Use of Force 501

Part I: Introduction

“How will I be judged by a court of law if someone sues me for 

using excessive force?” That is a fair question from a law 

enforcement officer. This chapter focuses on the legal aspects 

for using force in the course of effecting an arrest, investigatory 

stop, or other seizure of a free citizen. 

The leading case on use of force is the 1989 Supreme Court 

decision in Graham v. Connor.1 The Court held, “...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 objective reasonableness 

standard...”

A seizure occurs when a law enforcement officer terminates a 

free citizen’s movement by a means intentionally applied. 

Traffic stops, investigative detentions, and arrests are all Fourth 

Amendment seizures. To seize someone, an officer may yell 

“Stop!” The officer may use handcuffs, a baton, or firearm to 

make him stop. A seizure must be objectively reasonable –

meaning reasonable in its inception, the degree of force used, 

and its duration. This chapter focuses on the degree of force an 

officer may use. The Fourth Amendment chapter discusses 

when, and for how long someone can be seized; but they all go 

to the overall question – was the seizure reasonable?

Mr. Graham was a diabetic. He felt the onset of an insulin 

reaction on day, called his friend Berry, and asked for a ride to 

a convenience store. Graham hoped to buy some orange juice. 

He thought that the sugar in the juice would counteract the 

reaction. 

After the two men arrived at the store, Graham got out of the 

car and hastily went inside. Unfortunately, the check-out line 

was too long. Graham “hastily” returned to the car, got in, and 

told his friend to drive to another friend’s house. Maybe this 

 1Graham v. Connor, 490 U.S. 386 (1989); See the Legal Division Reference 

Book.
502 Use of Force

friend would have some juice. 

Officer Connor had watched Graham hastily enter and leave 

the store and suspected something was amiss. Connor 

activated his overhead lights and pulled them over. Berry tried 

to explain that his friend was just having a “sugar reaction” but 

Connor was not convinced. Connor told the two men to wait at 

their car while another officer returned to the store to determine 

what happened. Things got worse from that point. Graham got 

out of the car. He ran around the car two times, sat down on 

the curb, and momentarily passed out. Back-up officers 

arrived. According to Mr. Graham, he was violently placed into 

the backseat of a cruiser. All this time, Berry, and Graham 

after he regained consciousness, tried to explain that Graham 

was just having an insulin reaction. But their pleas had no 

effect. One officer commented that he thought Graham was 

drunk. 

Connor finally received the report from the officer who returned 

to the store. Nothing was amiss. Graham sued the police 

officers. On appeal, the Supreme Court stated that the officers 

should be judged based on the Fourth Amendment’s objective 

reasonableness test.

The Objective Test and the Reasonable Officer

The Court stated, “The 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.” The objective test requires the court to envision a 

reasonable officer and ask: Based on the totality of the facts and 

circumstances, could such an officer believe that the force was 

reasonable?

Since the objective test judges the officer through the lens of a 

reasonable officer, the subjective beliefs of the actual officer,

whether they are good or bad, are not relevant. For instance, 

Officer Connor may have honestly believed that Graham was a 

shoplifter; however, the objective test asks what a reasonable 

officer could believe based on the facts. Facts make force 
Use of Force 503

reasonable. The objective test requires officers to rely on their 

senses (... or what they saw, heard, smelled, tasted, or touched)

and then articulate a factual basis for what they did. 

Was it reasonable to stop and use force on Mr. Graham? The 

Supreme Court said this was the relevant question. What 

follows are some facts and circumstances that could cause a 

court to find that the force was reasonable. Some of these facts 

are for illustrative purposes, only, and are not in the Graham

decision.

For example, Officer Connor might write in his use of force 

report:

“I saw Mr. Graham run into the store. Less than 

10-seconds later, I saw him run back out and get 

into Berry’s car. I heard the tires screech as the car 

drove away at a high rate of speed.”2

Based on those facts, what could a reasonable officer say? The 

Supreme Court’s decision in Terry v. Ohio states that an officer 

may conduct an temporary investigative detention based on 

reasonable suspicion that criminal activity is afoot.3

An officer’s training and experience is also relevant. Connor 

might add: 

“Based on what I saw, and my department having 

received no less than four complaints of shoplifting 

from this store within the past two weeks, I 

activated my overhead lights and stopped the car.” 

Connor would be admitting to effecting a Fourth Amendment 

seizure; but a seizure is reasonable if he can point to specific, 

articulable facts indicating that criminal activity is afoot.

It should be obvious by now that the officer must help the court 

 2 This is a hypothetical use of force report that is intended for instructional 

purposes only. It is not Officer Connor’s report. 3 Terry v. Ohio, 392 U.S. 1 (1968); See the Legal Division Reference Book.
504 Use of Force

visualize what happened. Using good action verbs in a written 

report makes that visualization possible. Connor might write: 

After Berry stopped, I walked to his car. I told both 

of the men to wait there. I ordered another officer 

to go back to the convenience store and find out 

what happened. Then Graham got out of the car. 

Graham opened the passenger door. He ran around

the car two times, sat down on the curb, and fell 

over as if he had passed out.

