From FBI Law Enforcement Bulletin - October 2002 Volume 71 Number 10

Use-of-Force Policies and Training: A Reasoned Approach

Thomas D. Petrowski, J.D.

     The United States is currently experiencing an unprecedented level of violence. For example, the per capita rate of aggravated assaults has increased nearly 500% since 1959.¹ This growth in violent crime forever has altered training in the use of force by law enforcement. While there has been a decrease in the number of law enforcement officers feloniously killed each year,² injury to any law enforcement officer who is a victim of attack is unacceptable. In reviewing felonious assaults on law enforcement officers resulting in death or injury, one common denominator often is conspicuously present—the victim officer hesitated in responding with force. During post-incident review of assaults on police, victim officers often indicated that they were uncertain about what force options were permissible under law or department policy and that they did not perceive their attacker to be a serious threat until it was too late. This hesitation is tragic and often avoidable.

Constitutional Limits

     The seminal case defining the modern constitutional constraints on law enforcement use of force is the 1989 U.S. Supreme Court decision in Graham v. Connor.³ The case involved an investigative detention of an individual and the use of nondeadly force by the detaining officers that resulted in injury to the detainee. While the U.S. Supreme Court did not decide whether the use of force by the detaining officers was constitutionally permissible,⁴ the Court defined how use of force by law enforcement should be constitutionally evaluated. The decision demonstrates that the Court understands the dynamics of violent encounters and the practical safety issues law enforcement officers face. The Court makes clear that the law profoundly distinguishes between the dangerous and the endangered and pays great deference to officers who use force to defend themselves or another.

     The Court held in Graham that the use of force by law enforcement while making a seizure—to include force used in self-defense or defense of another—is evaluated under the Fourth Amendment. Such conduct, therefore, is analyzed for reasonableness since the Fourth Amendment prohibits “unreasonable searches and seizures.”⁵ The test of what is reasonable is a common sense evaluation of what an objectively reasonable officer might have done in the same circumstance. The Court held reasonableness is an objective standard viewed from the officer’s perspective:

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 hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers often are forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation. As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them....⁶

The legal question is whether an objectively reasonable officer could have taken the action in issue. Put another way, an unreasonable use of force is one that no objectively reasonable law enforcement agent would have used. It does not involve any subjective information regarding the officer who used the force, such as training, age, or experience. For example, in McLenagan v. Karnes,⁷ the Fourth Circuit Court of Appeals applied the Graham objective reasonableness standard. In McLenagan, a police officer shot an individual he perceived to be armed and posing a deadly threat (the individual turned out to be neither armed nor posing a threat). Within moments after shooting the plaintiff, the defendant police officer realized he had shot the wrong person and then—for no reason offered in the opinion—fired two rounds through a closed door where the subject may have been. Those two rounds, while not injuring anyone, were clearly unreasonable.

     In finding the use of force by the officer against the plaintiff to be reasonable, the court noted: “To ascertain whether probable cause existed for [the police officer] to fire his weapon, we consider the particular circumstances confronting the official at the time of the questioned action...if a reasonable officer possessing the same particularized information as [the police officer] could have...believed that his conduct was lawful, then [the actions of the police officer were reasonable].”⁸ With respect to the two additional rounds fired after the plaintiff was shot, the court noted that “...such conduct might be indicative of an officer’s propensity for ill-considered actions...[h]owever, in this case, [the officer] had no time to consider anything at all—except his and the public’s immediate safety. At the moment of truth, [the officer] acted well within the range of behavior expected of a police officer. What happened after the critical time had passed is simply irrelevant.”⁹

The court in McLenagan also addressed the fundamental Fourth Amendment principle that law enforcement officers need not be correct—only reasonable—in their decisions to use force. The court held: “We will not second-guess the split-second judgment of a trained police officer merely because that judgment turns out to be mistaken, particularly where inaction could have resulted in death or serious injury to the officer and others. Although it is extremely unfortunate that [the plaintiff] was seriously injured, [the law] does not purport to redress injuries resulting from reasonable mistakes.”¹⁰

