Constitutional restrictions on the use of force by peace officers.  The United States Constitution protects citizens from excessive force by the government.  Depending on the custodial status of the person against whom force is being used, the Fourth or Fourteenth Amendment provides the legal standard for determining whether the use of force is permissible.  For example, when a person is subject to arrest or detained pretrial, courts have held that the use of force by a peace officer must be reasonable under the totality of the circumstances.  Whether a peace officer's actions are considered reasonable depends upon several factors.  This may include the severity of the crime, the threat to the safety of the peace officer or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.  When a person is injured by excessive force, the primary legal remedy is to seek damages through a civil cause of action for deprivation of constitutional rights under 42 U.S.C. §1983. 

State standard for the use of force by peace officers.  In 2021, the state enacted a standard for use of force by peace officers, including separate restrictions on the use of physical force and deadly force.  Under the standard, a peace officer may use physical force against another person when necessary to:  protect against criminal conduct where there is probable cause to make an arrest; effect an arrest; prevent an escape; or protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.

A peace officer may use deadly force against another person only when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person.  "Necessary" means that, under the totality of the circumstances, a reasonably effective alternative to the use of deadly force does not exist, and that the amount of force used was a reasonable and proportional response to the threat posed to the officer and others.  "Imminent threat of serious physical injury or death" means that, based on the totality of the circumstances, it is objectively reasonable to believe that a person has the present and apparent ability, opportunity, and intent to immediately cause death or serious bodily injury to the peace officer or another person.  "Totality of the circumstances" means all facts known to the peace officer leading up to and at the time of the use of force, and includes the actions of the person against whom the peace officer uses such force, and the actions of the peace officer.

A peace officer must use reasonable care when determining whether to use physical force and when using any physical force against another person.  To that end, a peace officer must:

• when possible, exhaust available and appropriate de-escalation tactics prior to using any physical force;
• when using physical force, use the least amount of physical force necessary to overcome resistance under the circumstances, which includes a consideration of the characteristics and conditions of the person for the purposes of determining whether to use force against that person and, if force is necessary, determining the appropriate and least amount of force possible to effect a lawful purpose;
• terminate the use of physical force as soon as the necessity for such force ends;
• when possible, use available and appropriate less lethal alternatives before using deadly force; and
• make less lethal alternatives issued to the officer reasonably available for his or her use.

By July 1, 2022, the Attorney General must develop and publish model policies on use of force and de-escalation tactics consistent with the standard.  By December 1, 2022, all law enforcement agencies must adopt the model policy or otherwise adopt policies consistent with the standard.  Law enforcement agencies may adopt policies or standards with additional requirements for de-escalation and greater restrictions on the use of physical and deadly force.  Law enforcement agencies must provide copies of policies and additional information to the Attorney General, including any future modifications.

The authority of a peace officer to use physical force against a person, subject to the requirement to exercise reasonable care, is expanded with respect to protecting against and investigating criminal conduct.  A peace officer may use physical force against a person when necessary to protect against a violent offense, a sex offense, an assault, or domestic violence when there is reasonable suspicion that the person has committed or is committing the offense or to protect against any other criminal offense when there is probable cause that the person has committed or is committing the offense.  A peace officer may also use physical force against a person when necessary to effect a temporary investigatory detention when there is reasonable suspicion that the person has committed or is committing a violent offense, a sex offense, an assault, or domestic violence.

"Violent offense," "sex offense," and "domestic violence" have the same meaning as provided under the Sentencing Reform Act.  "Assault offense" means Assault in the first, second, third, or fourth degree, or Assault of a Child in the first, second, or third degree.