Objective opinions or conclusions are appropriate; they are

supported by facts. Connor might state: 

I believed that Graham was under the influence of 

alcohol, based on my experience with intoxicated

people. They are generally irrational. Graham was 

irrational; he ran around the car two times after I (a 

police officer) told him to wait at the car. Then he 

sat on the curb and fell over - as if he passed out.

Connor might add:

“Graham’s eyes were glassy. His speech was 

slurred. His breath smelled sweet, as it may after 

drinking alcoholic beverages.” Referring back to his 

training and experience, Connor could explain why 

intoxication is relevant. “I know that many

assaults on police officers are committed by people 

under the influence of alcohol or narcotics.”4

Good fact articulation helps the court make an objective 

decision. With facts, the court can visualize what happened. 

Facts “paint the picture.” 

But the court cannot make an objective decision based on mere 

conclusions. If a statement makes someone ask “how?” or 

“why?” it is probably a mere conclusion. Note the differences:

 4 Darrell L. Ross, “Assessing Patterns of Citizen Resistance During Arrest,” 

FBI Law Enforcement Bulletin 1999.
Use of Force 505

• These are facts: “I ordered the suspect to stay in the 

car. Instead, he got out.” The reader can visualize 

that.

• Now consider a mere conclusion: “He was noncompliant.” How? 

With facts, the reader can visualize what happened. The mere 

conclusion makes the reader asked, “How?” 

“Cop talk” creates the same confusion as a mere conclusion. 

“Fuzzy words” like “indicated, suggested, or implied” do the 

same thing. They make the reader ask how. How did he 

indicate? Note the differences:

• Facts: “I ordered the suspect to keep his hands on the 

steering wheel of the car. Instead, he reached under the 

seat with his right hand.

• Cop talk: “The suspect made a furtive movement.”

• Fuzzy word: “He indicated that he might be going for a 

gun.” 

Officers may experience tunnel vision, auditory exclusion, and

memory loss in stressful situations where they have to use 

force. But they must paint the picture with the sights and 

sounds they remember. While it may be impossible to recall 

exactly what the suspect said, the officer may still remember 

“He screamed at me and clenched his fists, like a boxer.” 

Part II: The “No 20/20 Hindsight” Rule

What was not available to the officers when Graham was 

initially stopped, handcuffed, and put in the cruiser was the 

report from the officer who returned to the store. Nothing was 

amiss. But using that information to judge Connor could 

violate the “no 20/20 hindsight” rule. 
506 Use of Force

“The no “20/20” hindsight rule probably worked to Officer 

Connor’s advantage, in this case. But what if Connor had 

learned the next day that Graham had a violent criminal 

record? Considering that information would also violate the 

rule. Officers are judged based on the facts reasonably known 

at the time. 

 

Perfect Answers vs. Range of Reasonableness

“The test for reasonableness under the Fourth Amendment is 

not capable of precise definition or mechanical application,” the 

Court stated. Allowance must be made 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.” Obviously, there may be more than one 

way to effect a seizure - and while hindsight may prove one

option better than another - what matters is whether the 

chosen one fell within the range of reasonableness.

5

The Graham Factors are Reasons for Using Force

The Court stated that whether force is reasonable requires a 

careful balancing of the nature of the intrusion on the suspect’s 

liberty against the countervailing governmental interest at 

stake. In short, what did the officer do (or what was the nature 

of the intrusion on the suspect’s liberty) and why did the officer 

do it (or what was the governmental interest at stake)? The 

Graham factors act like a checklist of possible justifications for 

using force. They are not a complete list and all of the factors 

 5 Using too little force is not a constitutional violation, but may unnecessarily endanger the 

officer or others.

Too Little Too Much

Range of Reasonable

Options
Use of Force 507

may not apply in every case. 

The Graham factors are the severity of the crime at issue; 

whether the suspect posed an immediate threat; and whether 

the suspect was actively resisting or trying to evade arrest by 

flight. 

1. The Severity of the Crime

The “severity of the crime” generally refers to the reason for 

seizing someone in the first place. Officer Connor may have 

been acting under a reasonable suspicion that Graham stole 

something. Arrests and investigative detentions are traditional, 

governmental reasons for seizing people. Generally, the more 

serious the crime at issue, the more intrusive the force may be.

There may be a reasonable basis for seizing someone who is not 

suspected of any wrongdoing. Reasonable force may be used to 

control the movements of passengers during a traffic stop.6

When executing a warrant in a home, reasonable force may be

used to detain the occupants.7 The operative word under the 

Fourth Amendment is reasonableness. Reasonableness 

depends on the facts. 

2. The Immediacy of the Threat 

Whether the suspect is an immediate threat to the safety of the 

officer or others is generally considered the most important 

governmental interest for using force. The greater the threat, 

the greater the force that is reasonable. 