The Court in Graham made clear that the determination of reasonableness requires a commonsense pragmatic approach¹¹ from the perspective of an objectively reasonable law enforcement officer to determine whether an officer’s conduct was constitutional. The legal constraints on the use of force by law enforcement are based on practical considerations unique to each circumstance. Unlike other Fourth Amendment contexts, officer’s actions are not based on a specific rule set out by the Court. The Court prefers to give bright-line rules when possible, particularly in Fourth Amendment matters.¹² When such specific guidance is given by the Court, it is important that department policy and training reflect that guidance. However, the constitutional restrictions on law enforcement use of force are not—because they cannot be—bright-line rules. It is critical that use-of-force policy and training not be based on strict rules or, as the Court said in Graham, “mechanical applications.” The law is defined by the realistic functional aspects of each case. In use-of-force training, legal and practical considerations are not two separate subject matters; they are complementary.

     In recognizing that an officer’s decision to use force occurs in “circumstances which are tense, uncertain and rapidly evolving,” the Court underscored that law enforcement agents are reacting to a subject’s refusal to voluntarily comply with the law. It is the subject that dictates what use of force, if any, is necessary and reasonable. Federal case law recognizes the short critical time period in which law enforcement officers must make use-of-force decisions.¹³ This also takes into account the effects of adrenal stress,¹⁴ which is an involuntary reaction with substantial psychological and physiological results that significantly affect a person's capacity to react, perceive information, and recall details.

     The Court in Graham also noted that use of force by police has two distinct justifications. The first is in response to a suspect posing an immediate threat to the safety of the officers or others, and the second is to prevent the escape of a subject.¹⁵ While the use of force under both justifications is evaluated for Fourth Amendment reasonableness, the practical considerations—and, thus, the approach to training—can be quite different. In responding to a subject who is attempting to escape while not posing an immediate danger to the seizing officers, there may be time, albeit seconds, to contemplate force options. However, in response to immediate threats to safety there is virtually never that luxury of time. Training in the use of force must address this distinction. Unfortunately, many use-of-force curricula address both force justifications with the same approach.

Hesitation: The Ever-Present Adversary

     More than 25 centuries ago, Sun Tzu, in his classic military treatise The Art of War, noted that “the worst calamities that befall an army arise from hesitation....”¹⁶ The notion that one must not hesitate in the face of a dangerous threat seems elementary in use-of-force training, but in some training contexts, hesitation is exactly what is encouraged or expressly prescribed.

     Empirical data indicate that law enforcement officers responding to a threat hesitate to use force, particularly deadly force, even in the face of an imminent threat. Studies of military conflict confirm that the vast majority of individual soldiers in combat refused to kill an identified enemy even when they knew that doing so would endanger their own lives.¹⁷ Review of FBI officer victimology studies and information provided by victim officers’ departments¹⁸ indicated that approximately 85 percent of law enforcement officers feloniously killed in the line of duty never discharged their service weapons. Review of individual case studies revealed that victim officers often hesitated—even in the face of an immediate threat.

