What is Excessive Force? Don’t ask the experts!

by Cranfill Sumner & Hartzog LLP

We are all very familiar with the recent incidents that occurred in Ferguson, Missouri and New York City.  These two incidents brought to the national spotlight (yet again) the difficult, split-second decision making required by police officers concerning the level of force necessary in the line of duty.

The Ultimate Issue: Was the Force Used Reasonable? 

Excessive force cases raise many important issues – both from a social and political perspective.  From a legal perspective, however, the ultimate issue is whether the police officer’s use of force was excessive or unreasonable given the circumstances presented. 

Recently, this issue has been debated in both the news and social media.  Like you, I have watched with interest as constitutional law and use of force experts give their opinions on officers’ actions in an effort to sway the public to one side or the other. 

Claims alleging excessive force by police officers are analyzed under the Fourth Amendment “reasonableness” standard.  The Fourth Amendment does not require police officers to use the least intrusive means in the course of an action, only reasonable ones.  This principle has consequences on the evidence that the trial court may allow a jury to consider. 

Experts’ Opinions on Excessive Force: Inadmissible in Court

Unlike the court of public opinion, in the court of law, experts would not be allowed to testify as to whether the police officer’s use of force was excessive or unreasonable.  That is for the jury, and the jury alone, to determine. 

Experts, however, are allowed to testify about whether the degree of force used was in compliance with well-established police standards.  This is an important distinction because under the Rules of Evidence an expert witness’s testimony may not usurp the jury’s fact-finding function – to decide the ultimate issue in a case.  In these cases, the ultimate issue is whether the officer’s use of force was reasonable or excessive. As a result, experts are not allowed to give an opinion on that issue.

Selecting an Expert: What to Consider

When retaining an expert is use of force cases, it is important to understand what opinions will actually be admissible in court. 

Look for and retain an expert who is:

  • Highly qualified in police procedures and standards, and 
  • Has experience in training police officers to follow these procedures and standards. 

These opinions are admissible, and will help the jury reach the ultimate conclusion that the officer’s use of force was reasonable under the circumstances presented. 

So, while listening to experts debate use of force issues in the media may make for dramatic television in an attempt to sway public opinion, don’t forget that when use of force cases get to court, these same experts must remain silent on the ultimate issue.  Instead, it will be twelve individuals in a locked room who will be debating and deciding the use of force issue. Now THAT would make for dramatic reality television.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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