3. Actively Resisting Arrest 

Resisting an arrest or other lawful seizure affects several 

governmental interests. It may prevent the officer from effecting 

an arrest, investigating a crime, or executing a warrant. The 

 6 Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v. Wilson, 519 

U.S. 408 (1997); See the Legal Division Reference Book. 7 Michigan v. Summers, 452 U.S. 693 (1981); See the Legal Division 

Reference Book.
508 Use of Force

Graham factors are not considered in a vacuum. Active 

resistance may also pose a threat.

4. Attempting to Evade Arrest by Flight

Attempting to evade an arrest or other lawful seizure by flight 

frustrates some of the same governmental interests as 

resistance. Flight (especially by means of a speeding vehicle) 

may even pose a threat.

With the facts, the court can determine what Graham factors 

apply and whether the force was objectively reasonable. In 

Graham, for example, the offense at issue was possible 

shoplifting; and the initial intrusion on Graham’s liberty was 

sitting in a car beside the road. But the intrusion on Graham’s

liberty also became much greater. Did the governmental interest 

at stake? Recall that Officer Connor told the men to wait at the 

car and Graham resisted that order. He got out. Add that to 

evidence of Graham’s possible intoxication, and a reasonable 

officer might believe that Graham posed an immediate threat to 

Officer Connor; to other motorists on the adjoining road; and to 

Graham, himself. 

What did 

you do?

Why did you 

do it?

1. Severity of the 

Crime

2. Immediacy of the 

Threat

3. Actively Resisting 

Arrest

4. Attempting to Evade 

Arrest by Flight
Use of Force 509

Other Factors

The Graham factors are not a complete list. While the lower 

courts have listed others, most are a subset of what is generally 

considered the most important factor: Immediate threat to the 

officer or others. For example, the number of suspects verses 

the number of officers may affect the degree of threat. Initially, 

it was Officer Connor against two suspects. Also affecting the 

degree of threat is the size, age, and condition of the suspect 

confronting the officer. Is the suspect 75 years old and frail, or 

25, 6’2” and about 250 pounds? The duration of the action is 

important. Struggling with someone can be physically 

exhausting? 

Any officer would want to know a suspect’s criminal or 

psychiatric history, if possible. But mental impairment is not 

the green light to use force. Shocking a man several time with 

an electronic control device was excessive in a situation where 

he had been involuntarily commited, but not committed any 

crime. The man grabbed a post, was seated on the ground, and 

was surrounded by police and hospital staff. The static 

stalemate did not create an immediate threat.8 

Time is a factor. The Court stated, “The calculus for 

reasonableness must embody allowance for the fact that police 

officers are often forced to make split-second judgments - - in 

situations that are tense, uncertain, and rapidly evolving - -

about the amount of force that is necessary in a particular 

situation.” A robbery suspect who reaches into his waistband

creates some split-second decision making for the officer; more 

deference should be given to the officer’s decision. But not 

every situation requires a split-second decision. Consider the 

mentally impaired man who grabbed the post. If he does not 

pose an immediate threat, there is probably time to consider

other, less intrusive options.

 8 Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016)
510 Use of Force

Part III: Deadly Force

Shooting a suspect is often called “deadly force” and is the 

highest level of intrusion on someone’s liberty. It must be 

justified by a very high governmental interest. Shooting a 

suspect with a firearm is not unconstitutional when a 

reasonable officer could believe that he poses a significant 

threat of death or serious bodily harm to the officer or others.

Significant threat? A murderer may pose an imminent threat to 

society if allowed to evade arrest and remain at large. Someone 

stopped for a minor traffic offense may pose an immediate 

threat by grabbing a gun. And how much proof is necessary? 

Some of the federal circuit courts use a probable cause 

standard (...i.e., a reasonable officer could believe the suspect 

probably posed a significant threat, based on the facts known at 

the time.) Probable cause is a common-sense, all things 

considered standard for assessing probabilities in a particular 

situation. 

Tennessee v. Garner9 - Examples when force highly likely to 

have deadly effects is reasonable.

In Tennessee v. Garner, the Supreme Court held that it was 

unreasonable to shoot Edward Garner. While investigating a 

burglary, an officer saw Garner run out of a house. The officer 

yelled at him to stop, but Garner continued to flee and managed 

to climb to the top of a fence. At that point, the officer had two 

options - let Garner escape, or shoot. The officer shot Garner in 

the back of the head. Garner died a few hours later on the 

operating table. Tennessee law at the time authorized all 

 9 Tennessee v. Garner, 471 U.S. 1 (1985)

Could a reasonable officer believe that the 

suspect posed a significant threat of 

serious bodily harm to the officer or 

others? Warn if feasible.
Use of Force 511

necessary force to stop any fleeing felon, and the officer 

assumed the law allowed him to shoot Garner. But the 

Supreme Court held that the Tennessee statute was 

unconstitutional in so far as it authorized the use of deadly 

force to stop any fleeing felon.

The Supreme Court decided Garner before Graham; however, it

is easy to understand how the Court reached their decision by 

appling the facts to the Graham factors. The “severity of the 

crime” was burglary and Garner “attempted to evade arrest by 

flight.” But that was all. The governmental interest was not 

strong enough. “It is not better that all felony suspects die than 

that they escape” the Court stated.

