Wiley is an author on a variety of legal topics, including:

-Wellness programs

-Spoliation of evidence

-Shareholder employees

-Lost profits claims

-Expert witness qualifications

-Golden parachutes

-Employment contracts

-Employment at-will

Recently, Wiley an article published in the official publication for the Minnesota State Bar Association, Bench & Bar: “Force: Disentangling Constitutional Standards,” published in the July 2011 issue of Bench & Bar (link below).  This influential piece is already changing the face of civil rights law in the State of Minnesota and beyond.  Follow this link to read the piece:

Excessive Force Claims: Disentangling Constitutional Standards


Below, I include a supplemental article with some practical, bread and butter considerations for litigants, and in particular, defense counsel.

Force: Practical Application and The Death of Force Continuums.

Why Do Plaintiff’s File Constitutional Claims, Rather than Tort Claims?

There are compelling reasons for a plaintiff to claim that law enforcement or other governmental officials are violating the Constitution, rather than just acting negligently. First, constitutional claims are pursued by citizens through 42 U.S.C. §1983.  Such claims may be brought in federal court, and a prevailing plaintiff is entitled to attorney’s fees for successful claims under 42 U.S.C. §1988.  Second, claims brought under Section 1983 are not subject to the statutory cap on damages (imposed by Minnesota among other states) that may be awarded against political subdivisions in tort claims.[i] Third, many state tort claims are subject to restrictive immunity defenses.  To be sure, there are powerful qualified immunity defenses to Section 1983 claims as well, but in many instances, the tort immunity doctrines are broader.  In sum, a plaintiff has a greater chance to prevail in a Section 1983 claim alleging constitutional harm, and the plaintiff may recover uncapped compensatory damages and attorney’s fees by alleging a constitutional excessive force claim rather than a mere negligence claim.

A Brief Review of Standards

The constitutional standards for permissible force depend entirely upon the custodial status of the alleged victim of force—that is, whether the victim is a pretrial detainee, a convicted criminal, or a free citizen.

  • A pretrial detainee is protected under the Fourteenth Amendment’s right to substantive due process, and to violate the Constitution the official’s use of force must be “conscience-shocking” (with two separate culpability standards depending on whether the situation is an emergency, or not);
  • An incarcerated convict is protected under the Eighth Amendment’s cruel and unusual punishment clause, and to violate the Constitution the official’s force must be used  “maliciously and sadistically with the very purpose of causing harm;” and
  • A free citizen is protected under the Fourth Amendment’s search and seizure standard, and to violate the Constitution an official’s use of force must not be “objectively reasonable.”

Force Factors

Each type of excessive force claim invokes a balancing test, comparing the governmental official’s objectives with the citizen’s rights.[ii]  Even the least stringent reasonableness analysis requires the court to evaluate the totality of the circumstances, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (commonly referred to as the “Graham Factors”).[iii]   These factors can be used in all types of excessive force claims.

Courts have also listed specific factors to be considered in to aid in determining whether a use of force violates the conscience-shocking standard:

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm.[iv]

The Whitley court also noted that the above factors may be used to help infer wantonness, and stated that, in a prison environment, “equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.”[v]

In each type of case, the constitutional standards provide law enforcement officers with substantial latitude to describe all of the circumstances that led the officer to use force and to justify why a certain level of force was used in a given case.

Use of hindsight prohibited

The Supreme Court has made clear that the reasonableness of the 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.”[vi]  The facts known to the officer at the time must be viewed from that officer’s actual perspective at the time.  Accordingly, facts learned about the actual circumstances of a use of force situation that are gleaned after the fact are immaterial when determining whether the officer’s use of force was permissible under the Fourth Amendment.  For instance, evidence that a suspect actually held a toy or a cell phone, rather than the gun the officer mistakenly thought the suspect held, should be kept out of evidence.  Instead, only credible evidence that the officer thought the suspect held a gun should be admitted into evidence.  If it were otherwise, facts are being introduced for the judge or jury’s consideration that the officer could not possibly have known, and, would therefore allow the impermissible us of 20/20 hindsight into the fact finder’s judgment.[vii]  Unless the officer’s belief was unfounded or known to be false, the officer’s perception that the suspect was holding a gun controls in the Constitutional analysis.[viii]

Tense and evolving circumstances must be considered

Law enforcement personnel have difficult jobs.  They, frankly, never know what dangers they might confront in a given help call or situation.  The Graham test accounts for this: “The calculus of reasonableness must embody allowance for the fact that police officers are often 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.”[ix]  In other words, officers are provided a certain level of latitude for mistaken action or belief based on the difficulty inherent in use of force situations that they frequently confront, and a range of reasonable force responses, even if it is later determined that a lesser amount of force may have accomplished the governmental objective, will pass Constitutional muster.

A multitude of reasonableness factors

The Supreme Court stated that, before an event, it is impossible to predict whether a certain type of force will be permissible or impermissible because the circumstances that officers’ confront vary so dramatically.  “Because ‘the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application’ . . . its proper application requires careful attention to the facts and circumstances of each particular case.”[x] Moreover, the Graham factors, as noted above, are non-exclusive.  Law enforcement defendants may use any relevant circumstance that led to the officer’s decision to use force as part of the “totality of circumstances” test.