     FBI Uniform Crime Reports (UCR) data indicated that only a small portion of law enforcement officers who are violently assaulted respond with deadly force.¹⁹ UCR data for the years 1991 through 2000 indicated that 644 law enforcement officers were feloniously killed in the line of duty. The data also indicated an annual average of 60,307 documented assaults on law enforcement officers. An annual average of 10, 994 of these assaults involved a dangerous weapon; an average of 49,313 involved the attacker using personal weapons. It should be noted that these numbers represent assaults documented by a department and then reported to the U.S. Department of Justice. Further, while there are more than 17,000 law enforcement agencies in the United States, the average number of agencies reporting documented assaults was only 8,985. It is safe to assume that these assault statistics are very conservative, if not grossly underreported. UCR data also indicated that during the period 1994 through 2000, law enforcement officers in the United States intentionally killed an annual average of 364 felons while in the line of duty.²⁰ This number does not address those individuals non-fatally shot by law enforcement officers.²¹ There are certainly legitimate reasons that could have prevented officers from using deadly force when it clearly was justified. There could have been tactical reasons to not introduce a service weapon into a conflict; officers may have been murdered with their own weapon,²² been ambushed,²³ or selflessly chose not to shoot because of a danger to a third party. However, the annual rate of fatal use of deadly force by law enforcement officers (364) compared with the annual reported assaults on law enforcement officers (60,307—10,994 of which involved a deadly weapon) is telling. These data, supported by the historical military studies and officer victimology reports, clearly indicated a reluctance on the part of officers to use significant force even when confronted with an imminent threat of death or serious physical injury.

     Compounding the inherent hesitation officers have in using significant levels of force is the instinctive tendency to quickly close with subjects and place themselves between the offender and those they protect.²⁴ Officers are quick to put themselves in harm’s way but are then reluctant to use significant force. Use-of-force training should take this into account and strive to reduce officer hesitation to use force when it is clearly necessary. Unfortunately, some use-of-force training takes the opposite focus of encouraging officers not to use force, particularly deadly force, unless it is preceded by unrealistically lengthy deliberation.

The Use-of-Force Continuum: A Strategy for Hesitation

     In Graham, the Court's insightful statement, “...the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application...”²⁵ was meant to illustrate the notion that every situation involving the use of force by police is unique and that it is impossible to define specific applications of force options. Unfortunately, many law enforcement agencies have adopted training in the guise of a “force continuum,” which is precisely the mechanical application that the Court proscribed for use by lower courts because it is inconsistent with the concept of reasonableness.

     Most use-of-force continua indicate a reflective approach to a menu of force options with the goal of selecting the least intrusive option. The typical force continuum begins with the presence of the officer or with verbal commands and then lists use-of-force options in order of increasing intrusiveness, ending with deadly force. Usually, accompanying language suggests that officers should consider which force option is appropriate and includes the suggestion of “escalating“ their response to a subject with a view toward “de-escalating” the threat posed by the subject. The continuum also usually contains language that suggests officers consider progressing up or down the force continuum. While virtually every force continuum provides that such progressing through force options may not be appropriate in all use-of-force situations, the seed of hesitation is inescapably planted. The word continuum implies a sequential approach.

     The force continuum can be superficially very attractive, particularly when provided in the form of a euphonic acronym. This purports to make it easy to remember the steps of the continuum—which is exactly what it does—resulting in guaranteed hesitation in the face of a threat. The force continuum is most problematic when it is necessary for an officer to apply deadly force or a higher nondeadly force option. An officer trained to progress through a force option menu inevitably will hesitate too long to eliminate all less intrusive force options.

     There may be situations where the progressive escalating force option approach is logical, such as when a subject poses no immediate threat of serious physical harm to anyone while attempting to escape. When there is no immediate threat, officers may have the luxury of time to escalate through force options to use the least intrusive force option. But, to require such an escalating approach when faced with an immediate serious threat is contrary to common sense and the specific direction of the Supreme Court.²⁶ It assumes a propensity by police to use unnecessary force when the empirical data show that the common response is to hesitate. The force continuum purports to provide a mechanical application when officers should be making a subjective threat assessment. It encourages officers to “wait and see,” in the hope that either the aggressors will abruptly change their minds or the assessment of threat by the officer will become very simple. While it is often a prudent practice for departments to have policies that are more restrictive than the law requires to ensure compliance with the law, mandating force continua risks more than the loss of evidence—it risks the lives of officers. While this approach may reduce use of force by police, the risk to officers is significant and not constitutionally required.