Qualified Immunity – What happened to the officer?

This is a good place to pause and ask, “So what happened to 

the officer that shot Edward Garner?” He was sued, but while it 

is true that anyone can sue, that does not always mean that the

officer must stand trial. It seems unfair that the officer in 

Garner should be made to suffer the burdens of litigation, when 

state law at the time authorized what he did. 

The officer requested and received qualified immunity. 

Qualified immunity is the officer’s defense to standing trial in a 

civil case for a constitutional tort.10 It is raised by the officer 

well in advance of trial, and if granted, the court dismisses the 

case. The rationale behind qualified immunity is two-fold. 

First, it permits officers to perform their duties without fear of 

constantly defending themselves against insubstantial claims 

for damages. On the other hand, it allows a plaintiff to recover 

damages when any reasonable officer would know that the 

officer violated a clearly established constitutional right.

Qualified immunity is like a contract that police officers have 

with the federal courts. The officer’s end of the bargain is to 

use constitutional force (meaning force that falls within the 

range of reasonableness). Still, the force may not be 

 10 Qualified immunity is not an available defense in a criminal case.
512 Use of Force

constitutional. If not, the question becomes whether the courts 

lived up to their end of the bargain. Did the courts clearly 

establish the law so that any reasonable officer would know, 

that’s wrong, ... that’s unconstitutional? If the law was not clear, 

or the court finds that the force fell within that grey area

between constitutional and excessive, the court must dismiss 

the case. The officer that shot Garner received qualified 

immunity because the law was not clearly established when he 

fired the fatal shot. The civil case against him was dismissed. 

In short, there are two ways to get qualified immunity. The 

judge may find that: (1) the force was constitutional; or (2) that 

the law was not clearly established at the time. The judge is not 

required to go in any particular order, either. The judge may 

simply find that the law is not clear, and save the harder 

constitutional question for another day.

To deny an officer qualified immunity, the judge must find that 

the the facts could support both: (1) a constitutional violation 

that (2) was clearly established. If denied qualified immunity, 

the case may proceed to trial. 

Students sometimes ask, “If the judge finds that the officer 

violated a clearly established constitutional right, why not just

hold the officer liable?” The answer is simple. Recall that 

qualified immunity is raised well in advance of the actual trial. 

If granted, the case is dismissed. Qualified immunity denies the 

plaintiff (the person suing the officer) his day in court; therefore, 

before dismissing the plaintiff’s case, the judge must consider 

the facts in his favor. Before the judge can grant qualified 

immunity to the officer, the judge must be able to say, “Mr. 

Plaintiff, I have considered your version of what happened. No

reasonable jury could find for you.” Only in that case is it fair to 

deny the plaintiff his day in court. 

If there is a material dispute between the officer and the 

plaintiff about what happened, the judge must send the case to 

trial to resolve the dispute. The bottom line: Denying the officer 

qualified immunity does not mean that the officer is liable. 
Use of Force 513

 

Part IV: Scott v. Harris11 - The Supreme Court established

the relationship between Garner and Graham.

Edward Garner was a fleeing burglary suspect who posed no 

articulable threat to the officer or others. But what if Garner 

was someone who posed a continuing threat to society if 

allowed to remain at large, like a murderer? The Supreme Court 

stated: 

“If...there is probable cause to believe that [the 

suspect] 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.” 

For several years, the lower courts believed that the Garner 

decision set rigid, preconditions as to when deadly force was 

authorized to stop a suspect’s flight. The fact that Graham’s

objective reasonableness test is the standard for judging all 

force was not made clear until the Supreme Court’s decision in 

Scott v. Harris.

Mr. Harris was speeding when an officer signaled for him to 

stop. Harris fled and a high-speed car chase ensued. Enter 

Officer Scott. Officer Scott pushed Harris off the road by 

ramming the rear bumper of Harris’ vehicle. At the speeds both 

cars were traveling (almost 100 miles per hour) Harris claimed

that the push was “deadly force” and that it was unreasonable 

to use it to stop his flight. He referenced the example in 

Tennessee v. Garner. Harris’ argument was that he was a mere 

speeder, not someone who posed a continuing threat to society 

if allowed to remain at large, like a murderer. 

The Supreme Court disagreed with Harris’ argument. Garner

did not establish a magical on/off switch that triggers rigid 

preconditions whenever an officer’s actions constitute “deadly 

force.” Graham v. Connor’s objective test controls every case.

 11 Scott v. Harris, 550 U.S. 372 (2007).
514 Use of Force

The heart of Graham is to weigh the nature of the intrusion on 

the suspect’s liberty (what the officer did) against the 

countervailing governmental interest at stake (or why the officer 

did it.) So what did Officer Scott do ...?

Scott pushed Harris’ car off the road while Harris was traveling 

almost 100 miles per hour. But why? What was the 

governmental interest at stake ...? 

The Court applied the facts to the Graham factors. True, the 

underlying offense was only speeding, but Harris fled. And this 

was no foot chase. This was flight by means of a two-ton 

vehicle. Harris raced down narrow, two-lane roads in the dead 

of the night, and at speeds in excess of 85 miles per hour. 

