Gen. 33] 33

PUBLIC SAFETY

POLICE OFFICERS – USE OF FORCE STATUTE – MEANING OF 

THE REQUIREMENT THAT FORCE USED BY OFFICERS MUST 

BE “NECESSARY” AND “PROPORTIONAL”

February 25, 2022

Woodrow W. Jones III

Superintendent, Maryland State Police

You have asked for our opinion on the meaning of the phrase 

“necessary and proportional” in the new Maryland Use of Force 

Statute, which takes effect July 1, 2022, and provides that a police 

officer “may not use force against a person unless, under the totality 

of the circumstances, the force is necessary and proportional to” 

(1) “prevent an imminent threat of physical injury to a person” or 

(2) “effectuate a legitimate law enforcement objective.” 2021 Md. 

Laws, ch. 60 (to be codified at Md. Code Ann., Pub. Safety (“PS”) 

§ 3-524(d)(1)). Once the new law goes into effect, a police officer 

will be criminally liable for “intentionally violat[ing]” this standard 

if the violation results “in serious physical injury or death to a 

person.” Id. (to be codified at PS § 3-524(i)(1) (emphasis added)). 

In addition, violations of the standard, even unintentional ones, 

may serve as grounds for disciplinary action against officers. See, 

e.g., 2021 Md. Laws, ch. 59 (to be codified at PS § 3-212(a)(1)(ii)) 

(providing that the Maryland Police Training and Standards 

Commission “may suspend or revoke the certification of a police 

officer” who violates the Maryland Use of Force Statute).1 

A standard like this one cannot be “reduced to a formula” and 

is “not amenable to a precise definition,” as it necessarily depends 

on “the specific circumstances encountered by the officer” on the 

scene. 84 Opinions of the Attorney General 105, 105, 114 (1999) 

(involving a form domestic violence protective order that used the 

phrase “reasonable and necessary force” in authorizing police 

officers to use force to return a minor child to a parent). 

In our view, however, there are three core principles that can 

be gleaned from the requirement that force be “necessary and 

1 The statute is silent as to what impact, if any, the new standard might 

have on potential civil liability. That question is outside of the scope of 

this opinion and is for the courts to decide. But, as we explain below, 

the statute makes no mention of civil liability, and we have seen no 

indication in the legislative history that the new law was specifically 

intended to establish a new civil standard. See Part II.E, infra.
34 [107 Op. Att’y

proportional.” First, the use of force is not “necessary” unless there 

is no reasonable alternative to using force that, under the totality of 

the circumstances, would safely and effectively achieve the same 

legitimate ends. As a practical matter, that first principle will 

sometimes require, when circumstances allow, that officers employ 

non-force alternatives, such as de-escalation techniques, before 

resorting to any use of force. Second, even when the use of some

force is necessary, the degree and amount of force must be 

“proportional,” that is, it must correspond to, and be appropriate in 

light of, the severity of the threat or resistance confronting the 

officer or the objective that the officer aims to achieve. Put another 

way, an officer may use no more force than is reasonably required 

under the circumstances to prevent an imminent threat of physical 

injury to a person or to effectuate another legitimate law 

enforcement objective. Third, the proportionality requirement 

further prohibits an officer from using force if the harm that is 

likely to result from that degree and amount of force is too severe 

in relation to the value of the interest that the officer seeks to 

protect. For example, even if deadly force is the only feasible way 

to prevent the mere destruction of a piece of property, an officer 

may not use such force, because the harm likely to result is not 

proportional to the officer’s legitimate interest in protecting 

property. Instead, an officer may use lethal force only in response 

to an apparent imminent threat of death or serious bodily injury to 

a person. 

This new standard does not, however, require officers to 

jeopardize their own safety by pursuing alternatives that are not 

reasonable under the totality of the circumstances—circumstances 

which are likely to include, among other things, the amount of time 

that the officer has to make a decision and the immediacy of the 

threat facing the officer. We recognize that police officers are 

sometimes called upon to make split-second decisions, and the 

standard thus does not require police officers to be omniscient or 

to act at the time of the encounter as if they had the benefit of 

perfect hindsight. Nor does the standard necessarily require an 

officer responding to an attack to use the exact same type, degree, 

or amount of force as an attacker; after all, police officers need to 

be able to use enough force to overcome the threat that they 

confront, at least when using force is necessary to achieve a law 

enforcement objective. 

But the new standard is materially different from, and is 

stricter than, the prevailing standard established by the United 

States Supreme Court and typically used in Maryland for 

determining whether a police officer’s use of force is justified. For 
Gen. 33] 35

example, the new standard requires consideration of other means 

an officer could reasonably have employed under the totality of the 

circumstances to achieve the same ends safely and effectively, a 

factor that is not relevant under the current standard. The new 

standard also provides that the degree and amount of force used by 

a police officer must be no more than the situation reasonably 

requires. Finally, while the current test looks only at the moments 

directly preceding the use of force to determine whether the 

officer’s conduct was justified, this new standard appears to expand 

the relevant window of time to include circumstances earlier in the 

interaction leading up to an officer’s use of force, taking into 

account such factors as whether the officer unnecessarily escalated 

the situation. 

I

Background

The Maryland Use of Force Statute is the first legislative 

enactment establishing limits on the use of force by Maryland’s 

police officers, who, until now, have been subject only to the 

standards set forth in case law and the policies of individual law 

enforcement agencies. 

A. Current Use of Force Standards Set by Case Law

Generally, under current excessive-force jurisprudence, a 

police officer in Maryland is not civilly or criminally liable for the 

use of force so long as the officer’s actions are “objectively 

reasonable” under the circumstances. See, e.g., Estate of Blair ex 

rel. Blair v. Austin, 469 Md. 1, 21-22 (2020) (plurality) (explaining 

that, in a civil excessive force case, “the plaintiff must establish by 

a preponderance of the evidence that the officer exceeded the level 

of force an objectively reasonable officer would use under the same 

or similar situation”); State v. Pagotto, 361 Md. 528, 538 (2000) 

(recognizing, in a case involving criminal charges of involuntary 

manslaughter and reckless endangerment, that the “chief question” 

was whether the State had shown that the defendant police officer 

had “not acted as a reasonable police officer, similarly situated” 

(internal quotation marks omitted)). This standard, rooted in the 

Fourth Amendment, derives from a pair of cases that the U.S. 

Supreme Court decided in the 1980s: Tennessee v. Garner, 471 

U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989).

In Garner, the Court held that a police officer cannot use 

deadly force to prevent the escape of an apparently unarmed 

suspected felon unless such force “is necessary to prevent the 
36 [107 Op. Att’y

escape and the officer has probable cause to believe that the suspect 

poses a significant threat of death or serious physical injury to the 

officer or others.” 471 U.S. at 3. Garner involved an officer who, 

responding to a late-night call of a break-in, arrived at a house, 

heard a door slam, and spotted someone running across the 

backyard toward a 6-feet-high chain link fence. Id. Using a 

flashlight, the officer saw the suspect’s face and hands and was 

“reasonably sure” that he was unarmed. Id. Nonetheless, when the 

suspect ignored the officer’s command to halt and began climbing 

over the fence, the officer shot him in the back of the head. Id. at 

4. The suspect, a fifteen-year-old boy, later died at a hospital. Id.

& n.2. 

The boy’s father sued under 42 U.S.C. § 1983, alleging that 

the police officer’s use of deadly force violated several provisions 

of the United States Constitution. Garner, 471 U.S. at 5. The 

Supreme Court focused on the Fourth Amendment claim, 

reasoning that “[w]henever an officer restrains the freedom of a 

person to walk away, he has seized that person,” and that 

“apprehension by the use of deadly force is a seizure subject to the 

reasonableness requirement of the Fourth Amendment.” Id. at 7. 

The Court reiterated that “the key principle of the Fourth 

Amendment” is “the balancing of competing interests,” id. at 8 

(quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)): on 

the one hand, “the nature and quality of the intrusion on [an] 

individual’s Fourth Amendment interests,” and, on the other hand, 

“the importance of the governmental interests alleged to justify the 

intrusion,” id. (quoting United States v. Place, 462 U.S. 696, 703 

(1983)). Thus, reasonableness of a seizure “depends on not only 

when a seizure is made, but also how it is carried out.” Id.

(emphasis added). “[T]he question [is] whether the totality of the 

circumstances justifie[s] a particular sort of . . . seizure.” Id. at 8-

9.

Applying these principles, the Garner Court concluded that 

the officer’s use of deadly force was unreasonable and, thus, 

unconstitutional. Garner, 471 U.S. at 11, 20-22. The Court 

explained:

Where the suspect poses no immediate threat 

to the officer and no threat to others, the harm 

resulting from failing to apprehend him does 

not justify the use of deadly force to do so. It 

is no doubt unfortunate when a suspect who is 

in sight escapes, but the fact that the police 

arrive a little late or are a little slower afoot 
Gen. 33] 37

does not always justify killing the suspect. A 

police officer may not seize an unarmed, 

nondangerous suspect by shooting him 

dead. . . . [But] [w]here the officer has 

probable cause to believe that the suspect 

poses a threat of serious physical harm, either 

to the officer or to others, it is not 

constitutionally unreasonable to prevent 

escape by using deadly force. Thus, if the 

suspect threatens the officer with a weapon or 

there is probable cause to believe that he has 

committed a crime involving the infliction or 

threatened infliction of serious physical harm, 

deadly force may be used if necessary to 

prevent escape, and if, where feasible, some 

warning has been given.

Id. at 11-12.

Four years later, in Graham, the Court “ma[d]e explicit” 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.” 490 U.S. 

at 395 (emphasis in original). Noting that “[t]he test . . . is not 

capable of precise definition or mechanical application,” the Court 

said that the reasonableness of a police officer’s use of force 

depends on “the facts and circumstances of each particular case, 

including the severity of the crime at issue, whether the suspect 

poses an immediate threat to the safety of the officers or others, and 

whether [the suspect] is actively resisting arrest or attempting to 

evade arrest by flight.” Id. at 396 (first alteration in original). 

The Court also explained that “[t]he ‘reasonableness’ of a 

particular use of force must be judged from the perspective of a 

reasonable officer on the scene, rather than with the 20/20 vision 

of hindsight.” Id. That approach, the Court said, “embod[ies] 

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.” Id. at 396-97. “As in other Fourth 

Amendment contexts, however, the ‘reasonableness’ inquiry in an 

excessive force case is an objective one: the question is whether the 

officers’ actions are ‘objectively reasonable’ in light of the facts 

and circumstances confronting them, without regard to their 

underlying intent or motivation.” Id. at 397.
38 [107 Op. Att’y

Graham proved a “seminal decision” for evaluating police 

officers’ use of force. Blair, 469 Md. at 43 (Watts, J., concurring). 

“Maryland courts have repeatedly relied upon Graham for a 

framework to analyze whether challenged law enforcement action 

constituted excessive force.” 84 Opinions of the Attorney General 

at 115; see also French v. Hines, 182 Md. App. 201, 262 (2008) 

(“[T]he Graham standard is applied consistently in Maryland 

courts.”). For example, the objective reasonableness test has been 

applied to claims that an officer’s use of force violated the 

Maryland Constitution,2constituted an unlawful battery or other 

tort,3 or rose to the level of a crime.4 

In applying Graham, Maryland courts have said that the 

reasonableness of an officer’s use of force depends only on “the 

circumstances at the moment or moments directly preceding the 

use of . . . force.” Mayor & City Council of Baltimore v. Hart, 167 

2

See, e.g., Blair, 469 Md. at 22-23 (“Whether a police officer has used 

excessive force in violation of the Maryland Declaration of Rights is 

judged under the standard of objective reasonableness established by the 

United States Supreme Court to analyze analogous claims made under 

the Fourth Amendment to the federal Constitution.” (brackets and 

internal quotation marks omitted)); Richardson v. McGriff, 361 Md. 437, 

452 (2000) (recognizing that Graham’s objective reasonableness test 

applies to a claim of excessive force in violation of Article 26 of the 

Maryland Declaration of Rights).

3

See, e.g., Richardson, 361 Md. at 452-53 (recognizing that the Court 

of Appeals “ha[s] adopted essentially the same principle as a matter of 

State common law” and that Graham’s objective reasonableness test “is 

the appropriate one to apply . . . to . . . common law claims of battery and 

gross negligence” by police officers).

