Not Indicted, NY Times (Nov. 24, 2014), .

[4] The purpose of this article is not to question whether the legal rules governing the use of force were properly applied in the examples given, or even whether the rules themselves are just or unjust.

[5] U.S. Const. amend. IV., available at

[6] Graham v. Conner, 490 U.S. 386, 395 (1989) (holding “that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard).

[7] Graham v. Conner, 490 U.S. 386 (1989).

[8] Tennessee v. Garner, 471 U.S. 1 (1985).

[9] Scott v. Harris, 550 U.S. 372 (2007).

[16] Graham v. Conner, 490 U.S. 386 (1989).

[17] Id. at 388.

[18] Id. at 388–89.

[19] Id. at 389.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 390.

[26] Id. at 395.

[27] Id. at 390–93.

[28] Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

[29] Id. at 396 (“[P]roper application [of the test] requires careful attention to the facts and circumstances of each particular case[.]”) (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

[30] Id. (internal quotation marks omitted).

[31] Id. at 396–97.

[32] Id. at 397 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).

[33] Id. (citing Scott v. United States, 436 U.S. 128, 137–139 (1978)).

[34] Id.

[35] Tennessee v. Garner, 471 U.S. 1 (1985).

[36] Id. at 11.

[38] See Harmon, supra note 37, at 1134–35.

[39] Scott v. Harris, 550 U.S. 372 (2007).

[40] Id. at 382 (2007) (internal citations omitted); Harmon, supra note 37, at 1137.

[41] Scott at 383.

[42] Id. at 374.

[43] Id. at 375.

[44] Id.

[45] Id.

[46] Id.

[47] Id. at 374–75.

[48] Id. at 383–86; Harmon, supra note 37, at 1135–37.

[49] Scott at 383; see supra note 30 and accompanying text.

[50] Scott at 383–84.

[51] Id.

[52] Id.

[53] Id. 384.

[54] Id.

[55] Id.

[56] Plumhoff v. Rickard, 143 S. Ct. 2012, 2017 (2014).

[57] Id. at 2017.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id. at 2018.

[63] Id.

[64] Id. at 2021.

[65] Id. at 2020.

[66] Id. at 2021–22

[67] Id.

[68] Id. at 2022.

[69] Id.

[70] Id.

[71] Dep’t of Justice, Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson at 4 (2015), available at [hereinafter Dep’t of Justice].

[72] E.g. , Ferguson Unrest: From Shooting to Nationwide Protests, supra note 2.

[73] Much of the evidence presented to the grand jury is easily accessible to the public. E.g., Documents Released in the Ferguson Case, NY Times (Dec. 15, 2014), .

[74] E.g. , Moni Basu, Holly Yan & Dana Ford, Fires, Chaos Erupt in Ferguson After Grand Jury Doesn't Indict in Michael Brown Case, CNN (Nov. 25, 2014),

[75] Id.

[76] Dep’t of Justice, supra note 71, at 5.

[77] Id.

[78] Id.

[79] Id.

[80] Id.

[81] Id. at 5–6.

[82] Id.

[83] Id. at 6–7.

[84] Id. at 7–8.

[85] Id. passim .

[86] Id. at 79–80.

[87] Id. at 80.

[88] Id. at 81 (citing Nelson v. County of Wright, 162 F.3d 986, 990–91 (8th Cir. 1998)).

[89] Nelson v. County of Wright , 162 F.3d 986 (8th Cir. 1998).

[90] Dep’t of Justice, supra note 71, at 81.

[91] Id. at 82–83.

[92] Id. at 84.

[93] Id.

[94] Id.

[95] Id.

[96] Loch v. City of Litchfield, 689 F.3d 961 (8th Cir. 2012).

[97] Dep’t of Justice, supra note 71, at 84 (citing Loch v. City of Litchfield 689 F.3d 961, 966 (8th Cir. 2012)).

[98] Id. at 85.