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Summary of Excessive Use of Force

What is Excessive Use of Force?

Excessive use of force is any force used in an illegal arrest or unreasonable use of force in a lawful arrest or detention.

Under well established federal law, an Officer is prohibited by the 4th Amendment from using excessive force.

The United States Supreme Court in Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989) explained that what constitutes reasonable force is to be determined by an objective standard with careful attention to the facts and circumstances of each particular case. “Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8-9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure”).

…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, without regard to their underlying intent or motivation….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.”

Virginia Common Law Right of Self-Defense to Excessive Use of Force

The Virginia Supreme Court and Court of Appeals has long recognized the common law  right to use reasonable force to repel an unlawful arrest.

Judge Beales explained the right and risk of resisting an illegal arrest in Lightfoot v. Commonwealth, No. 0313-20-2, 2021 Va. App. LEXIS 55, at *8-9 (Ct. App. Apr. 6, 2021): “Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest.” Commonwealth v. Hill, 264 Va. 541, 546, 570 S.E.2d 805 (2002). “The underlying rationale supporting this common law right is the ‘provocation’ of an illegal arrest, which operates to excuse an assault directed at thwarting the unlawful arrest.” Id. at 547. “An unlawful arrest was considered a great provocation at common law because of the dire consequences, including incarceration of extreme duration, which often resulted before an accused was permitted a trial for the charged offense.” Id. However, “to the extent a suspect exercises his right to resist an unlawful arrest, he gambles that the facts and circumstances viewed objectively from the officer’s perspective will not support a finding of probable cause.” Doscoli, 66 Va. App. at 426 (emphasis in original).

Lightfoot v. Commonwealth, No. 0313-20-2, 2021 Va. App. LEXIS 55, at *8-9 (Ct. App. Apr. 6, 2021)     The court failed to discuss the greatest risk – that the police officer kills or injures the subject.

“To constitute obstruction of an officer in the performance of his duty,  it is not necessary that there be an actual or technical assault upon the officer, but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct action and forcible or threatened means. It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.”

Jones v. Commonwealth, 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925)

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