4

See, e.g., Pagotto, 361 Md. at 549-50, 555 (noting that the Graham

standard of objective reasonableness is “equally apposite” to criminal 

charges of involuntary manslaughter and reckless endangerment based 

on a police officer’s use of force); Cagle v. State, 235 Md. App. 593, 

604-05, 607 (2018) (noting in a case affirming a police officer’s 

convictions for first-degree assault and use of a firearm in the 

commission of a felony or crime of violence, that when “an officer has 

been accused of using excessive force in the course of an arrest, evidence 

is relevant as to whether the officer’s actions [were] objectively 

reasonable” under the Graham standard); Wilson v. State, 87 Md. App. 

512, 519-21 (1991) (noting that an officer who satisfies the objective 

reasonableness standard in the use of force “is not liable civilly or 

criminally for the assault or battery that may result, including, if 

necessary, the use of deadly force”). To be clear, however, even under 

current law, the prosecution of crimes may also require the State to prove 

more than a mere violation of the Graham standard, such as an intent 

element.
Gen. 33] 39

Md. App. 106, 118 (citing Richardson, 361 Md. at 458), aff’d, 395 

Md. 394 (2006). The officer’s actions leading up to the use of force 

are “irrelevant to the objective reasonableness of his conduct at the 

moment he decided to employ . . . force,” which “depends only 

upon the officer’s knowledge of circumstances immediately prior 

to and at the moment he decided to employ . . . force.” Richardson, 

361 Md. at 456-57 (internal quotation omitted); see also id. at 456-

58 (citing cases limiting the scope of inquiry to the moment an 

officer used force, and concluding that this “is the only sensible 

approach”); cf. Pagotto v. State, 127 Md. App. 271, 356 (1999) 

(“Antecedent and allegedly negligent acts that may have 

contributed to the creation of a dangerous situation are not pertinent 

in evaluating the officer’s state of mind at the critical moment when 

the gun, for instance, is discharged.”), aff’d, 361 Md. 528 (2000).

Maryland courts have also made clear that a police officer’s 

use of force need only “fall[] within a range of conduct which is 

objectively ‘reasonable’ under the Fourth Amendment.” 

Richardson, 361 Md. at 455 (quoting Schulz v. Long, 44 F.3d 643, 

649 (8th Cir. 1995)). The inquiry “focuses not on what the most 

prudent course of action may have been or whether there were other 

alternatives available.” Id. (quoting Schulz, 44 F.3d at 649). Such 

alternative measures “are simply not relevant to the reasonableness 

inquiry.” Id. (quoting Schulz, 44 F.3d at 649); see also Randall v. 

Peaco, 175 Md. App. 320, 334 (2007) (“[T]he reasonableness of a 

police officer’s use of deadly force is not measured by what other 

measures the officer could have employed.”).

The standard that has emerged from the cases, then, limits 

police officers in Maryland to the use of “reasonable” force, that is, 

force that falls within a range of acceptable actions, as viewed from 

the perspective of an objectively reasonable officer at the moment 

force is used, without regard to the officer’s actions leading up to 

the moment that the officer employs the force.5

5 For clarity, we note that the Graham standard applies to claims of 

excessive force by police during an arrest, an investigatory stop, or “any 

other ‘seizure’ of a person at liberty.” Michael Avery et al., Police 

Misconduct: Law and Litigation § 2:18 (Nov. 2021). Claims of 

excessive force against state and local prisoners being detained before 

trial are subject to a Fourteenth Amendment due process analysis that 

does “not appear to differ appreciably from the Fourth Amendment 

standard of Graham.” Id. And claims of excessive force against

convicted prisoners are analyzed under the Eighth Amendment’s cruel 

and unusual standard. Id.
40 [107 Op. Att’y

B. Law Enforcement Agencies’ Use of Force Policies 

Aside from case law, the standards set forth in the policies of 

individual law enforcement agencies have been the only other 

source of authority governing a police officer’s use of force in 

Maryland. In 2016, the General Assembly enacted legislation 

requiring the Maryland Police Training and Standards Commission 

“to adopt and recommend a set of best practices and standards for 

use of force.” 2016 Md. Laws, ch. 519 (codified at PS § 3-

207(a)(19)). The Commission recommended that Maryland law 

enforcement agencies adopt policies stating “that officers may use 

force that is objectively reasonable and appears to be necessary 

under the circumstances in response to the threat or resistance by a 

subject.” Maryland Police Training and Standards Commission, 

Best Practices and Standards for the Use of Force by Law Enforcement 

Officers, at 1, https://mdle.net/pdf/UOF_Best_Practices.pdf (last 

visited Feb. 22, 2022);see also Maryland Police Training Commission, 

Model Policies for Law Enforcement in Maryland 6 (Jan. 8, 2007) 

(promoting a policy that “officers use the least amount of force that 

is reasonably necessary to control an incident, to effect an arrest, or 

to protect themselves or others from personal harm or death,” with 

“[t]he degree of force used by the officer . . . progressive along a 

continuum that spans from verbal commands to deadly force”).

Despite this guidance, however, there is no “unified use of 

force matrix for all the agencies in the state of Maryland.” Meeting 

of Workgroup to Address Police Reform and Accountability in 

Maryland, at 1:08:23 (June 23, 2020) (statement of Charles County 

Sheriff Troy Berry); see also Police Executive Research Forum, 

Guiding Principles on Use of Force, at 16 (Mar. 2016) [hereinafter 

PERF, Guiding Principles] (noting that Graham “allows for 

significant variations in police agencies’ individual policies and 

practices”); Congressional Research Service, Police Use of Force: 

Overview and Considerations for Congress, at 3 (July 10, 2020) 

(noting the “wide variation among jurisdictions with respect to the 

stringency and specificity” of law enforcement agencies’ use of 

force policies). Some department policies have adopted language 

nearly identical to the Graham standard.6 Others have deviated 

from “the constitutional floor set in Graham,” Hilary Rau et 

al., State Regulation of Policing: Post Commissions and Police 

Accountability, 11 U.C. Irvine L. Rev. 1349, 1380 (2021), by, for 

example, requiring officers to use “the minimum amount of force 

6

See, e.g., Howard County Dep’t of Police, General Order OPS-11: 

Use of Force, at 3 (2021) (“Members shall only use the physical force 

that is objectively reasonable to effect lawful purposes.”). 
Gen. 33] 41

necessary” to accomplish a legitimate law enforcement objective,7

or allowing an officer to use force “only when no reasonably 

effective alternative exists.”8 Going forward, of course, police 

department use of force policies in Maryland will have to comply 

with the new “necessary and proportional” standard. And, while 

an officer faces criminal liability only for intentionally violating 

the new statutory standard (and only if the violation results in death 

or serious bodily injury), an officer may still face disciplinary 

action by the officer’s employer for unintentional violations.

C. Movement Toward a Statutory Standard in Maryland

In the summer of 2020, in the wake of the killing of George 

Floyd by a Minneapolis police officer,9 Maryland lawmakers 

announced bipartisan efforts to study and enact sweeping police 

reform legislation.10 In the ensuing months, lawmakers heard from 

many individuals calling for the adoption of a statewide statutory 

standard for police officers’ use of force. Proponents argued that, 

in the absence of a statute, officers had “minimal guidance about 

how [they] are supposed to engage with suspects.” E.g., Hearing 

on H.B. 139 Before the House Judiciary Comm., 2021 Leg., Reg. 

Sess. (Feb. 9, 2021) (written testimony of Chris Apple). Critics 

had long assailed the Graham standard as failing to “provide 

specific guidance.” PERF, Guiding Principles, at 15 (emphasis in 

original); see also Rachel A. Harmon, When Is Police Violence 

Justified?, 102 Nw. U. L. Rev. 1119, 1131 (2008) (arguing that “the 

7 Kent County Sheriff’s Office, Administrative and Operations

Manual 8-1 (2021).

8 Baltimore Police Dep’t, Policy 1115: Use of Force 4 (2019).

9 Floyd, a Black man, died on May 25, 2020, after Derek Chauvin, a White 

police officer, handcuffed and pinned Floyd to the ground and pressed his 

knee on Floyd’s neck for about nine and a half minutes. E.g., Holly Bailey et 

al., Medical Examiner Says Police Restraint, Neck Compression “More Than 

Mr. Floyd Could Take,” Wash. Post, April 9, 2021, 

https://www.washingtonpost.com/nation/2021/04/09/derek-chauvin-trial-2/. 

The killing, captured on cell phone video, spurred demonstrations in cities 

across the country, including Baltimore. E.g., McKenna Oxenden, Christina 

Tkacik, Justin Fenton, & Lillian Reed, Protests Continue for the 11th Straight 

Day in Baltimore Following the Death of George Floyd, Balt. Sun, June 8, 

2020, https://www.baltimoresun.com/maryland/baltimore-city/bs-md-ciprotest-day-11-20200608-kqhb4hdre5drdbekgvrfr5ldnq-story.html. 

10 See, e.g., Pamela Wood, After Death of George Floyd, Maryland Lawmakers 

Forming Work Group on Police Reform, Accountability, Balt. Sun, May 30, 2020, 

https://www.baltimoresun.com/politics/bs-md-pol-police-accountability-group20200530-vllpk32dznh4rewovasncz3rda-story.html.
42 [107 Op. Att’y

Graham factors fail to specify how to evaluate whether an officer’s 

actions were justified in a particular situation, including whether 

they were reasonable given the spectrum of possible responses”); 

Gregory Howard Williams, Controlling the Use of Non-Deadly 

Force: Policy and Practice, 10 Harv. BlackLetter J. 79, 97 (1993) 

(arguing that Graham’s “wide-open, fact-specific inquiry provides 

little guidance for law enforcement agencies in how to structure 

their conduct regarding the use of non-deadly force”).

In recent years, several other states and police departments 

outside Maryland have adopted standards more restrictive of police 

officers’ use of force than Graham. California, for instance, 

codified that “peace officers [should] use deadly force only when 

necessary in defense of human life,” a standard that requires 

officers to “use other available resources and techniques if 

reasonably safe and feasible.” A.B. 392, 2019-2020 Leg. Sess. 

(Cal.) (codified at Cal. Penal Code § 835a(a)(2) (emphasis added)). 

Colorado enacted legislation permitting officers to “use physical 

force only if nonviolent means would be ineffective in effecting an 

arrest, preventing an escape, or preventing an imminent threat of 

injury to the . . . officer or another person.” S.B. 217, 2020 Reg. 

Leg. Sess. (Colo.) (codified at Colo. Rev. Stat. Ann. § 18-1-

707(1)). And the Camden County Police Department in New 

Jersey adopted a use of force policy that “aspires to go beyond 

Graham and its minimum requirements” by authorizing officers to 

use only force that is “objectively reasonable [and] necessary,” and 

only “as a last resort.” Camden County Police Dep’t, Use of Force 

2-3 (Aug. 21, 2019).

In Maryland, in the months following George Floyd’s murder, 

many advocates urged the General Assembly to enact a statutory 

standard that would permit police officers to use deadly force (or, 

in some cases, any force) only when “necessary,” a standard they 

considered more restrictive than Graham. See, e.g., Meeting of 

Workgroup to Address Police Reform and Accountability in 

Maryland, at 7:35-7:40, 8:05-8:48 (Aug. 6, 2020) (statement of 

Kristina Roth, Senior Advocate, Criminal Justice Program, 

Amnesty International USA) (advocating for a “necessary” 

standard, considered “more restrictive” than Graham, which would 

prohibit a police officer from using deadly force unless necessary 

as a last resort to respond to an imminent threat to life after 

exhausting reasonable alternative options); Meeting of Workgroup 

to Address Police Reform and Accountability in Maryland, at 

2:55:20-2:55:40 (Sept. 17, 2020) (statement of Zain Shirazi, 

Assistant Public Defender, Charles County) (advocating for a 

statute that would allow police to use deadly force only when 
Gen. 33] 43

“absolutely necessary, as a last resort”); Hearing Before the Senate 

Judicial Proceedings Comm. on Police Accountability and Law 

Enforcement Reform, at 1:26:18-1:26:40 (Sept. 22, 2020) 

(statement of ACLU attorney David Rocah) (arguing that Graham

“gives officers too much discretion” and that Maryland should 

adopt a statute “limit[ing] police use of force to that which is 

necessary, meaning, under the totality of circumstances, there was 

no reasonable alternative”); Hearing Before the Senate Judicial 

Proceedings Comm. on Police Accountability and Law 

Enforcement Reform at 1:56:26-1:56:32 (statement of Neill 

Franklin, Executive Director, Law Enforcement Action 

Partnership) (arguing for “the reasonable standard [to] move to a 

place of necessity, a necessity standard, of last resort”). 