Harris swerved around more than a dozen other cars, crossed 

the double yellow line, and forced other cars off the road to 

avoid being hit. He ran multiple red lights and traveled for 

considerable periods of time in the occasional center left-turnlane. Harris did all that while being chased by numerous police 

cars. Harris even rammed one of the police cruisers. Only after 

observing those facts did Officer Scott push Harris off the road. 

Harris’ flight by means of a speeding vehicle posed a significant 

threat of serious physical harm to others and created the strong 

governmental interest that made what Scott did fall within the 

range of reasonableness.12 Scott received qualified immunity. 

Scott v. Harris established the relationship between the

Garner and Graham decisions. Graham established the test for 

judging all force. The test is objective reasonableness. The 

Garner decision provides examples as to when force highly 

likely to have deadly effects is reasonable. One is a murderer 

 12 There is not a Fourth Amendment prohibition against vehicle pursuits of 

fleeing misdemeanants. Harris argued that the public would have been 

protected, and the tragedy avoided, if the police simply ceased their pursuit. 

However, the Court stated, “...we are loath to lay down a [constitutional] 

rule requiring the police to allow fleeing suspects to get away whenever they 

drive so recklessly that they put other people’s lives at danger.” Still, state 

law and agency policy may place heightened restrictions on pursuits due to 

the extreme risks they pose to the officers and the public. See Day v. State 

of Utah, 980 P.2d 1171, 1179 (Utah 1999). 
Use of Force 515

who would pose an continuing threat to society if allowed to 

remain at large. But that is just one example. Scott states that 

there are no rigid pre-conditions (or set of facts) that must exist 

before using deadly force. The court must wade through the

facts, and when the facts come together so that a reasonable 

officer could believe that the suspect poses a significant threat

of death or serious bodily harm, deadly force falls within the 

range of reasonableness.

 1. Plumhoff v. Rickard – Shooting at Moving Vehicles.13

Scott v. Harris left open under what circumstances shooting at a

fleeing motorist was reasonable. That question was answered

in Plumhoff v. Rickard. Like Mr. Harris, Mr. Rickard started a 

high-speed pursuit after a minor traffic offense. The chase 

exceeded 100 miles per hour and lasted over five minutes. 

Rickard passed more than two dozen vehicles, several of which 

were forced to alter course. He eventually collided with a police 

car and came to a temporary standstill. Still, Rickard promised 

to continue the chase. With his front bumper flush against a 

police car, Rickard hit the accelerator causing the tires to spin. 

Officer Plumhoff fired the first three shots into the car. Rickard 

then threw the car into reverse and started to drive away. 

Other officers fired 12 more shots into the car. Richard crashed 

and he and his passenger died of some combination of gunshot 

wounds and injuries from the crash. 

Rickard’s estate sued. The officers requested qualified 

immunity, but the lower court refused to grant it. The lower

court believed that there were significant differences between 

this case and Scott v Harris. The lower court noted: (1) Richard 

was only traveling 4 or 5 miles per hour when force was used;

(2) Richard had a passenger in the car; and finally, (3) instead of 

being pushed of the road, the officers fired 15-rounds at him. 

The Supreme Court reversed the lower court. The differences 

were insignificant. While traveling much slower than Harris,

the facts demonstrated that Richard would continue his

dangerous flight. All 15-shots were fired to end that threat. 

 13 Agency policy may also place restrictions on shooting at moving vehicles. 
516 Use of Force

And the passenger did not make any difference. The question 

was whether the officers violated Richard’s Fourth Amendment 

rights, not his passengers.14 

2. San Francisco v. Sheehan – Immunity for Tough 

Decisions.

Before a judge can deny an officer qualified immunity, the judge 

must find that the officer violated a clearly established 

constitutional right. The law was not clear in the Sheehan case. 

Ms. Sheehan lived in a group home for people suffering with 

mental illness and was not taking her medications. “Get out of 

here!” she shouted after a social worker entered her room. “You 

don’t have a warrant! I have a knife and I’ll kill you.” Two 

officers were dispatched to the home to take her to a hospital. 

When they entered her room, Sheehan charged with the knife 

and the officers retreated to the hallway. 

From the relative safety of the hallway, the officers had some 

options. One was to wait for backup and try to de-escalate the 

situation. Instead of waiting, however, the officer re-entered the 

room. Predicatably, Sheehan charged again with the knife. 

Predicatably (her lawyer would argue) the officers were forced to 

shoot her. 

The issue in this case was not whether the officers could enter 

Sheehan’s room without a warrant. They could; this was an 

emergency. Deadly force to seize Ms. Sheehan - - viewed at 

least from the moment of the shooting - - was also reasonable. 

The issue was over the Ninth Circuit’s provocation doctrine. 

The Ninth Circuit denied the officers qualified immunity 

because the court believed that the officers may have needlessly

provoked the deadly encounter when they entered the room the

second time. 