     Some departments and vendors take the force continuum even further, employing what they call a “less-lethal” option. That is, while the force option constitutes deadly force, it is less intrusive than other deadly force options. This practice requires that once it is determined (consistent with a review of force options on the continuum) that deadly force is necessary, then a review of options within that level be undertaken. This creates a continuum within a continuum, making an unacceptably long decision process even longer.

The Least Intrusive Alternative

     The goal of force continua—using the least intrusive means to respond to a threat—simply is not constitutionally required. The law does not require officers to select the minimum force necessary, only a reasonable option. The Seventh Circuit Court of Appeals said in Plakas v. Drinski,²⁷ “[t]here is no precedent in this circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used. There are, however, cases which support the assertion that, where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first.”²⁸ Choosing the least intrusive alternative is not legally required because it is an impossible standard to apply to hold law enforcement. The U.S. Supreme Court and every federal circuit in this country recognize this. It is an obvious point that use-of-force trainers and policy makers should heed.

Conclusion

     The constitutional constraints on the use of force by law enforcement require reasonableness. The Supreme Court has identified a number of considerations lower courts should look at in determining reasonableness that emphasize looking at the practical circumstances facing the officer who used force. Each case should be evaluated in light of the particular unique facts from the perspective of the officer at the time the decision to use force was made. The law provides that there cannot be bright-line rules (“mechanical applications”) regarding what force an officer may use. It is the practical considerations that inform the law.

     Hesitation commonly plagues police who are victims of attack. Use-of-force training regarding immediate self-defense differs from use of force to effect a seizure when an officer does not face an imminent threat. When training officers to use force in self-defense or defense of another, the focus must be on removing hesitation. The use of a force continuum perpetuates hesitation and exacerbates a natural reluctance to apply significant force even when faced with a serious threat. The progressive escalating approach—with the goal of using the least intrusive force—should never be applied to defense-of-life training. Next month, the FBI Law Enforcement Bulletin will feature the second part of this article which will address specific use-of-force training strategies and policy considerations.

Endnotes

     ¹ According to U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, aggravated assaults in 1959 occurred at the rate of 67.3 per 100,000 inhabitants. In 1999, the rate was 334.3 per 100,000 inhabitants. The murder rate in 1959 was 4.8 per 100,000 inhabitants and 5.7 in 1999. Obviously, aggravated assault is a better indicator of the increase in violent crime because it shows how often people in this country actually are committing serious acts of violence. The murder rate as an indicator of society’s capacity to be violent is skewed by the significant advances in health care over the past 40 years. This increase in violent crime is particularly cogent in light of recent positive influences on violent crime, such as the legalization of abortion. See John J. Donohue III and Steven D. Levitt, “The Impact of Legalized Abortion on Crime,” The Quarterly Journal of Economics, MIT Press, Harvard University’s Department of Economics, Cambridge, MA. See also David A. Grossman, The Bullet-Proof Mind (Carrollton, TX: Calibre Press, 1999).

     ² During the period 1971 through 1975, the average annual number of law enforcement officers feloniously killed was 128. The annual average for the period 1996 through 2000 was 57. See U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted for the indicated years. The reduction in law enforcement officers killed has been caused primarily by the increased use of bullet-proof vests and improvements in kevlar technology. Other factors that may have contributed to the reduction are better training and police practices.

     ³ 490 U.S. 386 (1989). The Graham decision is relevant only to Fourth Amendment cases. Use-of-force matters involving incarcerated convicts are brought under the Eighth Amendment, and Fourteenth Amendment claims can be brought for use of force by law enforcement that do not apply to either the Fourth or Eighth Amendments.