During the 2021 legislative session, Maryland lawmakers 

introduced several bills that proposed a statewide standard 

authorizing police officers to use only “necessary” and/or 

“proportional” force.11 Ultimately, the General Assembly adopted 

language allowing officers to use only force that, “under the totality 

of the circumstances,” is “necessary and proportional to” 

“effectuate a legitimate law enforcement objective” or “prevent an 

imminent threat of physical injury to a person.” 2021 Md. Laws, 

ch. 60 (to be codified at PS § 3-524(d)(1)). It appears from the 

legislative history that this standard was inspired, at least in part, 

by two sources. The first was Maryland’s common law on selfdefense, which (as we will discuss in more detail below) has long 

employed the concepts of necessity and proportionality. See

Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., at 

1:47:02-1:47:16 (Apr. 7, 2021) (statement of Sen. Sydnor) 

(explaining that Maryland’s self-defense law “talks about” the 

terms “necessary” and “proportional”). The second was the 

Baltimore Police Department’s similar use of force policy, which 

11 See S.B. 237, 2021 Leg., Reg. Sess. (First Reader) (requiring police 

departments to adopt rules requiring officers to use “only objectively 

reasonable, necessary, and proportional force to accomplish the officer’s 

lawful duties”); H.B. 707, 2021 Leg., Reg. Sess. (First Reader) (same); 

S.B. 626, 2021 Leg., Reg. Sess. (First Reader) (authorizing officers to 

use only “necessary force” and requiring them to cease using force when 

it is no longer “reasonable and proportional” to accomplish a legitimate 

law enforcement objective); H.B. 139, 2021 Leg., Reg. Sess. (First 

Reader) (prohibiting an officer from using force “unless the force is 

necessary force and proportional” to “prevent an imminent threat of 

physical injury to a person” or “effectuate an arrest”); H.B. 670, 2021 

Leg., Reg. Sess. (First Reader) (authorizing officers to “only use the 

force that is objectively reasonable and appears to be necessary under the 

circumstances in response to the threat or resistance by another person”).
44 [107 Op. Att’y

provides in relevant part that “[m]embers shall use only the force 

Reasonable, Necessary, and Proportional to respond to the threat or 

resistance to effectively and safely resolve an incident.” Baltimore 

Police Dep’t, Policy 1115: Use of Force 1 (2019) [hereinafter BPD 

Use of Force Policy]; see Senate Floor Proceedings No. 42, 2021 

Leg., Reg. Sess., at 5:38:29-5:39:24 (Apr. 7, 2021) (statement of 

Sen. Carter) (explaining that the Baltimore Police Department uses 

a “necessary” and “proportional” standard and advocating for those 

terms to be used in the Use of Force Statute). 

II

Analysis

You have asked for our opinion on the meaning of 

“necessary” and “proportional” as used in the Maryland Use of 

Force Statute, which states: 

(d)(1) A police officer[12] may not use force

against a person unless, under the totality of 

the circumstances, the force is necessary and 

proportional to:

(i) prevent an imminent threat of physical 

injury to a person; or

(ii) effectuate a legitimate law enforcement 

objective.[13]

(2) A police officer shall cease the use of force 

as soon as:

(i) the person on whom the force is used:

1. is under the police officer’s control; or 

2. no longer poses an imminent threat of 

physical injury or death to the police officer or 

to another person; or

(ii) the police officer determines that force 

will no longer accomplish a legitimate law 

enforcement objective.

12 “Police officer” means a police officer as defined in PS § 3-201 or 

a special police officer as defined in PS § 3-301. 2021 Md. Laws, ch. 60 

(to be codified at PS § 3-524(b)(3)). 

13 For brevity, because preventing an imminent threat of physical 

injury is itself a legitimate law enforcement objective, we will often use 

only this latter phrase with the understanding that it encompasses the 

prevention of an imminent threat of physical injury.
Gen. 33] 45

2021 Md. Laws, ch. 60 (to be codified at PS § 3-524(d)). A police 

officer who intentionally violates this standard, causing a person’s 

serious physical injury14 or death, is guilty of a misdemeanor and 

subject to up to ten years in prison. Id. (to be codified at PS § 3-

524(i)). 

Before analyzing the meaning of the phrase “necessary and 

proportional,” we address a preliminary matter about the meaning 

of “force” under the statute. The statute does not define “force,” 

and, as others have observed, “there are many different definitions 

of ‘force’ used in law-enforcement law and policy,” some of which 

encompass “nonphysical efforts by officers to influence conduct 

through commands, warnings, or persuasion.” Principles of the 

Law, Policing § 5.01 cmt. a (Am. Law Inst., Tentative Draft No. 1, 

2017). We read “force” in this statute, however, to refer primarily 

to an officer’s use of physical force, by which we mean attempts to 

gain compliance or neutralize a threat by using the officer’s body 

or an instrument such as a baton, Taser, or gun. In some cases, 

“force” might also include pointing a gun at a person or some 

similar use of a weapon. See BPD Use of Force Policy at 5 

(defining the “use of force” to include, among other things, 

displaying the “arc” of a Taser as a warning and pointing a firearm 

at a person). But, under our reading, “force” does not encompass 

an officer’s mere presence or verbal commands. We infer this 

meaning from the legislative history, which indicates that 

lawmakers enacted the statute to reduce incidents of officers 

inflicting physical harm on civilians,15 and the fact that criminal 

liability arises under the statute only when an officer’s intentional 

violation of the use of force standard results in “serious physical 

injury or death to a person,” 2021 Md. Laws, ch. 60 (to be codified 

at PS § 3-524(i)), which seems unlikely to occur based simply on 

verbal commands. Our reading is also consistent with how “force” 

is understood in the self-defense doctrine and the Baltimore Police 

14 “Serious physical injury” means “physical injury that: (1) creates a 

substantial risk of death; or (2) causes permanent or protracted serious: 

(i) disfigurement; (ii) loss of the function of any bodily member or organ; 

or (iii) impairment of the function of any bodily member or organ.” Md. 

Code Ann., Crim. Law (“CL”) § 3-201(d); see also 2021 Md. Laws, ch. 

60 (to be codified at PS § 3-524(b)(4)) (providing that “serious physical 

injury” has the meaning stated in CL § 3-201). 

15 See, e.g., Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., 

at 3:03:30-3:04:41 (Apr. 7, 2021) (statement of Sen. Sydnor) (citing 

examples of police officers physically injuring civilians in arguing for 

the new statutory standard). We discuss the legislative history more fully 

below. See Part II.B, infra.
46 [107 Op. Att’y

Department’s use of force policy, both of which (as we discuss 

further below) influenced the drafters of the Use of Force Statute. 

Having addressed that preliminary matter, we turn to the 

question before us: the meaning of “necessary” and “proportional.” 

“To ascertain the intent of the General Assembly, we begin with 

the normal, plain meaning of the statute.” State v. Bey, 452 Md. 

255, 265-66 (2017) (quoting State v. Johnson, 415 Md. 413, 421 

(2010)). “We, however, do not read statutory language in a 

vacuum,” id., but also consider the words “necessary and 

proportional” in the broader context of the Use of Force Statute as 

a whole, what lawmakers said about the meaning of those words, 

how the concepts have been applied in other contexts, and how 

other jurisdictions have incorporated these ideas into use of force 

standards. We will consider those various factors in turn.

A. The Language of the Statute

We start with the “ordinary and popular understanding” of the 

words necessary and proportional, e.g., Lockett v. Blue Ocean 

Bristol, LLC, 446 Md. 397, 421 (2016), then consider those 

meanings in the broader context of “the statute as a whole,” 

Blondell v. Baltimore City Police Dep’t, 341 Md. 680, 691 (1996). 

1. Dictionary Definitions

Dictionary definitions, although not conclusive, provide “an 

essential starting point” for evaluating the ordinary meaning of 

undefined statutory terms. Berry v. Queen, 469 Md. 674, 688-89 

(2020). Here, “necessary” is ordinarily defined to mean 

“absolutely needed,” “required,” “logically unavoidable,”16 or 

“essential or needed in order to do something, provide something, 

or make something happen.”17 “Proportional,” for its part, 

ordinarily means “corresponding in size, degree, or intensity,”18 or 

“correct or appropriate in size, amount, or degree when considered 

in relation to something else.”19 These definitions suggest that a 

particular use of force is “necessary and proportional” under the 

16 Merriam-Webster Dictionary, https://www.merriam-webster.com/ 

dictionary/necessary (last visited Feb. 22, 2022).

17 MacMillan Dictionary, https://www.macmillandictionary.com/us/

dictionary/american/necessary_1 (last visited Feb. 22, 2022).

18 Merriam-Webster Dictionary, https://www.merriam-webster.com/

dictionary/proportional (last visited Feb. 22, 2022).

19 MacMillan Dictionary, https://www.macmillandictionary.com/us/

dictionary/american/proportional (last visited Feb. 22, 2022). 
Gen. 33] 47

Maryland Use of Force Statute if an officer cannot accomplish a 

legitimate law enforcement objective without using force, and the 

amount, degree, and intensity of the force that the officer uses 

corresponds to, and is appropriate in relation to, the objective that 

the officer aims to accomplish.

We recognize, however, that “dictionary definitions do not 

provide dispositive resolutions of the meaning of statutory terms” 

but instead are merely a “starting point.” Montgomery County v. 

Deibler, 423 Md. 54, 67 (2011) (quoting Marriott Emps. Fed. 

Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447 (1997)). 

That warning is particularly important here, as courts have not 

always hewed strictly to dictionary definitions when discussing the 

concept of necessity. See, e.g., Arizona v. Washington, 434 U.S. 

497, 506 (1978) (observing, in the context of the “manifest 

necessity” that a prosecutor must show to justify a mistrial over a 

defendant’s objection, that “the key word ‘necessity’ cannot be 

interpreted literally,” because, “contrary to the teaching of 

Webster,” “there are degrees of necessity”). The Court of Special 

Appeals, for example, has observed that “the meaning of 

‘necessary’ varies with the context in which it is used.” Baltimore 

County Licensed Beverage Ass’n v. Kwon, 135 Md. App. 178, 193 

(2000) (noting that the word “may import absolute physical 

necessity or inevitability, or it may import that which is only 

convenient, useful, appropriate, suitable, proper, or conducive to 

the end sought”) (quoting Black’s Law Dictionary 714 (abridged 

6th ed. 1991)); see also Friends Sch. v. Supervisor of Assessments, 

314 Md. 194, 197, 201 & n.3 (1988) (noting that, in a statute 

providing tax exemptions for property that is “necessary” for the 

educational purposes of a qualifying educational institution, 

“‘[n]ecessary’ means reasonably necessary”).20 We thus look 

beyond the dictionary definitions of “necessary” and 

“proportional” to consider those terms in the context of “the statute 

as a whole,” Blondell, 341 Md. at 691, and, “to the extent possible,” 

reconciling and harmonizing those provisions, Dixon v. 

Department of Pub. Safety & Corr. Servs., 175 Md. App. 384, 409 

(2007). 

20 See also 85 Opinions of the Attorney General at 114-15, 117-18 

(interpreting the phrase “reasonable and necessary force” to essentially 

mean the same thing as “objectively reasonable” force under the 

Supreme Court’s Graham standard). But if one thing is clear from the 

history of the “necessary and proportional” standard (which we discuss 

below), it is that the General Assembly intended for the new standard to 

be stricter than the Graham standard. We thus do not view our earlier 

opinion as particularly illuminating as to the meaning of “necessary” in 

the new Use of Force Statute.
48 [107 Op. Att’y

2. The Statutory Context

In addition to limiting officers to the use of “necessary and 

proportional” force, the Use of Force Statute provides that, “when 

time, circumstances, and safety allow,” an officer shall “take steps 

to gain compliance and de-escalate conflict without using physical 

force.” 2021 Md. Laws, ch. 60 (to be codified at PS § 3-524(e)(1)). 