The list of potential factors that influence whether force is used and the level of that force is lengthy indeed.  In addition to the oft-applied Graham Factors discussed above, officers may also consider: the number of suspects and officers involved; the availability of back-up; the relative size, age, and physical condition of officer compared with the suspect; known or perceived physical abilities or training of the suspect;  the duration of the conflict or incident and resultant fatigue; any injuries to the officer; and any history of violence or mental health issues of the suspect known to the officer at the time of the incident.  The officer may also consider strategic and tactical environmental considerations such as slipperiness, uneven ground, heat, surrounding terrain, and other conditions that might affect the relative strategic position of the officer vis-à-vis the suspect.

Law enforcement officers are also familiar with “pre-assault indicators,” which are factors that officers are trained to recognize in a suspect that suggest a physical confrontation may be imminent. Some pre-assault indicators include:

  • Perception of a suspect’s use of drug or alcohol
  • Availability and proximity to weapons
  • Perception that suspect may be armed, including:
    • Bulges in clothing
    • Long coats
    • Reaching for waistband, where the gun is likely to be secreted (suspects rarely have holsters)
    • Frequent or unnatural adjustments to clothing
    • “Security touches” when a suspect might be confirming the presence of a weapon on his person.
  • Unusual dress/appearance for weather conditions (i.e., a suspect wearing a coat when it is warm)
  • Unprovoked flight
  • Hiding
  • What the suspect is saying– abusive language and threats
  • The manner in which the suspect speaks to law enforcement (e.g., defiant, yelling, disrespectful)
  • Rolling up sleeves
  • Change of posture, shifting of body weight
  • A sudden closing of the distance between the officer and the suspect
  • Clenched fists
  • Clenched jaw, wide eyes, a “1000 yard stare”
  • Lunging and grabbing
  • Scanning the area for other law enforcement, people or paths of escape.

Although this list is a lengthy one, it is not exhaustive. All of these factors and more may influence an officer’s decision to use force, and influence the amount of force used.  Supreme Court precedent in Graham allows officers to use any of the factors to explain the reasonableness of the use of force under the circumstances of a particular case.  These factors are equally relevant for claims by pretrial detainees and prisoners.

The slow death of use of force continuums

A reevaluation of Graham, though it is quite an old case (circa 1989), has spawned a fairly recent movement among law enforcement agencies to abandon the concept of use of force continuum’s.  Agencies that had used continuum’s attempted to define a certain level of force that would be considered reasonable when faced with a certain type of conflict situation.  For instance, a hand-to-hand combat response would be considered appropriate in instances where a suspect was not compliant with orders, whereas, under some published continuum’s, the use of a pepper spray or taser would be appropriate if a suspect was non-compliant and in some way threatening.  Some continuum’s allowed officers to escalate force to one level higher than the level of force exhibited by the suspect (referred to as “one plus” systems).

The defects in such use of force continuum’s were numerous, including that: (1) they were difficult to apply in the multitude of potential circumstances that officers confront; (2) they were unduly confining under some exigent circumstances and limited an officer’s use of force calculus to just a few predetermined responses; (3) they were more restraining than the Graham standard—which allowed for consideration of the totality of the circumstances and explicitly recognized that there might be a range of reasonable responses to the same use of force situation; and (4) continuums unfailingly contained an exception that the continuum could be abandoned as circumstances required.  The rigidity of most use of force continuums required officers that deviated from the standard published responses to justify the deviation, rather than merely explain that their response was reasonable under the circumstances as required by Graham.

Based on these deficiencies, many law enforcement communities, including the Federal Law Enforcement Training Center and the Minnesota Sheriff’s Association, have advocated moving away from rigid use of force continuum’s and revising policies to reflect the flexibility and practicality inherent in Graham’s holding concerning the “totality of circumstances.”  Newer policies are more flexible and recognize, as the 8th Circuit has, that a range of force responses may be reasonable in a given situation, based on a wide variety of factors.


Based on the proper legal analysis, and given the deference courts apply to law enforcement based on the difficult situations that they frequently confront, law enforcement defendants have a great deal of latitude to justify the use of force, whether against a citizen, pretrial detainee or prisoner.   Defense counsel should be aware of the appropriate standards and the wide variety of factors that may influence a use of force.


[i] See Minn. Stat. §466.04 (limiting damage claims to between $300,000 and $500,000, depending on when the cause of action accrued.

[ii] Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal marks omitted).

[iii] Id. at 396 (citation omitted).

[iv] Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) .

[v] Glick, at 1085.

[vi] Id. at 396.

[vii] Based on this case law, it is advised that all defendants in these types of claims bring a motion in limine to exclude consideration of this type of evidence.

[viii] See, i.e.,  Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001) (where suspect makes a move as if he has a gun, officer is entitled to assume the suspect is armed, even if it is later discovered the suspect was unarmed).

[ix] Graham, 490 U.S. at 396-97.

[x] Id. at 396 (citation omitted)