The Supreme Court reversed. Even assuming the officers did 

 14 There is some disagreement among the lower courts as to whether a 

passenger in this situation can recover under a Fourth Amendment theory. 

See Plumhoff v. Rickard, 134 S. Ct. 2012, fn. 4 (2014).
Use of Force 517

provoke the encounter, the law was not clear. The Court found 

wanting any robust consensus of precedent that would have put

any reasonable officer on notice about when it was reasonable, 

or not, to re-enter the room. 

Qualified immunity is designed to protect all but the plainly 

incompetent or those who knowingly violate the law. It is

certainly not a noble standard to live up to. However, qualified 

immunity has a vital purpose in cases where police officers are 

likely to face public ridicule for not acting and personal liability 

when they do. Before the officer can be forced to face the 

burdens of litigation the law must be clearly established so that 

any reasonable officer would know “that’s unconstitutional - - I 

can’t do that!”

Part V: Myth vs. Reality: 

Probably no subject is plagued with more myths than use of 

force. 

1. Myth. You can’t fire unless fired upon. 

The reality is that waiting to be fired upon, or waiting for the 

suspect to point the gun, ... or even waiting to see the gun may 

be too late for the officer. The Graham analysis allows police 

officers to react to the threat of violence, not violence itself. 

2. Myth. Deadly force can only be used as a last resort.

Many law enforcement agencies have use of force policies. A

An objective test allows officers to 

react to the threat of violence, rather 

than violence itself.
518 Use of Force

policy may state, “Deadly force can only be used as a last 

resort.” Another may state, “Use the minimal force” and

“Always give a warning.” Objective reasonableness is the law; 

not policy. When the facts come together that the suspect 

poses a significant threat, shooting falls within the range of 

reasonabless. Using the minimal force, exhausting all lesser 

means of force, or always giving a warning could create an 

unnecessary risk for the officer.

3. Myth. Anyone with a gun is a danger.

The United States is a democracy that balances individual 

freedoms with law enforcement. One right that free citizens 

have is to bear arms. Home owners have a right to keep 

firearms in their homes for self-defense. A homeowner who 

steps out onto his front porch with a gun to investigate a 

possible disturbance is doing nothing more than any free citizen 

might do. But when officers are lawfully present (to investigate 

crimes or execute warrants) they may order occupants to put 

their firearm down, and where the order goes unheaded, they 

are not required to wait for someone take a bead on them. 

The law requires officers 

to use objectively 

reasonable force, not the 

minimal force. 

The mere fact that someone has a gun 

does not mean that he is armed and 

dangerous. 
Use of Force 519

 

 

Part VI: Intermediate Weapons

Batons, electronic control devices (ECDs), and oleoresin 

capsicum (OC) spray are often called intermediate weapons

because they offer an intermediate level of force between a 

firearm and going hands-on. But objective reasonableness 

depends on the facts. Baton blows to the head, neck, or groin 

area may cause serious injuries. The electrical charge from a

dart-mode ECD causes neuromuscular incapacitation and is 

very likely to cause serious injuries to someone standing in tree, 

climbing over a fence, or saturated with flammable liquids. 

Absent a strong governmental interest, as when the suspect 

poses a significant threat, intermediate weapons are excessive 

when any reasonable officer would know that they are likely to 

cause serious injuries.

The Nature of the Intrusion – What does an intermediate 

weapon do?

A baton can be held at port arms to gently push a protestor 

back to the sidewalk. It can also be used to strike his attacking 

limbs. A baton is capable of causing deep bruising, blood clots 

capable of precipitating a stroke, and even death. 

Oleoresin Capsicum (OC) spray comes from the oily extract of 

the cayenne pepper plant. Exposure to OC creates a deep 

Absent a significant threat, 

intermediate weapons are not 

reasonable when any 

reasonable officer would 

know they are likely to cause 

serious bodily harm.
520 Use of Force

burning sensation and difficulty breathing. 

Electronic control devices (ECDs) come in two modes – dart and 

drive-stun.15 In the dart mode, the ECD propels a pair of 

“probes,” or aluminum darts tipped with stainless steel barbs 

towards the suspect. When the darts strike the suspect, the 

ECD delivers an electrical charge through the wires and probes 

and into the suspect’s muscles. The electrical impulse 

momentarily overrides the central nervous system. The suspect 

falls, momentarily incapacitated, which provides an opportunity 

for the officer to move in with handcuffs.

In the drive-stun mode, the officer pushes two electric contacts 

located on the front of the ECD directly against the suspect. 

The drive-stun delivers an electronic shock. The drive-stun

does not override the central nervous system like the dartmode, but it is painful and may cause a struggling suspect to 

release his grip on something.16

 

The Governmental Interest at Stake – When are 

intermediate weapons objectively reasonable?

An immediate threat is the most important Graham factor. 

Intermediate weapons fall within the range of reasonableness if, 

after applying the facts to the Graham factors, the suspect 

poses an immediate threat. 