A police officer also must cease the use of force as soon as a suspect 

is under the officer’s control or no longer poses an imminent threat 

of physical injury or death, or as soon as the officer determines that 

“force will no longer accomplish a legitimate law enforcement 

objective.” Id. (to be codified at PS § 3-524(d)). 

These surrounding provisions, in our view, help inform what 

the General Assembly meant by “necessary and proportional.” See, 

e.g., Maguire v. State, 192 Md. 615, 623 (1949) (noting that “it is 

the most natural and general exposition of a statute to construe one 

part of the statute by another part of the same statute”). The 

provisions suggest that lawmakers wanted police officers to 

continually assess a situation and—when “time, circumstances, and 

safety allow,” 2021 Md. Laws, ch. 60 (to be codified at PS § 3-

524(e)(1))—to employ alternatives to the use of physical force that 

would achieve the same legitimate law enforcement objectives. 

Indeed, the statute specifically requires that police officers undergo 

training about “reasonable alternatives to decrease physical injury” 

and “options that are less likely to cause death or serious physical 

injury.” Id. (to be codified at PS § 3-524(h)). 

These other provisions of the Use of Force Statute imply that 

the phrase “necessary and proportional” has a meaning consistent 

with the words’ ordinary dictionary definitions. That is, the statute 

permits officers to use force only when they have no other 

reasonable and effective means of accomplishing a legitimate law 

enforcement objective. Moreover, the statute’s emphasis on deescalation suggests that the intensity of an officer’s use of force 

must correspond to the threat or the resistance that the officer 

confronts; that is, if the officer can reasonably and safely 

accomplish the objective in question with a lesser degree or amount 

of force, the officer should do so. 

We note, too, that the surrounding context makes clear that 

the statute governs a police officer’s behavior throughout an entire 

encounter with another person, not simply the moment the officer 

uses force. For example, if “time, circumstances, and safety” 

allow, the officer must “take steps to gain compliance and deescalate conflict without using physical force.” 2021 Md. Laws, 
Gen. 33] 49

ch. 60 (to be codified at PS § 3-524(e)(1)). This suggests a 

legislative intent to depart from the Graham standard, which, as 

noted above, focuses only on “the circumstances at the moment or 

moments directly proceeding the use of . . . force,” Hart, 167 Md. 

App. at 118, without considering the officer’s actions leading up to 

that moment, Richardson, 361 Md. at 456-57. Because we must 

construe “necessary and proportional” in the context of the statute 

as a whole, see, e.g., Spangler v. McQuitty, 449 Md. 33, 49 (2016), 

these neighboring provisions indicate that the propriety of a 

particular use of force will depend not only on the circumstances at 

the moment the officer uses force but, rather, the circumstances 

surrounding the entire encounter between the officer and the person 

against whom the officer uses force. 

B. Legislative History 

This understanding of “necessary and proportional” also finds 

support in the legislative history, which indicates that the 

Legislature relied, at least in part, on two existing sources when 

crafting the “necessary and proportional” standard: the selfdefense doctrine and the Baltimore Police Department’s use of 

force policy. Both of those sources incorporate the same basic 

understandings of necessity and proportionality. That is, force is 

necessary and proportional if the person using force cannot 

reasonably accomplish a lawful objective without the use of force, 

and the degree and amount of the force is not excessive in relation 

to the situation requiring the use of force. Other evidence from the 

legislative history, including statements by sponsors of Senate Bill 

71 (which became the Use of Force Statute) and related pieces of 

legislation, also leads to the same conclusion. 

1. Self-Defense Doctrine 

During the final hours of debate before the Senate approved 

Senate Bill 71, Senator Sydnor (the lead sponsor of the bill and the 

floor leader) responded to a question about whether the terms 

“necessary and proportional” were defined in current law by 

explaining that, “if you were to look at Maryland’s laws of selfdefense, you could find a body of law that kind of talks about 

‘necessary’ and ‘proportional’ there.” Senate Floor Proceedings 

No. 42, 2021 Leg., Reg. Sess., at 1:47:02-1:47:16 (Apr. 7, 2021). 

That statement by the bill’s sponsor suggests that the meaning of 

the terms in the self-defense context informed the meaning of 

“necessary and proportional” in the statute. Although such 

statements are “not conclusive on legislative intent,” they are 

“generally accorded some weight by the courts in determining the 
50 [107 Op. Att’y

meaning of a statute.” 87 Opinions of the Attorney General 106, 

113 n.6 (2002). “That is because floor leaders and bill sponsors 

tend to know the details of their bills better than other members, so 

other members will often rely on their explanations when deciding 

how to vote.” 103 Opinions of the Attorney General 18, 39 (2018) 

(citing Jack Schwartz and Amanda Stakem Conn, The Courts of 

Appeals at the Cocktail Party: The Use and Misuse of Legislative 

History, 54 Md. L. Rev. 432, 446 (1995)). We thus look to the selfdefense doctrine for further guidance on the meaning of “necessary 

and proportional” in the Use of Force Statute.

Before we do so, we wish to make clear at the outset that one 

cannot simply import the self-defense doctrine wholesale into the 

context of police use of force. “[T]here are,” after all, “some limits 

to the analogy” between self-defense and police use of force, 

because, unlike civilians, “officers cannot ‘call the police’ to avoid 

using force; they often are not permitted to retreat; they are trained 

and prepared to use force; and they routinely and legitimately 

initiate contact that subsequently requires force to be used.” 

Harmon, supra, at 1182-83. Indeed, the Use of Force Statute 

explicitly permits police officers to use force not just in defense of 

themselves or others but also to accomplish legitimate lawenforcement objectives more broadly. 

We note, however, that the concepts of necessity and 

proportionality are relevant not just as part of the self-defense 

doctrine but as components of various other justification defenses. 

2 Paul H. Robinson et al., Criminal Law Defenses § 121 (July 

2021) [hereinafter Crim L. Def.].21 These include the defense of 

others and the defense of property, id. §§ 133, 134, as well as the 

public authority justification defense, which courts in other states 

have sometimes interpreted to justify police use of force only when 

such force is “necessary” to carry out a legitimate law enforcement 

objective and “proportional[]” to “the gravity of the harm or evil 

threatened and the importance of the interest furthered,” id. § 142. 

Although there is no legislative history suggesting that members of 

the General Assembly were aware of that specific defense, it 

reinforces the fact that the concepts of necessity and proportionality 

are not foreign to the evaluation of the use of force by police 

officers, even if the concepts do not apply exactly the same way in 

every context. With these caveats in mind, we turn to the selfdefense doctrine. 

21

“Justification defenses describe conduct that, if not justified, would 

constitute an offense but, if justified, does not constitute criminal or 

wrongful conduct.” 2 Crim. L. Def. § 121.
Gen. 33] 51

The Maryland courts commonly describe the self-defense 

doctrine as a four-part test, which requires a defendant to establish 

that:

(1) the defendant actually believed that he or 

she was in immediate or imminent danger of 

bodily harm;

(2) the defendant’s belief was reasonable;

(3) the defendant must not have been the 

aggressor or provoked the conflict22; and

(4) the defendant used no more force than was 

reasonably necessary to defend himself or 

herself in light of the threatened or actual 

harm.

Jones v. State, 357 Md. 408, 422 (2000). 

These four elements incorporate the concepts of necessity and 

proportionality. First, the self-defense doctrine embodies the 

concept of necessity by requiring the defendant to show that the use 

of force was essential because the defendant reasonably feared 

“imminent peril,” Morris v. State, 4 Md. App. 328, 331 (1968), 

which was not of the defendant’s own making, Jones, 357 Md. at 

422. Indeed, the Maryland courts frequently emphasize that “the 

right to defend one’s self is based on necessity.” Bruce v. State, 

218 Md. 87, 96 (1958). 

The self-defense doctrine—in particular, the fourth element 

of the test—also requires the defendant to demonstrate that they 

“used no more force than the exigency required,” Sydnor v. State, 

365 Md. 205, 216 (2001) (quoting State v. Martin, 329 Md. 351, 

357 (1993)), which embodies the idea of proportionality by 

requiring a defendant to show that the degree and amount of the 

force that the defendant used was appropriate in relation to the 

severity of the threat of physical harm that required responsive 

force. See, e.g., Sydnor v. State, 133 Md. App. 173, 191-92 (2000), 

aff’d, 365 Md. 205 (2001) (noting that “the basis for lethal force 

dissipates” when a person no longer “is in danger of imminent 

death or serious bodily harm,” and that the person’s “response must 

be measured and directly proportional to any perceived threat that 

22 As already noted, officers often lawfully initiate contact that results 

in the use of force, a fact that we bear in mind as we consider what the 

self-defense doctrine tells us about the meaning of “necessary and 

proportional” in the context of police use of force. 
52 [107 Op. Att’y

does not rise to the level of being life threatening” (emphasis 

added)). Although courts often refer to this last element as another 

aspect of necessity,23 the concept involves the ordinary 

understanding of proportionality. See, e.g., Sydnor, 133 Md. App. 

at 185 (affirming a self-defense jury instruction that “any response 

to force or threat of force by [a] robber must be directly 

proportional” (emphasis added)). And because the General 

Assembly used both “necessary” and “proportional” in the Use of 

Force Statute, it does not matter for our purposes whether one 

considers the degree and amount of force a matter of necessity, one 

of proportionality, or a combination of the two. What matters is 

how courts have applied these principles to self-defense, given that 

those principles apparently informed the Legislature’s understanding 

of “necessary and proportional” in the Use of Force Statute.

One way that courts measure the necessity of force in selfdefense is to consider whether the defendant was the aggressor or 

provoked the conflict requiring the defendant’s use of force. Jones, 

357 Md. at 422. Of course, as already noted, the very nature of law 

enforcement means that police officers must sometimes initiate 

encounters that ultimately result in the use of force. We thus doubt 

that drafters of the Use of Force Statute intended to categorize as 

unnecessary any force that an officer uses simply because, for 

example, the officer initiated contact with a citizen. Nonetheless, 

in light of the broader statutory duty to “de-escalate conflict” and 

avoid using force when circumstances allow, 2021 Md. Laws, ch. 

60 (to be codified at PS § 3-524(e)(1)), we think it likely the 

General Assembly intended the necessity calculus to at least take 

into account, as part of the totality of the circumstances, an officer’s 

actions throughout the encounter, including whether, under those 

circumstances, the officer unnecessarily escalated the encounter. 

In other words, as in the self-defense context, determining whether 

a particular use of force is justified depends not just on the totality 

of the circumstances at the moment force is used but the circumstances 

throughout the entire encounter leading up to that moment.24

23 See, e.g., Belton v. State, __ Md. App. __, No. 0720, Sept. Term, 2020, 

2021 WL 6124241, at *15 (Dec. 28, 2021) (noting that a defendant must 

reasonably believe “that no more force is being employed in self-defense 

than is necessary to counteract the danger” (emphasis added)); Finnegan v. 

State, 33 Md. App. 251, 256 (1976) (“Where one blow may have been 

adequate to repel [the] victim, repeated blows to the head with a hammer 

went way beyond what was necessary for defense.” (emphasis added)).

24 That is not to say that an officer who unnecessarily escalates an 

encounter and then later uses force will always violate the new statutory 

standard. Rather, the officer’s actions leading up to the use of force are
Gen. 33] 53

As for measuring, within that broader window of time, 

whether force is necessary, the self-defense doctrine requires 

consideration of reasonable alternatives for achieving the same 

end. See, e.g., Bruce, 218 Md. at 97 (observing that “an attempted 

battery may be met by resisting force with force provided no 

unnecessary violence was used and proper measures were taken to 

avoid the conflict and escape from shedding blood” (emphasis 

added)). This includes weighing whether the defendant could 

reasonably have achieved the same goal without using force at all. 

For example, one principle of self-defense “is ‘the duty of the 

defendant to retreat or avoid danger’” before using deadly force “if 

such means were within his power and consistent with his safety.” 

