Police Use of Force Standards Under Colorado and Federal Law - May 2007 - Criminal Law
| Publication year | 2007 |
| Pages | 47 |
2007, May, Pg. 47. Police Use of Force Standards Under Colorado and Federal Law - May 2007 - Criminal Law
May 2007
Vol. 36, No. 5 [Page 47]
Criminal Law
Police Use of Force Standards Under Colorado and Federal Law
by J. Michael McGuinness, Melvin L. Tucker
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Article Editor:
Morris Hoffman, judge for the Second Judicial District Court, Denver
Police use of force law in Colorado provides a framework of rights and defenses to govern often controversial legal disputes over police conduct. The law provides considerable protection against liability for reasonable mistaken beliefs, but also provides remedies for objectively unreasonable excessive force.
Police officer conduct is among the most controversial public interest topics in the country.(fn1) Recent court cases demonstrate the complex legal challenges that often arise from the use of force during police encounters with criminal suspects.(fn2) Because of the unique law enforcement context, special rules have emerged nationally and in Colorado that govern law enforcement use of force. These excessive force rules are substantially different from traditional tort and criminal law principles, and generally are deferential to the perceptions and reasonable beliefs of a theoretical "objective officer" under the particular circumstances at the scene. This article explores the liability standards applicable in determining whether the use of force by Colorado law enforcement officers is unlawfully excessive.
Basic Colorado Police Force Principles
Proper evaluation of a law enforcement use of force case requires analyzing state statutory and common law standards, as well as federal and state constitutional standards. In addition to qualified immunity, the doctrine of mistaken beliefs, and other potential defenses and immunities, Colorado police officers enjoy the right of self-defense and defense of others. Colorado applies the "reasonable belief" standard in excessive force cases.
The most common form of alleged police misconduct is excessive force.(fn3) In use of force cases, the central issue typically is whether an objectively reasonable officer could have reasonably believed that the force employed was appropriate.(fn4) Because the prevailing summary judgment standard, which requires that a plaintiff's fact allegations be generally accepted, many excessive force claims survive summary judgment.
Reasonable Force During Arrest or Detention
CRS § 18-1-707 authorizes peace officers to use "reasonable and appropriate physical force" to make arrests or prevent escapes, when and to the extent the arresting or detaining officer "reasonably believes [such force] is necessary."(fn5) This section goes on to expressly permit the use of deadly force in two circumstances: (1) when the officer reasonably believes such force is necessary to defend himself or herself or others against deadly force;(fn6) or (2) to arrest or detain a person the officer reasonably believes committed a felony, is attempting to escape by using a deadly weapon, or otherwise is likely to endanger human life or inflict serious bodily injury unless apprehended without delay.(fn7)
These Colorado statutory standards are consistent with federal constitutional standards, and provide that officers are "justified in using reasonable and appropriate physical force upon another person when and to the extent that the officer reasonably believes it necessary. . . ."(fn8) Colorado long has recognized the doctrine that police officers may use deadly force based on apparent necessity rather than actual necessity.(fn9)
Reasonable Force in Other Contexts
Police officers interact with citizens in contexts other than arrest and detention. CRS § 18-8-803 generally prohibits excessive police force in any context and subjects police officers who use excessive force to potential liability where there was no reasonable belief that the force used was appropriate.(fn10) However, it defines "excessive force" as that which "exceeds the degree of physical force permitted pursuant to section 18-1-707."(fn11) Thus, although the general use of force statute applies in all contexts, it allows physical force to the extent allowed under the arrest and detention statute. CRS § 18-8-803 also contains a statutory presumption that force is excessive when a police officer continues to apply force after the person has been rendered incapable of resisting.(fn12)
Reporting Requirements
Finally, CRS § 18-8-802 provides that officers have a specific duty to report the use of force by other officers.(fn13) Failure to make this written report within ten days of the use of force constitutes a misdemeanor.
Split-Second Decisions in Use of Force Cases
Before analyzing some recent developments in the use of force arena, it is imperative to recognize the unique context in which most use of force cases arise. In a split second, law enforcement officers must recognize a threat, evaluate its seriousness, and instantaneously employ potentially deadly force against criminal suspects to combat apparent dangers to citizens, bystanders, fellow officers, and themselves.
The time involved in this process presents a "gap" during which the circumstances and positioning often change. Law enforcement trainers refer to this phenomenon as "the reactionary gap."(fn14) There is "lag time" between the recognition of the apparent threat and the actual use of force. In the time it takes to unholster, prepare, and fire a weapon, the position of the suspect often has changed. This reactionary gap or lag time phenomenon often explains and justifies shootings from side or rear angles.(fn15)
Scores of cases have acknowledged that "an officer oftentimes only has a split second to make the critical judgment of whether to use his weapon."(fn16) The evolving body of use of force law mandates a complete factual assessment of the unique facts and circumstances "at the moment" of the particular use of force. The law expressly prohibits courts and juries from "Monday morning quarterbacking" in these cases.(fn17)
The Constitutional Objective Reasonableness Standard
In the 1989 decision in Graham v. Connor,(fn18) the U.S. Supreme Court enunciated the parameters of use of force law under the Fourth Amendment. Plaintiff Graham, a diabetic, alleged that he had a friend drive him to a convenience store to buy orange juice to counteract an oncoming insulin reaction. Graham entered the store but hurried out after becoming concerned about delay when he observed a number of people ahead of him in line. An officer observed Graham hastily enter and leave the store. The officer became suspicious, followed the car in which Graham was traveling, and made an investigatory stop. Graham's friend informed the officer that Graham was suffering from a "sugar reaction." The officer ordered Graham and his driver to wait while he determined what happened at the convenience store. When the officer called for assistance, Graham got out of the car, ran around it twice, sat on the curb, and briefly lost consciousness.
Other officers arrived on the scene and handcuffed Graham. One officer expressed his observation that Graham was drunk. Several officers then lifted Graham and placed him face down on the hood of the car. Graham regained consciousness and asked the officers to check his wallet for his diabetic seal. Graham alleged that an officer told him to shut up and forced his face down against the hood of the car, and the officers then threw him head first into the police car. A friend brought Graham some orange juice but the officers allegedly refused to let him have it. After the officers determined that Graham had done nothing wrong at the store, they drove him home and released him. During the encounter, Graham allegedly suffered physical injuries.
The Court set forth the following rules for analyzing reasonableness in alleged use of force cases:
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 hind sight.
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make...
To continue reading
Request your trial