Setting Standards for Police Use of Force

Last week, the House passed a bill that will update two laws enacted last year related to the use of force by police.  Act 147 established a criminal offense, holding law enforcement officers criminally accountable if they use a chokehold on a person and cause serious bodily injury or death. Act 165 established statewide statutory standards governing police use of force, including the use of deadly force.

Act 165 tightened the existing restrictions on use of force in several ways. First, in determining whether a use of force was justified, Act 165 requires a court to look, in part, at an officer’s conduct and decisions leading up to the use of force. Did the officer seek to deescalate the situation to avoid having to use force?  Or did the officer instead escalate the situation, making the use of force inevitable?  Without these new standards, to determine if the use of force was justified, courts generally would look only at the moment when force is used, without also considering what led up to the use of force.

Second, the law says that any use of force must be reasonable, necessary, and proportional in order for it to be found to be justified.

Third, when an officer knows that a person is impaired due to a mental illness or some other factor, the officer must take that into account in determining what, if any, force to use in the situation.

Fourth, for use of deadly force to be justified, that use must be objectively reasonable and necessary to counter an immediate threat of death or serious bodily injury.  If there is a reasonable alternative to the use of deadly force to counter the threat, the officer must go with the alternative.  Also, the force applied must cease as soon as there is no longer a threat.

Fifth, Act 165 and Act 147 banned chokeholds, although their use could be justified when deadly force was justified.

Finally, Act 165 had an effective date of July 1, 2021 to allow the Department of Public Safety (DPS) to produce a policy to put the use of force standards into effect. DPS has dutifully taken up the task and continues its work on those implementing policies.

To assist it in drafting these policies, DPS asked the legislature to clarify certain parts of the use of force law. Last week, the House passed H.145, which would provide the necessary clarifications.

The primary need for clarification involves chokeholds. H.145 clarifies the definition of chokeholds. It makes the definition easier to use and more straightforward to make sure that we are covering the actions that we mean to address. The bill also makes clear that an officer must intervene when another officer is using a chokehold when deadly force is not justified. Finally, it clarifies that a law enforcement officer may not use a chokehold unless deadly force is justified. This means that a law enforcement officer may use a chokehold when faced with a situation requiring the use of deadly force.

These changes do not ease the restrictions on the use of chokeholds. The statutory standards for use of deadly force remain strict.  But there are situations where the use of a chokehold may be the best or only option that a law enforcement officer has in a life or death situation.  If an officer’s only option is use of a firearm, that could result in more fatalities than if the officer could use a chokehold in such a situation. In short, H.145 continues strict restrictions on the use of chokeholds but recognizes that in very limited circumstances their use may be justified.