Burch v. State, 346 Md. 253, 283 (1997) (quoting Bruce, 218 Md. 

at 97) (internal quotation marks omitted); accord Redcross v. State, 

121 Md. App. 320, 328 (1998) (noting that “the accused must make 

all reasonable efforts to withdraw from the encounter before 

resorting to the use of deadly force”). To be clear, we do not mean 

to suggest that the duty to retreat applies to police officers when 

attempting to perform their duties. The point is merely that the selfdefense doctrine encompasses consideration of reasonable 

alternatives to determine what is “necessary” under the totality of 

the circumstances. The availability of reasonable alternatives 

depends, however, on what the defendant could reasonably have 

discerned under the circumstances; the self-defense doctrine does 

not require the defendant to be omniscient and is not judged based 

on perfect hindsight. See Restatement (Second) of Torts § 63 cmt. 

j (Am. Law Inst. 1965) (explaining, under the similar doctrine of 

self-defense in tort law, that the defendant’s conduct is judged 

based on what the defendant knew or reasonably should have 

known at the time of the event, not based on what one might 

recognize to have been sufficient “after the event and when the 

emergency is past”).

The consideration of reasonable alternatives is also relevant 

to whether a defendant was justified in using a particular degree 

just one part of the totality of the circumstances. Under the self-defense 

doctrine, for example, “[a] nondeadly aggressor (i.e., one who begins an 

encounter, using only his fists or some nondeadly weapon) who is met 

with deadly force in defense may justifiably defend himself against the 

deadly attack.” Watkins v. State, 79 Md. App. 136, 139 (1989) (quoting 

Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 459 (2d ed. 

1986)). Thus, even if an officer makes a mistake that unnecessarily 

escalates an encounter, the propriety of the officer’s subsequent use of 

force will depend on the totality of the circumstances. Moreover, as 

noted above, criminal liability will require proof that the officer 

intentionally violated the standard. 
54 [107 Op. Att’y

and amount of force in self-defense. Thus, “if the threatened harm 

could otherwise be avoided through non-lethal measures,” “[a] 

killing in self-defense is not authorized.” 1 Jens David Ohlin, 

Wharton’s Criminal Law § 14:3 (16th ed.); see also Finnegan, 33 

Md. App. at 255-56 (noting that, “[w]here one blow may have been 

adequate to repel” an attacker, “repeated blows to the head with a 

hammer went way beyond what was necessary for defense”). 

Indeed, as the Court of Special Appeals recently explained in a case 

involving the use of deadly force:

In the doctrine of self-defense, the core fourth 

component of the paradigm is that the 

defendant shall not have used more force than 

was necessary to protect himself from 

imminent death or grievous bodily harm. 

Such protection is the only purpose of the law 

of self-defense. This fourth component of that 

paradigm recognizes that there may be other 

ways of achieving that life-saving purpose 

short of killing the would-be killer. It 

absolutely requires that the defendant 

consider those other options and find them to 

be unavailable before resorting to the extreme 

option of killing in self-defense. This is what 

is meant by the command that he exert no 

more force than is necessary. This does not 

mean simply two bullets instead of five. It is 

not simply a quantitative measure. It also 

means, qualitatively, avoiding bullets 

altogether if another and more peaceful option 

is available . . . . 

Belton, 2021 WL 6124241, at *18. 

As to proportionality in the self-defense context, then, the 

defendant must “use[] no more force than the exigency require[s].” 

Sydnor, 365 Md. at 216. That means that a defendant may not use 

a particular kind or degree of force “if he knows or should know 

that the apprehended harm can be prevented by the application of 

a force less in kind or degree.” Restatement (Second) of Torts § 70 

cmt. c (Am. Law Inst. 1965). But it does not mean that a defendant 

is “expected to measure accurately the exact amount of force 

necessary” to repel an attack. Id. (emphasis added); see also 

Restatement (Third) of Torts: Intentional Torts to Persons § 22 cmt. 

e (Am. Law Inst., Tentative Draft No. 6, 2021) (noting that, given 

the limited time for decision-making, “it is unrealistic to expect an 
Gen. 33] 55

actor to finely calibrate the force he or she uses in self-defense”). 

Rather, the defendant must use “no more force than was 

reasonably necessary,” Jones, 357 Md. at 422 (emphasis added); 

accord Baltimore Transit Co. v. Faulkner, 179 Md. 598, 601 

(1941) (noting that “[o]ne who seeks to justify an assault on the 

ground that he acted in self-defense must show that he used no 

more force than the exigency reasonably demanded”). 

Proportionality also entails an additional calculation, 

however—one that weighs the threat confronting an individual 

against the harm that may result from that individual’s use of force. 

Thus, even when a certain degree and amount of force may be 

“necessary to protect or further the interest at stake,” the use of 

force will not be justified if the harm likely to be caused by that 

force (based on what is reasonably known at the time) is “too severe 

in relation to the value of the interest.” See 1 Crim. L. Def. § 24 

(emphasis omitted). In other words, while the principles of 

necessity and proportionality require that “the least coercive means 

to achieve a given legitimate end be used,” proportionality also 

“tests whether those means are worth it—whether the end is 

important enough to justify the cost of achieving it.” Harmon, 

supra, at 1178; see also 2 Crim. L. Def. § 131. As one 

commentator has explained:

This [proportionality] requirement ensures 

that the harm caused by a defender’s response 

is reasonable in relation to the importance of 

the societal interest at stake, even if a greater 

response would be necessary to protect that 

interest. . . . [Even] [i]f the only way to stop 

a fleeing purse thief is to kill him, the use of 

force is not justified.

Harmon, supra, at 1178; see also 2 Crim. L. Def. § 131 (making a 

similar point).25

Although Maryland’s four-factor test for self-defense does 

not expressly mention this additional component of proportionality,

25 This aspect of proportionality is not unfamiliar to police use of 

force; indeed, the Supreme Court in Garner applied this principle in 

concluding that an officer was not justified in fatally shooting a fleeing 

suspected thief. See Garner, 471 U.S. at 11; see also, e.g., Brandon 

Garrett & Seth Stoughton, A Tactical Fourth Amendment, 103 Va. L. 

Rev. 211, 216 (2017) (recognizing that the Garner Court “ruled that law 

enforcement could only use force proportionate to the threat faced by 

officers or the public”).
56 [107 Op. Att’y

Maryland courts have implicitly recognized the principle by, for 

example, authorizing the use of deadly force to defend oneself or 

others but not to defend property. See, e.g., Sydnor, 365 Md. at 

218-19 (noting that a robbery victim may use deadly force only 

when “necessary to avoid imminent danger of death or serious 

bodily harm” and not “in defense of property”). Similarly, 

Maryland courts have said that the amount of responsive force must 

be “reasonably related to the threatened harm which” the person 

“seeks to avoid,” Shuck v. State, 29 Md. App. 33, 37-38 (1975) 

(citation omitted), a rule that encompasses this second aspect of 

proportionality by, among other things, prohibiting deadly force 

from being used to repel an attack unless the person being attacked 

reasonably believes that the attack will cause death or serious 

bodily injury. See, e.g., Sydnor, 365 Md. at 218-19; see also 

Johnson v. State, 223 Md. App. 128, 149-50 (2015) (concluding 

that, by hitting someone who unintentionally spit on her, the 

defendant used “unreasonable and excessive” force and failed to 

satisfy the fourth factor of the self-defense test); 2 Crim. L. Def. 

§ 131 (explaining that, even when the use of deadly force would be 

the only way under the circumstances for someone to stop a minor 

battery that would not result in death or serious bodily injury, the 

proportionality requirement forbids deadly force from being used).

We thus infer from the way that the concepts of necessity and 

proportionality apply in self-defense cases, and building on our 

reading of dictionary definitions and the broader statutory context, 

that the propriety of a particular use of force depends in part on the 

availability of reasonable alternatives. Only when there is no 

reasonable way other than the use of force to safely accomplish a 

legitimate law enforcement objective may an officer use force, and 

even then, the officer may use no greater degree or amount of force 

than the situation reasonably demands. Finally, an officer may not 

use force if the harm that will likely result is too severe in relation 

to the value of the interest that the officer seeks to protect through 

the use of force.

2. The Baltimore Police Department’s Use of Force 

Policy

This understanding of “necessary and proportional” force is 

also consistent with the way those concepts apply in the Baltimore 

Police Department’s use of force policy, which requires officers to 

use “only the force Reasonable, Necessary, and Proportional to 

respond to the threat or resistance to effectively and safely resolve 

an incident,” BPD Use of Force Policy at 1, and which inspired, at 

least in part, the State’s new “necessary and proportional” standard.
Gen. 33] 57

Before and during the 2021 legislative session, Maryland 

lawmakers heard from advocates and legislative staff about various 

use of force standards that police departments nationally and 

legislatures in other states have adopted. See, e.g., Meeting of 

Workgroup to Address Police Reform and Accountability in 

Maryland, at 1:56:46-1:57:16 (July 16, 2020) (statement of Samuel 

Sinyangwe, Policy Analyst and Data Scientist, Human Rights Data 

Analysis Group) (referencing police use of force policies in the 100 

largest cities in the country); Voting Session on S.B. 626 Before the 

Senate Judicial Proceedings Comm., 2021 Leg., Reg. Sess., at 

0:56:00-0:56:16 (Feb. 24, 2021) (statement of Sen. Waldstreicher) 

(referring to a 50-state survey prepared by the National Conference 

of State Legislatures). 

One particular policy—that of the Baltimore Police 

Department (“BPD”)—appears to have influenced drafters of the 

“necessary and proportional” language in the Maryland Use of 

Force Statute. In the months leading up to the 2021 legislative 

session, during meetings of a bipartisan workgroup of House 

members studying police reform proposals, Delegate Curt 

Anderson repeatedly suggested that the BPD policy serve as a 

“boilerplate for a statewide use of force policy.” See, e.g., Meeting 

of Workgroup to Address Police Reform and Accountability in 

Maryland, at 1:27:40-1:28:58 (June 23, 2020) (statement of Del. 

Anderson); Meeting of Workgroup to Address Police Reform and 

Accountability in Maryland, at 10:27-11:42 (Oct. 1, 2020) 

(statement of Del. Anderson) (advocating for a statutory standard 

based on the BPD policy). 

Another member of the workgroup, Delegate Debra Davis, 

introduced House Bill 139, which, like BPD’s policy, would have 

required force to be necessary and proportional, and used language 

substantially similar to that which was ultimately adopted in the 

Maryland Use of Force Statute:

A law enforcement officer may not use force 

against a person unless the force is necessary 

force and proportional to: 

(i) prevent an imminent threat of physical 

injury to a person; or

(ii) effectuate an arrest of a person who the 

officer has probable cause to believe has 

committed a criminal offense, taking into 

consideration the seriousness of the 

underlying offense.
58 [107 Op. Att’y

H.B. 139, 2021 Leg., Reg. Sess. (First Reader). In testifying in 

support of the bill, Delegate Davis highlighted BPD’s policy, 

saying the department “should be commended for setting such a 

high standard.” Hearing on H.B. 139 Before the House Judiciary 

Comm., 2021 Leg., Reg. Sess., at 1 (Feb. 5, 2021) (written 

testimony of Del. Davis). 

The gist of House Bill 139’s “necessary and proportional” 

standard was transferred to House Bill 670,26 and eventually, to 

Senate Bill 71, which became the Maryland Use of Force Statute.27 

Senator Jill P. Carter, a sponsor of Senate Bill 71 (and another bill 

that was cross-filed with House Bill 139), emphasized that the same 

terms, “necessary” and “proportional,” appear in BPD’s use of 

force policy. Senate Floor Proceedings No. 42, 2021 Leg., Reg. 

Sess., at 5:38:29-5:39:24 (Apr. 7, 2021) (statement of Sen. Carter). 

We thus look to that policy for guidance on what “necessary” and 

“proportional” mean in the Maryland Use of Force Statute.

As an initial matter, BPD’s use of force policy defines force 

as “necessary” “only when no reasonably effective alternative 

exists.” BPD Use of Force Policy at 4. That definition is consistent 

26 House leaders decided early in the session that House Bill 670, an 

omnibus bill that the Speaker introduced at the workgroup’s request, 

would serve as their vehicle for police reform. See H.B. 670, 2021 Leg., 

Reg. Sess. (First Reader); Work Session of the House Judiciary Comm., 

Public Safety Subcomm., at 2:19-2:55 (Feb. 17, 2021) (statement of Del. 