 15 Experts have testified that ECDs may cause abnormal heart beat leading 

to stoppage and death. On the other hand, a National Institute of Justice 

panel determined that there is no conclusive evidence that indicates a high 

risk of serious injury to humans from short-term ECD exposure in healthy, 

non-stressed, non-intoxicated persons. Statistically, ECDs carry a 

significantly lower risk of injury than physical force.15 John H. Laub, 

Director, National Institute of Justice, Study of Deaths Following Electro 

Muscular Disruption 31 (2011). 16 The Physical Techniques Division provides electronic control device 

training to students attending the Federal Law Enforcement Training Center. 

The students are issued the manufacturer’s warnings. Attention to these 

warning can help the officer stay within the range of reasonableness. 
Use of Force 521

Immediate Threat

The severity of crime at issue may help establish an immediate 

threat. Consider an armed robbery suspect who refuses an

officer’s order to lay on the ground. An intermediate weapon 

may be reasonable to make him. 

But change the facts, and the answer may change. Assume the 

same person was only suspected of drunk driving. While a 

serious crime, drunk driving is not indicative of someone who is

an immediate threat. The same urgency to get him on the 

ground may not exist. 

The crime is only one factor to consider in deciding whether a 

threat exists. Police officers have a right to protect themselves 

even while investigating minor crimes. Consider a case where a 

patrolman stopped a truck driver for a simple traffic violation. 

The driver became immediately confrontational. “Get that 

flashlight out of my eyes” he stated. Five-times the officer asked 

for license and registration. Instead, the driver ranted and 

raved by the highway, “Why don’t you just take me to f---ing 

jail” and “I don’t have to kiss your damn a—because you’re a 

police officer.” After the fifth request, the officer shot the man 

with an electronic control device (ECD) in the dart-mode. The 

ECD caused neuromuscular incapacitation, he fell, and was 

The violent nature of an

offense (armed robbery) plus 

resistance (not getting on 

the ground) may support a 

credible threat. 

Does the suspect pose an 

immediate threat due to the

severity of crime at issue, the

nature of suspect’s resistance, or 

flight?
522 Use of Force

taken to jail.

The truck driver’s failure to provide documentation was an 

arrestable offense; but, was it reasonable to use the ECD ... and 

without warning? That was the issue before the court. The 

truck driver claimed that he would have obeyed the officer’s 

arrest commands, had the officer warned him. The officer, on 

the other hand, claimed that arrest commands would only 

escalate an already tense and difficult situation into a more 

serious struggle. This time the facts supported the officer.

But in another case, the facts viewed in a light most favorable to 

the plaintiff did not support an immediate threat. Here a young 

man drove onto Coronado Island wearing nothing but boxer 

shorts and tennis shoes. An officer also saw that he was not 

wearing his seat belt and directed him to pull to the side of the 

road. He did, but began to pound the steering wheel and to 

curse, ... apparently upset about the pending traffic ticket. 

Then the the young man got out of the car. The slightly clad 

young man must have looked strange. Adding to his bizarre 

behavior, he began to yell gibberish, expletives (though not at 

the officer’s face, like the truck driver) and to hit his thighs. 

The officer was about twenty to twenty-five feet away from the 

young man when, without warning, the officer shot him with an 

ECD in the dart-mode. He fell due to neuromuscular 

incapacitation and shattered his teeth on the pavement. 

The reviewing court believed that the only similarities between 

this case and the truck-driver’s were that the two men were 

stopped for a traffic violation; they were loud; and, they were 

shot by an ECD. While the in-your-face behavior of the truck 

driver could cause a reasonable officer to believe that there was

a threat, the behavior of the young man on Cornoado could not. 

He was further away and just having a temper-tantrum.
Use of Force 523

Each use of force must be objectively reasonable. Not all of 

them were in a domestic violence case. The officers had 

probable cause to arrest the suspect who was acting erratically,

holding a baseball bat, and advancing on the officers. The first 

three deployment of an ECD were not excessive because the 

facts supported a threat. However, seven more were excessive. 

At this point he had been disarmed, brought to the ground, and 

was restrained by several other officers.17 

Similarly, OC spray is reasonable against a combative suspect 

who poses an immediate threat. But once the suspect is under 

control, he should be decontaminated as soon as reasonably 

possible.18 

 

Active resistance may be combative or mechanical in nature. 

Whether combative resistance poses a credible threat depends 

on the number of officers and the size, height, weight and 

condition of the suspect compared to the officers.

 

Mechanical resistance is a situation where the suspect’s 

resistance is not directed at the officer; instead, the suspect 

grabs ahold of something to thwart the officer’s attempts to 

control him. When the suspect is not an immediate threat, time 

 17 Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013) 18 Lalonde v. Co. of Riverside, 204 F.3d 947 (9th Cir. 2000)

People may get upset with law 

enforcement; however, a temper 

tantrum does not always mean that 

someone is a threat.

Combative resistance may 

pose an immediate threat. 
524 Use of Force

is an important factor. Is there time to consider other, less 

intrusive options than an intermediate weapon? 