     While there have been numerous applications of the Graham decision by the Supreme Court and in every federal circuit, in 2001 the Supreme Court generally readdressed the issue in Katz v. Saucier, 121 S. Ct. 2151 (2001). The Court in Katz was extremely pro-law enforcement and made clear that in evaluating the use of force by law enforcement great deference must be paid to the risks assumed by law enforcement and strongly reinforced its previous decisions in police use of force cases. The Katz decision is replete with references of deference to law enforcement in both qualified immunity and constitutional contexts. For example, at 2158: “ We set out a test that cautioned against the “20/20 vision of hindsight” in favor of deference to the judgment of reasonable officers on the scene. Citing Graham, at 396. Emphasis added.
And, at 2158-2159:

     The deference owed officers facing suits for alleged excessive force is not different in some qualitative respect from the probable cause inquiry in [search cases]. Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and, in those situations, courts will not hold that they have violated the Constitution. Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions. The same analysis is applicable in excessive force cases, where in addition to the deference officers receive on the underlying constitutional claim, qualified immunity can apply in the event the mistaken belief was reasonable.

Emphasis added.

     ⁴ The Court remanded the case back to the trial court to apply the Court’s new guidance in determining the reasonableness of police use of force. A jury found the actions of the officers to be reasonable and, thus, constitutionally permissible.

     ⁵ The Fourth Amendment to the Constitution of the United States.

⁶ Graham at 396.

⁷ 27 F.3d 1002 (4th Cir. 1994). ⁸ McLenagan at 1007.

⁹ Id. at 1008.

¹⁰  Id. at 1007.

     ¹¹ The Supreme Court has always reduced the determination of probable cause and reasonableness to a laymen’s view: “[a]rticulating precisely what ... “probable cause” means is not possible. [It is a] commonsense, non-technical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

U.S. v. Ornelas, (U.S. Supreme Court) 517 U.S. 690, 695 (1996) (emphasis added), citing two previous decisions.

     ¹² For examples, see Chimel v. California, 395 U.S. 752 (1969) (officers always may search an arrestee, to include the wingspan area, incident to arrest); Pennsylvania v. Mimms, 434 U.S.106 (1977) (driver of a vehicle always may be ordered to exit vehicle incident to traffic stops); Maryland v. Buie, 494 U.S. 325 (1990) (incident to an arrest in a structure, officers always may conduct a protective sweep of the room in which the arrest occurs and all rooms adjacent thereto);

Michigan v. Summers, 452 U.S. 692 (1981) (officers always may detain occupants of a residence where a search warrant is executed). These cases illustrate the substantial deference the Court gives to those who put themselves in harm’s way by making arrests and conducting searches. The Court tries, where it can, to give law enforcement clear guidance to prevent the difficult decision making that occurs in the “tense, uncertain and rapidly evolving” circumstances of most searches and seizures. However, with respect to review of use-of-force matters they have mandated that each case be individually evaluated, giving great deference to those making such difficult decisions.

     ¹³ “The time-frame [an officer has to respond to a subject] is a crucial aspect of excessive force cases. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing.” Plakas v. Drinski, 19 F.3d 1143, at 1150 (emphasis added) (7th Cir. 1994).

     The notion that an individual attacked will not have time to evaluate responses is not new to the courts. In 1921, the Supreme Court in Brown v. U.S., 41 S. Ct. 501, related at 502:

“Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than kill him.”

     ¹⁴ See generally Alexis Artwohl, Ph.D. and Loren W. Christensen, Deadly Force Encounters: What Cops Need to Know to Mentally and Physically Prepare for and Survive a Gunfight

(Boulder, CO: Paladin Press, 1997).

     ¹⁵ Graham, at 396. For a discussion of the legal aspects of use of force to effect an arrest or to prevent escape, see John C. Hall, “Use of Deadly Force to Prevent Escape,” and “Police Use of Non-deadly Force to Arrest,” FBI Law Enforcement Bulletin, March 1994, 27-32 and October 1997, 27-32, respectively.

     ¹⁶ Numerous translations of The Art of War are available. See translation and commentary by Lionel Giles, published by Indypublish.com, 2001, or translation by Samuel B. Griffith,

Oxford University Press, London, England, 1963.