Atterbeary). As introduced, House Bill 670 would have allowed a police 

officer to “only use the force that is objectively reasonable and appears 

to be necessary under the circumstances in response to the threat or 

resistance by another person.” H.B. 670, 2021 Leg., Reg. Sess. (First 

Reader). The House amended the bill to incorporate House Bill 139’s 

“necessary” and “proportional” standard, changing only the word “law 

enforcement officer” to “police officer.” See House Floor Proceedings 

No. 20-B, 2021 Leg., Reg. Sess., at 28:11-30:17 (Mar. 9, 2021) 

(statement of Del. Clippinger); Amend. No. 992612/1, H.B. 670, 2021 

Leg., Reg. Sess., at 62 (House Judiciary Comm.).

27 Amend. No. 668370/1, H.B. 670, 2021 Leg., Reg. Sess., at 1, 7 

(Senate Judicial Proceedings Comm.) (removing the use of force 

provisions from House Bill 670); Senate Floor Proceedings No. 37, 2021 

Leg., Reg. Sess., at 51:03-51:07 (Mar. 31, 2021) (adopting the 

committee’s amendments to House Bill 670); 2:30 p.m. Voting Session 

on S.B. 71 Before the House Judiciary Comm., at 42:00-43:44 (Apr. 1, 

2021) (statement of Del. Clippinger) (noting that Senate Bill 71, as 

amended, includes substantially the same use of force standard that the 

House passed in House Bill 670). Although the language underwent 

further amendments, both “necessary” and “proportional” remained in 

the final legislation.
Gen. 33] 59

with the ordinary meaning of the term and the way that necessity 

has long been understood in the self-defense context, i.e., that 

necessity depends on whether there are reasonable alternatives to 

using force that will effectively accomplish the same ends. Indeed, 

the BPD policy expressly provides that, “unless it is not possible to 

do so,” officers “shall . . . avoid the [u]se of [f]orce by using” nonforce alternatives like “[d]e-[e]scalation [t]echniques,” including 

“verbal persuasion and warnings, slowing down the pace of an 

incident, waiting out persons, using barriers, creating distance . . . 

and requesting additional resources.” Id. at 6. 

The BPD policy also incorporates the concept of 

proportionality. Under BPD’s policy, force is “proportional” if it 

“is rationally related to the level of resistance or aggression 

confronting the” police officer. Id. at 4. The policy further requires 

force to be “[r]easonable” and then defines what is “[r]easonable” 

by reference to the amount of force used in a way that also evokes 

proportionality: “A[n] [officer] uses Reasonable Force when the 

[officer] uses no more force than required to perform a lawful 

purpose.” Id.28 Thus, for example, an officer may use deadly force 

under BPD’s policy in response to an apparent imminent threat of 

death or serious physical injury, id. at 8, but only as “the last resort” 

after an officer has “exhausted de-escalation . . . and [l]ess-[l]ethal 

[f]orce options” or determined that those options are not safe 

“based on the [t]otality of [c]ircumstances.” Id. at 7-8. The policy, 

in line with the second aspect of proportionality, also prohibits the 

use of deadly force merely to protect property and authorizes 

deadly force against a fleeing suspect only if the escape of the 

suspect would present an imminent threat of serious physical injury 

or death to a person. Id. at 8. 

3. Other Legislative History

We draw further support for our interpretation from the 

statements of individual lawmakers and the language in other use 

of force bills that the General Assembly considered during the 2021 

legislative session. See, e.g., State v. Phillips, 457 Md. 481, 488 

(2018) (noting that the “views expressed by individual members of 

28 Although Maryland’s Use of Force Statute does not use the term 

“reasonable,” we do not think that makes a difference in how to 

understand the concepts of necessity or proportionality. In our view, the 

General Assembly likely avoided using the word “reasonable” to avoid 

confusion with the Supreme Court’s less strict “reasonable officer” 

standard under Graham, and the Legislature likely thought that 

“reasonable” as defined in BPD’s policy was already included within the 

ordinary meaning of what is “necessary and proportional.” 
60 [107 Op. Att’y

the legislative . . . body as part of the debate may [sometimes] be 

considered” as evidence of legislative intent); Witte v. Azarian, 369 

Md. 518, 525-26 (2002) (recognizing that “the legislative history, 

including the derivation of the statute,” may reveal “the true 

legislative intent”). As noted above, we accord particular weight 

to the statements of bill sponsors and floor leaders as compared to 

other members of the Legislature. E.g., 103 Opinions of the 

Attorney General at 39.

Senator Sydnor, the lead sponsor of the bill that became the 

Use of Force Statute, described it as a “compilation bill” that 

incorporated ideas from other legislation, including Senator 

Carter’s “initial bill that had the initial use of force standard.” 

Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., at 

5:45:49-5:46:12 (Apr. 7, 2021) (statement of Sen. Sydnor). 

Senator Carter’s bill (Senate Bill 626) would have allowed an 

officer to use only “necessary force” and would have required the 

officer to cease the use of force if it was “no longer reasonable and 

proportional to accomplish[] a legitimate law enforcement 

objective.” S.B. 626, 2021 Leg., Reg. Sess. (First Reader). In 

testimony in support of her bill, Senator Carter argued that an 

officer should be able to “use physical force only after persuasion, 

advice and warning has been exhausted,” and then, “only the 

minimum degree [of force] necessary.” Hearing on S.B. 626 Before 

the Senate Judicial Proceedings Comm., 2021 Leg., Reg. Sess., at 

4:20:27-40:20:40 (Feb. 4, 2021) (statement of Sen. Carter). 

Although she characterized this as a standard of “absolute 

necessity,” Hearing on S.B. 626 Before the Senate Judicial 

Proceedings Comm., 2021 Leg., Reg. Sess. (Feb. 4, 2021) (written 

testimony of Sen. Carter, at 1), her bill would have required only 

that an officer exhaust “reasonable alternative[s]” before using 

force. S.B. 626, 2021 Leg., Reg. Sess. (First Reader) (emphasis 

added). Most importantly for our purposes, the bill defined 

“necessary force” to mean “force such that, under the totality of the 

circumstances, there is no reasonable alternative to the use of the 

degree or level of force,” and defined “proportional” to mean “not 

excessive in relation to a direct and legitimate law enforcement 

objective.” Id. 

Similarly, House Bill 139, which we discussed above, was 

cross-filed with Senate Bill 626, and defined “necessary force” by 

reference to whether there would be “reasonable alternative[s]” to 

a police officer’s use of force under the circumstances. See H.B 

139, 2021 Leg., Reg. Sess. (First Reader). The bill also used the 

same definition of “proportional” as did Senate Bill 626: “not 
Gen. 33] 61

excessive in relation to a direct and legitimate law enforcement 

objective.” Id.

While neither Senate Bill 626 nor House Bill 139 became 

law,29 we find their definitions of “necessary” and “proportional” 

helpful in understanding what lawmakers intended when they 

eventually used the same terms in the Maryland Use of Force 

Statute. Senator Sydnor indicated that the statutory language owed 

much to the “initial standard” in Senate Bill 626, which was crossfiled with House Bill 139. Although the General Assembly did not 

incorporate either bill’s express definitions in the final legislation, 

the relevant committees were aware of those definitions, and there 

is nothing in the legislative record suggesting that lawmakers 

intended a drastically different meaning of those words. Perhaps 

the Legislature decided that no express definitions of the terms 

were needed, given the terms’ ordinary meanings and the way the 

terms had already been fleshed out in other contexts, such as in the 

self-defense doctrine and the BPD’s use of force policy. 

Lawmakers’ statements throughout the legislative session 

also reinforce our understanding of the phrase “necessary and 

proportional” in the Use of Force Statute. Several lawmakers 

indicated that the standard they sought to adopt was more 

restrictive than the Graham standard, which, as noted above, 

requires only that an officer’s use of force “fall[] within a range of 

conduct which is objectively ‘reasonable’ under the Fourth 

Amendment’” and does not consider “whether there [a]re other 

alternatives available.” Richardson, 361 Md. at 455 (quoting Schulz, 

44 F.3d at 649). In adopting a “necessary” standard, lawmakers said 

that they aimed to “raise[] the standard substantially,”30 by allowing 

29 “[T]he failure of a single bill in the General Assembly may be due 

to many reasons.” Moore v. State, 388 Md. 623, 641 (2005). Although 

it may sometimes be evidence of legislative intent, id., here, as already 

noted, see supra note 26, House Bill 139 likely failed to proceed simply 

because House leaders designated other bills, including House Bill 670, 

as the vehicles for police reform legislation. As for Senate Bill 626, 

senators amended the legislation to prohibit a police officer from 

intentionally using “excessive force,” which was defined as “force that 

an objectively reasonable law enforcement officer would conclude 

exceeds what is necessary to gain compliance, control a situation, or 

protect a law enforcement officer or others from harm, under the totality 

of the circumstances.” S.B. 626, 2021 Leg., Reg. Sess. (Third Reader). 

The amended bill passed the Senate but was never adopted by the House.

30 Police Reform Work Session, Senate Judicial Proceedings Comm., 

2021 Leg., Reg. Sess., at 58:06-58:17 (Mar. 25, 2021) (statement of Sen. 
62 [107 Op. Att’y

officers to use force only “as a last resort.”31 For example, as 

explained by the legislator who served as the chair of the 

workgroup that had met to discuss police reform before the 2021 

session: “What we are saying here is that officers should not jump 

immediately to the top of the use of force continuum when trying 

to apprehend a suspect.” House Floor Proceedings No. 21-A, 2021 

Leg., Reg. Sess., at 2:25:02-2:25:27 (Mar. 10, 2021) (statement of 

Del. Atterbeary). It thus appears from the legislative history that 

lawmakers understood force to be “necessary” when an officer has 

no reasonable non-force alternative to accomplish a legitimate law 

enforcement objective safely and effectively. 

By also requiring force to be “proportional,” lawmakers 

further expressed an intent to ensure that a police officer would use 

no greater degree or amount of force than a situation requires. In 

the words of Senator Carter,

it may be necessary to use force, but it may 

not be necessary to use a gun where there’s 

. . . an unarmed person, or it probably could 

be handled with something less than a shot. 

So, when I say “proportional,” I’m concerned 

because, you know, it could be – force could 

be absolutely warranted, justified, necessary. 

But I’m concerned about the leeway, the great 

latitude [that] might leave for – there’s a world 

of difference in levels of force.

Voting Session on S.B. 626 Before the Senate Judicial Proceedings 

Comm., 2021 Leg., Reg. Sess., at 58:22-59:17 (Feb. 24, 2021) 

(statement of Sen. Carter). 

Similarly, Delegate Debra Davis (the sponsor of H.B. 139) 

said that “proportional force” is “the amount of force that is 

necessary to defuse the situation.” Work Session of the House 

Judiciary Comm., Public Safety Subcomm., at 1:04:10-1:04:28 

(Mar. 2, 2021) (statement of Del. Davis). She explained that, in 

her view, once an officer “decide[s] that it’s necessary” to use 

Waldstreicher, a sponsor of Senate Bill 71) (referring, in a discussion of 

House Bill 670, to the “necessary” standard initially adopted by the 

Senate).

31 Hearing Before the Senate Judicial Proceedings Comm., at 44:30-

46:25 (Sept. 22, 2020) (statement of Sen. Carter, another sponsor of 

Senate Bill 71) (advocating for a “necessary” standard in hearings before 

the start of the 2021 legislative session).
Gen. 33] 63

force, the officer “can’t shoot nobody with a cell phone in their 

hand. That’s not proportional.” Id. at 1:06:14-1:06-20. As she put 

it:

Establish what your law enforcement 

objective is, and then you decide . . . what’s 

the minimal amount of force that you need to 

obtain that . . . legitimate law enforcement 

objective.

Id. at 1:06:48-1:07:10.

C. Use of Force Policies and Best Practices from Around the 

Country

Finally, we consider the broader context of policing and how 

others have used the terms “necessary” and “proportional” in 

policies and standards governing police officers’ use of force. See, 

e.g., Government Emps. Ins. Co. v. Insurance Comm’r, 332 Md. 

124, 131-32 (1993) (recognizing that statutory text must be 

construed “in light of the context in which the statute appears,” and 

noting that “[c]ontext may include related statutes, pertinent 

legislative history and other material that fairly bears on the 

fundamental issue of legislative purpose” (internal quotation 

omitted)). 

