When Force is Excessive and Unnecessary

Sunil Dutta, the cop who tells us to follow orders and we won’t get brutalized, defines excessive force this way: “The moment a suspect submits and stops resisting, the officers must cease use of force.” By “excessive” he means force applied beyond the moment of compliance. What is not excessive is what he will do to you if you do not comply: “if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?”

But excessive force is not only force beyond what is required to gain compliance (a different definition than he uses), but also force that may cause significant physical discomfort or injury. Dutta’s definition implies that any degree of force can be used to gain compliance as long as it stops when the subject stops resisting. Remember, as a matter of principle, a person is presumed innocent. Detention and arrest are thus already problematic actions as they are forms of coercion being used against innocent persons (otherwise subjects under police control would be free to go). Coercion that causes discomfort to or injures the person being detained or arrested must be justified in every case, in a court of law, beyond a conviction (which justifies only the facts of detention and arrest and prosecution); unjustified, such actions constitute assault.

It makes no sense for a free society to allow police officers immunity from simple and aggravated assault laws. They are citizens subject to the same laws as civilians. We all have the burden to show why we do what we do at every point that is legally problematic if we mean to justify or excuse our actions. Of course, at the same time, the state has the burden to prove an individual did what he did not for the reasons he said he did if the reasons given differ from what the state claims. But cops cannot claim any legitimacy as an authority if they are permitted to break the laws they are obligated to enforce. Emancipation from having to justify actions that are considered criminal is the ethic of the police state, not of a free society.

There are those who think that (especially when the suspect is of a certain race) no force should be used in affecting an arrest, as if, when a suspect resists, the arresting officer is suppose to say, “Oh, you don’t want to be arrested. My bad. Be on your merry way.” The police have a duty to take a criminal suspect into custody. They are permitted in reaching this end to meet resistance with force. Force carries with it the potential for injury—as does resistance. If one is resisting lawful arrest, then the injury suffered may very well be that person’s fault. Resisting is not the police officer’s fault. He’s doing her job. If we are going to make policy that police officers can’t use force, we might as well give up and let criminals do what they want. The question is not whether force is necessary. The question is when force is excessive and unnecessary.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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