Part VII: Control vs. Compliance and the Time Factor

Intermediate weapons have posed a challenge to the courts, to 

the officers using them, and to law enforcement trainers. When 

do they fall within the range of reasonableness? The Supreme 

Court has not ruled definitively. Circuit courts have held that 

an officer does not violate the Fourth Amendment by using an 

ECD to control the active resistance of a suspect.19 Others hold

that active resistance, alone, is not enough and that an ECD 

may only be used when a police officer is confronted with an 

immediate threat.20 It would be unreasonable to use a stundrive ECD simply to remove an arrestee from a car in a circuit 

requiring an immediate threat, even after the arrestee stiffened 

her body and clutched the steering wheel to frustrate the 

officers’ efforts.21

“So how do we get the arrestees out of the car?” seems a 

reasonable question from officers. To quote one judge, “There 

are only so many ways that a person can be extracted from a 

vehicle against her will, and none of them is pretty.”22 

 19 See Hagans v. Franklin Co. Sheriff’s Office, 695 F.3d 505, 509 (6th 2012); see also 

Crowell v. Kirkpatrick, 400 Fed.Appx, 592 (2nd Cir. 2010)(using a stun-drive ECD to force a 

protester to release herself from a heavy barrel to which she had chained herself did not 

violate the Fourth Amendment. She was told to leave; warned that the ECD would be used; 

told that it was painful; and given the opportunity to release themselves before subsequent 

applications.) 

20 See Armstrong v. Pinehurst, 810 F.3d 892, 903 (4th Cir. 2016) 21 See Brooks v. City of Seattle, 661 F.3d 433 (9th Cir. 2011) 22 Brooks, 661 F.3d at 459 (Judge Silverman, Concurring)

Mechanical resistance is a 

situation where the suspect 

grabs ahold of something. Time 

is an important factor. 
Use of Force 525

Perhaps the greatest challenge is for law enforcement trainers. 

What should they teach the students about intermediate 

weapons? That question is particularly difficult for instructors 

at the Federal Law Enforcement Training Center where 

graduating students may find themselves assigned to any 

circuit. The goal is to find the best practice so that officers can 

be reasonable anywhere. 

Teaching the difference between control and compliance is a 

step in the right direction. Intermediate weapons are control 

tools, not compliance tools. Even in a situation where active 

resistance would be enough to use an intermediate weapon, the 

facts must still suggest a need for one. Simple statements that

“The suspect was non-compliant” or “He didn’t do what I said” 

are never enough. Finally, “time” is an important factor. And 

this may be the key to being reasonable in any circuit. If the 

suspect is not an immediate threat, there is generally time to 

consider other less intrusive options. 

 

Part VIII: Myths vs. Reality

1. Myth. ECDs have been credited with reducing 

injuries to suspects and officers alike; therefore, they can used 

anytime the suspect disobeys the officers’ orders. 

Part of that statement is true; specifically, ECDs have been 

credited with reducing injuries. But ECDs also hurt, a lot. 

They cannot be used anytime the suspect refuses to obey arrest 

commands. 

Intermediate weapons are control tools. 

They are not compliance tools. If the 

suspect is not an immediate threat, there is 

generally time to consider other, less 

intrusive options. 
526 Use of Force

2. Myth. The law does not require an officer to reassess a suspect’s resistance after using an ECD because the 

pain is only temporary. 

Each use of an ECD (or any intermediate weapon) must be 

objectively reasonable. Objective reasonableness always 

requires an application of the facts to the Graham and other 

factors. 

3. Myth. An officer does not have a duty to decontaminate a suspect after using OC spray so long as the initial 

use was reasonable.

 

A Fourth Amendment seizure triggers a duty to render aid to 

the suspect when it’s reasonable to do so. Once the suspect is 

under control, the officer should decontaminate a suspect. 

4. Myth. Agency policy is the law. 

Agency policy is not the law. The Supreme Court established 

the law in Graham v. Connor. Agency policies may establish

restrictions on using force that are more restrictive that what 

the law requires. Officers may be fired or suffer administrative 

sanctions for violating policy. If sued, however, the court will 

apply the objective reasonableness standard. 

Part IX: After the Fight

Taking a suspect into custody creates a duty to care for him.23

• As soon as the suspect is handcuffed, get him off his 

stomach, and belt him inside the car in the seated 

position. In-custody deaths may result from positional 

asphyxia – i.e., death as a result of positioning the 

suspect’s body in a way that interferes with his ability to 

breathe. 

 23 Jones v. City of Cincinnati, 507 Fed.Appx. 463 (6th Cir. 2012) citing 

Ewoiski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2012).
Use of Force 527

• Monitor the suspect carefully and obtain medical 

treatment if needed. Ask the suspect if he has used 

drugs recently or suffers from any other medical 

condition. Do not assume that the suspect is “playing 

possum” and obtain medical care on his request.

• If the suspect is not breathing or there is other evidence 

that he suffers from a serious medical condition, call 

EMS, apply CPR, and provide first aid as necessary.

• Inform the detention facility’s custodians of any medical 

problems.

Thanks for listening. I hope you have found these podcasts 

useful. If you have suggestions or comments, please send them 

to Tim Miller at my email address: Tim.Miller@dhs.gov.