The concepts of necessity and proportionality have long been 

a part of the national conversation about police use of force. In 

2014, as part of a consent decree with the United States Department 

of Justice, the Seattle Police Department enacted a new use of force 

policy that requires officers to “use only the force necessary to 

perform their duties” and such force that is “proportional to the 

threat or resistance of the subject under the circumstances.” Seattle 

Police Dep’t, Use of Force Policy, at 1 (Jan. 1, 2014); see Order 

Approving Consensus Use of Force Policies, United States v. City 

of Seattle, No. C12-1282JLR (W.D. Wash. Dec. 17, 2013), ECF 

No. 115. In 2016, the Police Executive Research Forum issued its 

Guiding Principles on Use of Force, which sanction officers to 

“use force that is necessary to mitigate a threat to the safety of 

themselves or others” but ask officers to assess “whether a response 

is proportional to the threat being faced.” PERF, Guiding 

Principles, at 33, 38. Since then, several law enforcement agencies 

have authorized officers to use only necessary and proportional 

force, and other entities like the American Law Institute and the 

Policing Project at the New York University School of Law have 
64 [107 Op. Att’y

published guidance with similar language.32 And in March 2021, 

as Maryland lawmakers debated a new use of force statute, the 

United States House of Representatives passed the George Floyd 

Justice in Policing Act of 2021 (“George Floyd Act”), which, if 

enacted, would prohibit a federal law enforcement officer from 

using non-lethal force except when “necessary and proportional in 

order to effectuate an arrest” and would define “necessary” to mean 

“that there was no reasonable alternative to the use of force.” H.R. 

1280, 117th Cong. § 364(b)(2).33 

These various authorities define necessity and proportionality 

consistent with our reading of the Maryland Use of Force Statute. 

That is, as to necessity, the use of force is necessary only if the 

officer has no other reasonable means under the circumstances to 

prevent imminent physical harm or accomplish another legitimate 

law enforcement objective. For example, the Seattle Police 

Department defines “necessary” to mean “that no reasonably 

effective alternative to the use of force appeared to exist.” Seattle 

Police Dep’t, Manual § 8.050 (Apr. 15, 2021) (adopting the 

statutory definition of “necessary” that applies to criminal defenses 

generally under Washington law and which further defines 

“necessary” to mean that “the amount of force used was reasonable 

to effect the lawful purpose intended,” Wash. Rev. Code 

§ 9A.16.010) [hereinafter Seattle Manual]. Similarly, California 

law directs police officers, “[i]n determining whether deadly force 

is necessary,” to “evaluate each situation in light of the particular 

circumstances” and to “use other available resources and 

techniques if reasonably safe and feasible.” Cal. Penal Code 

§ 835a(a)(2); see also New Jersey Policy, supra, at ii (providing 

that “[f]orce shall only be used as a last resort when necessary to 

32 See Chicago Police Dep’t, General Order G03-02: Use of Force 1 

(2017) [hereinafter Chicago Policy]; Berkeley Police Dep’t, Policy 300: 

Use of Force 1 (2021); Conn. Police Officer Standards & Training 

Council, Use of Force Policy 1, 5 (2020) [hereinafter Connecticut 

Policy]; N.J. Office of the Att’y Gen., Use of Force Policy ii, 6 (2020) 

[hereinafter New Jersey Policy]; Principles of the Law, Policing §§ 5.01, 

5.02, 5.04 (Am. Law Inst., Tentative Draft No. 1, 2017); N.Y. Univ. Sch. 

of Law, Policing Project, An Act Regulating the Use of Force by Law 

Enforcement Officers 3, 17 (Jan. 27, 2022).

33 The federal bill also has a separate limitation on the use of deadly

force. H.R. 1280, 117th Cong. § 364(b)(3) (2021). It appears that at 

least some members of the General Assembly were aware of the George 

Floyd Act. See Voting Session on S.B. 626 Before the Senate Judicial 

Proceedings Comm., 2021 Leg., Reg. Sess., at 1:12:48-1:13:26 (Feb. 24, 

2021) (statement of Sen. Carter) (referring to the use of force standard in 

the George Floyd Act).
Gen. 33] 65

accomplish lawful objectives that cannot reasonably be achieved 

through verbal commands, critical decision making, tactical 

deployment or de-escalation techniques”). As the drafters of the 

American Law Institute’s principles of policing have observed, 

“[f]orce cannot be considered necessary if a reasonable and 

reasonably efficient alternative means [other than using force] 

exists for achieving the same law-enforcement ends.” Principles 

of the Law, Policing § 5.02 cmt. a (Am. Law Inst., Tentative Draft 

No. 1, 2017).

Similarly, as to proportionality, the authorities consistently 

describe the requirement as a metric for determining, in cases when 

force is necessary, what degree and amount of force is appropriate 

in light of the law enforcement objective that the officer aims to 

accomplish. For example, the Police Executive Research Forum 

explains that “[p]roportionality requires officers to consider if they 

are using only the level of force necessary to mitigate the threat, 

and whether there is another, less injurious option available that 

will safely and effectively achieve the same objective.” PERF,

Guiding Principles, at 21; see also Chicago Policy, supra, at 2 

(“The greater the threat and the more likely that the threat will 

result in death or serious physical injury, the greater the level of 

force that may be necessary to overcome it. When or if the subject 

offers less resistance, however, the member will decrease the 

amount or type of force accordingly.”). 

In reducing these ideas to a definition, authorities variously 

describe “proportional” force as “that . . . reasonably necessary to 

overcome the level or resistance, aggression, or threat an officer 

confronts,”34 “an appropriate level of force” in light of the “totality 

of circumstances,”35 or the “minimum amount of force” required to 

carry out a legitimate law enforcement objective.36 Although the 

exact wording of those definitions differ, they stand for the same 

basic proposition: the degree and amount of force must correspond 

to, and be appropriate in light of, the threat or resistance facing the 

officer or the objective that the officer is attempting to accomplish. 

The authorities also make clear, however, that “the term 

proportional force is not intended to mean a type and intensity of 

34 Connecticut Policy, supra, at 2.

35 Seattle Manual, supra; accord San Francisco Police Dep’t, General 

Order: Use of Force 2 (2016).

36 New Jersey Policy, supra, at v; Indianapolis Metro. Police Dep’t, 

General Order 1.30: Use of Force—Principles 2 (2020).
66 [107 Op. Att’y

force that is exactly equal to the type and intensity of force being 

used by the subject” of the officer’s responsive force.37

Finally, a number of authorities incorporate the second aspect 

of proportionality, which weighs the harm likely to result from an 

officer’s use of force against the value of the interest that the officer 

seeks to protect. According to the American Law Institute, for 

example, proportionality “requires that the risk of harm faced by a 

person correspond in degree to the seriousness of the public interest 

that is being served by the use of force.” Principles of the Law, 

Policing § 5.04 cmt. a (Am. Law Inst., Tentative Draft No. 1, 2017). 

It thus appears that use of force policies and best practices from 

around the country have applied the concepts of necessity and 

proportionality consistent with our reading of the Maryland Use of 

Force Statute. 

D. How to Determine Whether Force Is “Necessary and 

Proportional” Under the Use of Force Statute

Considering all this evidence—the dictionary definitions of 

“necessary” and “proportional”; the broader statutory context; the 

legislative history; and how necessity and proportionality apply in 

the self-defense doctrine, the BPD’s use of force policy, and

standards from around the country—we conclude that “necessary 

and proportional” force involves three core principles. First, the 

use of force is not “necessary” unless there is no reasonable 

alternative to using force that, under the circumstances, would

safely and effectively achieve the same legitimate ends. Second, 

even when the use of some force is necessary, the degree and 

amount of force must correspond to, and be appropriate in light of, 

the objective that the officer aims to achieve. Third, the 

proportionality requirement further prohibits an officer from using 

force if the harm likely to result is too severe in relation to the value 

of the interest that the officer seeks to protect. 

But what does this mean in practice? As an initial matter, we 

reiterate that there is criminal liability for a violation of the standard 

only if the violation is intentional and leads to death or serious 

bodily harm. 2021 Md. Laws, ch. 60 (to be codified at PS § 3-

524(i)). We also reiterate that a standard like this cannot be 

37 New Jersey Policy, supra, at v; see also Chicago Policy, supra, at 

2 (recognizing that force “proportional to the threat, actions, and level of 

resistance offered by a subject” “may include using greater force or a 

different type of force than that used by the subject”); accord Seattle 

Manual, supra (“Proportional force does not require officers to use the 

same type or amount of force as the subject.”). 
Gen. 33] 67

“reduced to a formula” and is “not amenable to a precise 

definition,” as it necessarily depends on “the specific 

circumstances encountered by the officer” on the scene. Cf. 84 

Opinions of the Attorney General at 105, 114. Inevitably, the 

courts will have to flesh out details of the standard when 

considering specific cases. We can, however, provide some 

guidance. 

First, as to necessity, the requirement means that, as a 

practical matter, an officer will sometimes—when circumstances 

allow—have to employ reasonable non-force alternatives before 

resorting to any use of physical force. Such reasonable alternatives 

to the use of force might include, for example, de-escalation 

techniques such as “talking to a person using a tone of voice and 

language that is not aggressive or confrontational,” “creating space 

or placing barriers between the [officer] and the person,” or 

“tactical[ly] repositioning and requesting additional resources.” 

BPD Use of Force Policy at 3. In some cases, this might even, in 

effect, require an officer to prolong an encounter to attempt various 

non-force options. See New Jersey Policy, supra, at 3 (recognizing 

that de-escalation techniques may “create the time needed to allow 

the situation to resolve itself”). 

Naturally, however, the reasonableness of such non-force 

alternatives will depend on the totality of circumstances of a 

particular situation based on what was known or reasonably should 

have been known at the time. If an alternative to the use of force 

is not feasible or safe, or if it will not accomplish the officer’s 

legitimate law enforcement objective, the alternative is not 

reasonable, and the officer need not attempt it before using force.38 

Similarly, an officer might not always have sufficient time to attempt 

or even to consider non-force alternatives. See Restatement (Third) 

of Torts: Intentional Torts to Persons § 22 cmt. f (Am. Law Inst., 

Tentative Draft No. 6, 2021) (recognizing, in the tort context, that 

an apparent threat of force may be “sufficiently sudden and 

inescapable that the defendant is justified in responding with 

defensive force without pausing to carefully consider other 

options”). And because the law does not require omniscience, an 

officer is not expected to pursue an alternative of which the officer 

is reasonably not aware. Cf. Redcross, 121 Md. App. at 328 

38 The statute requires training on “enforcement options that are less 

likely to cause death or serious physical injury, including scenario-based 

training, de-escalation tactics and techniques, and reasonable 

alternatives to decrease physical injury.” 2021 Md. Laws, ch. 60 (to be 

codified at PS § 3-524(h)). That training will help make these types of 

determinations easier for officers. 
68 [107 Op. Att’y

(recognizing that, under the self-defense doctrine, a person need 

not use a means of escape that is unknown to the person). On the 

other hand, if an officer has reasonable alternatives to the use of 

force but, instead of pursuing them, needlessly escalates a situation, 

the officer’s subsequent use of force might not be “necessary,” 

depending on the totality of the circumstances. See, e.g., BPD Use 

of Force Policy at 7 (providing that officers “shall not use tactics 

that unnecessarily escalate an encounter or create a need for force” 

(emphasis omitted)). 

Second, as for determining what particular degree and amount 

of force may be justified, that too will depend on the totality of the 

circumstances. Proportionality does not, as some members of the 

Legislature apparently feared,39 limit an officer to using the exact 

same type and amount of force that an attacker uses. See footnote 

37, supra. Rather, the first component of proportionality means 

that an officer must use no more force than is reasonably required 

to protect a person from physical injury or to accomplish another 

legitimate objective. Thus, for example, deadly force may be used 

only “when the exigency demands it, to resist the imminent danger 

of death or serious bodily harm,” Sydnor, 365 Md. at 220 n.4. 

Although that rule generally “precludes ‘the use of a deadly 

weapon against an unarmed assailant,’” Lambert v. State, 70 Md. 