     ¹⁷ See generally David A. Grossman, On Killing (Boston, MA: Little, Brown and Company, 1996), nominated for a Pullitzer Prize. See also George T. Williams, “Reluctance to Use Deadly Force,” FBI Law Enforcement Bulletin, October 1999, 1-5.

     ¹⁸ A 1992 FBI Uniform Crime Report (UCR) study of law enforcement officers feloniously killed in the line of duty indicated that 85 percent of the officers killed never discharged their service weapons. A review of 148 incidents of law enforcement officers killed from 1998 through 2000 indicated that 125 (84.5 percent) of the victim officers never fired a round at their killer. See U.S. Department of Justice, Federal Bureau of Investigation, Killed in the Line of Duty (Washington, DC, 1992); and U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted (Washington, DC, 1998, 1999, and 2000).

     ¹⁹ See U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted (Washington, DC, 2000).

     ²⁰ See U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States (Washington, DC, 1998 through 2000).

     ²¹ For a discussion of extrapolating the number of individuals shot (fatally and nonfatally), see generally William A. Geller and Michael S. Scott, “The Prevalence of Shootings,” in Deadly Force: What We Know

(Washington, DC: Police Executive Research Forum, 1992).

     ²² During the period 1991 through 2000, 51 of the 601 law enforcement officers killed with firearms were killed with their own weapon (8.5 percent). See U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted (Washing-ton, DC, 2000).

     ²³ During the period 1991 through 2000, 89 of the 644 slain law enforcement officers were ambushed (13.8 percent). See U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted

(Washington, D.C., 2000).

²⁴  See Anthony J. Pinizzotto, Edward F.

Davis, and Charles E. Miller III, “Escape from the Killing Zone,” FBI Law Enforcement Bulletin, March 2002, 1-7.

     ²⁵ Graham at 396 (quoting a prior Supreme Court decision).

     ²⁶ By adopting unnecessarily restrictive polices, departments also may be holding themselves to a higher legal standard. While mere policy violations normally do not give rise to civil rights lawsuits, some courts have held such actions may be viable when the policies have been adopted for the benefit of those ultimately injured. The Ninth Circuit Court of Appeals said in Scott v. Henrich, 39 F.3d 912 (9th Cir. 1992), “Assuming internal police guidelines are relevant to determining whether use of force is objectively reasonable,...they are relevant only when one of their purposes is to protect the individual against whom force is used. Thus, if a police department limits the use of chokeholds to protect suspects from being fatally injured,...or restricts the use of deadly force to protect suspects from being shot unnecessarily,...such regulations are germane to the reasonableness inquiry in an excessive force claim.” Id. at 915. Even if the above policy-

based suit fails, a department that adopts overly restrictive use-of-force continua probably will expose itself to “expert” witnesses who will opine that lack of compliance with a department’s policies indicates an unreasonable use of force.

²⁷  19 F.3d 1143, at 1148 (7th Cir. 1994).

     ²⁸ The first time the U.S. Supreme Court expressly asserted that Fourth Amendment reasonableness did not require the least intrusive alternative was in Illinois v. Lafayette, 462 U.S. 640 (1983). For other examples of courts finding that a law enforcement officer need not select the least intrusive option, see

U.S. v. Sokolow, 490 U.S. 1 (1989); Roy v. Lewiston, 42 F.3d 691 (1st Cir. 1994); Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996); Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996); Collins v. Nagle, 892 F.2d 489 (6th Cir. 1989); Tauke v. Stine, 120 F.3d 1363 (8th Cir. 1997); Schulz v. Long, 44 F.3d 643 (8th Cir. 1995); Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994); Warren v. Las Vegas, 111 F.3d 139 (9th Cir. 1997); Wilson v. Meeks, 52 F.3d 1547 (10th Cir. 1995); Menual v. Atlanta, 25 F.3d 990 (11th Cir. 1994); and Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001). See also the reference to Brown, supra note 13.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.