App. 83, 93 (1987) (quoting LaFave & Scott, supra, at 456-57), it 

would allow an officer to respond to a threat that is deadly (even a 

threat coming from a suspect’s fists, if it qualifies as deadly under 

the unique circumstances of the situation) with deadly force (which 

could include the use of a deadly weapon).40 Similarly, with 

39 See Voting Session on S.B. 626 Before the Senate Judicial 

Proceedings Comm., 2021 Leg., Reg. Sess., at 55:06-56:00 (Feb. 24, 

2021) (statement of Sen. Waldstreicher) (suggesting that “a five-foot 

woman” officer “getting beat down by a six-five, 300-pound man” would 

not be using proportional force if she shot the man, even if she 

‘believe[d] reasonably and objectively that her life [was] in danger,” 

because he would be “using his fists” and she would be using a gun); 

Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., at 2:40:48-

2:41:08 (Apr. 7, 2021) (statement of Sen. Cassilly) (suggesting that 

proportionality would require an officer to respond only with fists, and 

engage “in the old wrestling match,” in response to “a big guy who can 

beat the ever-loving snot out” of the officer, “coming at” the officer). 

40 See id. at 93 (noting that it “is not inevitably the case” that a 

defendant may not use a deadly weapon against an unarmed assailant 

because “account must be taken of the respective sizes and sex of the 

assailant and defendant, of the presence of multiple assailants, . . . of the 

especially violent nature of the unarmed attack” and whether an 

assailant’s “[p]ast violent conduct” is “known by the defendant”). 
Gen. 33] 69

respect to non-lethal force, an officer may not use more force than 

is reasonably required under the circumstances. Cf. Faulkner, 179 

Md. at 601 (noting that the self-defense doctrine requires proof that 

the actor “used no more force than the exigency reasonably 

demanded”). 

This does not mean that an officer must “precisely calibrate 

the [exact] amount of force that will solve a problem,” Harmon, 

supra, at 1174, particularly in a high-pressure situation when a 

split-second decision must be made. After all, what is “necessary 

and proportional” depends on the “totality of the circumstances,” 

2021 Md. Laws, ch. 60 (to be codified at PS § 3-524(d)(1)), which 

may include “the exigency in which the actor is placed . . . , and the 

necessity for a rapid decision,” Restatement (Second) of Torts § 70, 

cmt. c (Am. Law Inst. 1965) (discussing the character and extent 

of force permissible in self-defense). Thus, although it will 

sometimes be necessary for an officer to employ non-force 

alternatives before resorting to the use of force, we do not read the 

Use of Force Statute to require officers to always try each lessintensive option to see if it will work, or to always think through 

every conceivable alternative on a mental checklist before resorting 

to force that is appropriate under the totality of the circumstances. 

Likewise, an officer does not violate the standard by using an 

appropriate degree or kind of force but applying slightly more of 

that kind of force than might have been strictly required to 

accomplish the officer’s objective in hindsight. See Restatement 

(Second) of Torts § 70 cmt. c; see also Restatement (Third) of 

Torts: Intentional Torts to Persons § 22 cmt. e (Am. Law Inst., 

Tentative Draft No. 6, 2021) (recognizing that, under the tort selfdefense doctrine, an “actor is not subject to liability simply because 

he or she shoved the aggressor with slightly greater force than the 

aggressor was employing or threatening”).

Third, the second component of proportionality means that an 

officer might have to delay or even abandon a law-enforcement 

objective if the only way to accomplish the objective is through 

using force that, under the totality of the circumstances, would 

likely result in harm that far exceeds the value of the interest that 

the officer seeks to protect through the use of force. As one set of 

best practices explains:

There are some incidents that are minor in 

nature, but for whatever reason, the mere 

presence of police officers may escalate the 

situation. Under the concept of proportionality,

officers would recognize that even though 
70 [107 Op. Att’y

they might be legally justified in using force 

as the situation escalates, given the minor 

nature of the underlying event, a more 

appropriate and proportional response would 

be to step back and work toward deescalation.

PERF, Guiding Principles, at 39; see also Principles of the Law, 

Policing § 5.04 cmt. a (Tentative Draft No. 1, 2017) (“This 

requirement of proportionality means that even when force is the 

minimum necessary force to achieve a law-enforcement end, its use 

may be impermissible if the harm it would cause is disproportionate 

to the end that officers seek to achieve.”). 

At the end of the day, the propriety of any particular use of 

force will depend on the totality of the circumstances, but selfdefense cases and various police departments’ use of force policies 

offer insight into what factors might be relevant. In an encounter 

with a criminal suspect, for example, whether a particular use of 

force is “necessary and proportional” will likely depend on factors 

such as the nature and seriousness of the alleged offense; the size, 

strength, condition, and mental state of the suspect; whether the 

suspect is actively resisting arrest; the suspect’s violent history (if 

known); whether the suspect appears to have access to a weapon; 

whether the suspect appears to be under the influence of drugs or 

alcohol that may impact the suspect’s mobility or tolerance for 

pain; whether there is a hostile crowd present at the scene; and the 

potential for officers or bystanders to be injured by the suspect’s or 

responding officers’ use of force. See, e.g., BPD Use of Force 

Policy at 4-5; Connecticut Policy, supra, at 5-6; New Jersey Policy, 

supra, at 6; PERF, Guiding Principles, at 39; accord Lambert, 70 

Md. App. at 93-96 (outlining some of the similar factors that courts 

often consider in the self-defense context). Ultimately, these 

factors (and any other relevant factors), will have to be applied on 

a case-by-case analysis under the totality of the circumstances.

What is more, in deciding whether force is necessary and 

proportional under the statute, an officer will also need to 

continually assess the circumstances and adapt the response 

accordingly. For example, if an officer originally subject to 

“imminent death or serious bodily harm” no longer confronts that 

danger, “the basis for lethal force dissipates,” and the officer’s 

“response must be measured and directly proportional to any 

perceived threat that does not rise to the level of being life 

threatening.” Sydnor, 133 Md. App. at 191-92. Indeed, the Use of 

Force Statute itself reiterates that principle by requiring a police 
Gen. 33] 71

officer to “cease the use of force as soon as . . . the person on whom 

the force is used” is “under the police officer’s control” or “no

longer poses an imminent threat of physical injury or death to the 

police officer or to another person,” or as soon as “the police officer 

determines that force will no longer accomplish a legitimate law 

enforcement objective.” 2021 Md. Laws, ch. 60 (to be codified at 

PS § 3-524(d)(2)). 

E. How the “Necessary and Proportional” Standard Differs from 

the Graham Standard

Finally, we consider how the standard in the new Maryland 

Use of Force Statute compares to the Graham test. Although the 

Graham standard also refers to “the amount of force that is 

necessary in a particular situation,” Graham, 490 U.S. at 397 

(emphasis added),41 the Legislature plainly intended to enact a 

standard more restrictive of police officers’ use of force than 

Graham.

While we have not attempted to predict every way in which 

the courts might ultimately find that the “necessary and 

proportional” standard differs from the Graham test, perhaps the 

most important difference is that the Maryland statute incorporates 

a meaning of “necessary” that takes into account reasonable 

alternatives. That is, force is necessary under the statute only when 

an officer has no reasonable means of safely and effectively 

accomplishing a legitimate law enforcement objective other than 

using force. As already noted, the Graham standard does not make 

this conception of necessity “central or mandatory,” Harmon,

supra, at 1172, as “the reasonableness of a police officer’s use of 

. . . force” under that standard “is not measured by what other 

measures the officer could have employed,” Randall, 175 Md. App. 

at 334. 

Relatedly, the Graham standard does not require an officer to 

use a lesser degree, or level, of force even if doing so would be 

feasible under the circumstances and would accomplish the same 

objective. See, e.g., Richardson, 361 Md. at 455 (quoting Schulz, 

44 F.3d at 649) (noting that an officer’s use of force need only 

“fall[] within a range of conduct which is objectively ‘reasonable’ 

under the Fourth Amendment’” and that the officer need not 

41 See also Koushall v. State, __ Md. __, No. 13, Sept. Term, 2021, 

2022 WL 324824, at *1, *10 (Feb. 3, 2022) (summarizing the Graham

standard as allowing officers to use the force “reasonably necessary 

under the circumstances”).
72 [107 Op. Att’y

employ the least intrusive or most prudent option); Int’l Ass’n of 

Chiefs of Police, Use of Force Position Paper, at 3 (“It is important 

to note that in Graham, the U.S. Supreme Court recognized that 

law enforcement officers do not need to use the minimum amount 

of force in any given situation; rather, the officer must use a force 

option that is reasonable based upon the totality of circumstances 

known to the officer at the time the force was used.”). The 

Maryland Use of Force Statute, however, expressly requires that an 

officer’s use of force be proportional. Although this does not mean 

that an officer can be expected to know the exact amount of force 

that will be necessary, it requires an officer to employ the least 

force that is reasonably necessary under the circumstances—which 

is stricter than merely requiring the officer to choose an option that 

falls within a broad range of reasonable conduct.

The new statutory standard, as compared to the Graham

standard, also seems to expand the window of time one considers 

in assessing the propriety of an officer’s use of force. As noted 

before, the Graham test considers the reasonableness of an 

officer’s use of force by looking only to “the circumstances at the

moment or moments directly preceding the use of . . . force.” Hart, 

167 Md. App. at 118. The Maryland Use of Force Statute, by 

contrast, requires an officer to use proportional force, to cease 

using force as soon as it is no longer necessary to accomplish a 

legitimate law enforcement objective, and to “take steps to gain 

compliance and de-escalate conflict without using physical force,” 

“when time, circumstances, and safety allow.” 2021 Md. Laws, ch. 

60 (to be codified at PS § 3-524(d) & (e)(1)). Assessing an officer’s 

compliance with these requirements necessarily entails an 

examination of the circumstances earlier in the encounter leading 

up to the moment that an officer used force, and consideration of 

the officer’s actions in response to those circumstances.

Of course, the Maryland Use of Force Statute cannot amend 

the United States Constitution or change the Supreme Court’s 

interpretation of the Fourth Amendment. The Supreme Court’s 

Graham standard will thus continue to serve as the test for 

determining whether a police officer’s use of force violates the 

Fourth Amendment. Whether Graham also remains the standard 

in other civil actions involving police use of force in Maryland is 

beyond the scope of this opinion and is ultimately a question for 

the Maryland courts. We note, however, that the language of 

Maryland’s new statute provides only for criminal liability based 

on a violation of the “necessary and proportional” standard and, 

even then, only when the violation is intentional and leads to death 

or serious bodily injury. 2021 Md. Laws, ch. 60 (to be codified at 
Gen. 33] 73

§ 3-524(i)). Although violations of the standard will also be 

grounds for possible disciplinary action against police officers, see, 

e.g., 2021 Md. Laws, ch. 59 (to be codified at PS § 3-212(a)(1)(ii))42,

there is no express mention in the statute of civil liability for 

violations of the new standard, and we have seen no indication in 

the legislative history that the new law was specifically intended to 

establish a new civil standard. In fact, when lawmakers imported 

the gist of the use of force standard from House Bill 670, they 

omitted a provision that would have authorized “a civil action for 

damages arising out of the use of force by a police officer in a 

manner inconsistent” with the “necessary and proportional” 

standard. Compare H.B. 670, 2021 Leg., Reg. Sess. (Third 

Reader), with S.B. 71, 2021 Leg., Reg. Sess. (Enrolled Bill).

III

Conclusion

In our opinion, under the new Use of Force Statute, force is 

not “necessary” unless there is no reasonable alternative to using 

force that, under the totality of the circumstances, would safely and 

effectively achieve the same legitimate ends. Even when the use 

of some force is necessary, however, an officer may use no more 

force than is reasonably required under the circumstances to 

accomplish the officer’s legitimate ends. Finally, the proportionality 

requirement also prohibits an officer from using force if the harm 

likely to result from that force is too severe in relation to the value 

of the interest that the officer seeks to protect. This new standard 

does not require officers to be omniscient or to jeopardize their own 

safety by pursuing alternatives that are not reasonable under the 

totality of the circumstances. Nor does the standard necessarily 

require an officer responding to an attack to use the exact same 

type, degree, or amount of force as the attacker. But the new

standard is materially different from, and is stricter than, the 

prevailing standard that has typically been used in Maryland for 

determining whether a police officer’s use of force is justified.

Brian E. Frosh

Attorney General of Maryland

Rachel A. Simmonsen

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice

42 Violations can also potentially lead to actions taken against the law 

enforcement agency. 2021 Md. Laws, ch. 59 (to be codified at PS § 3-

207(j)).