provocation”) or the unintentional killing of a human being resulting from recklessness or criminal negligence;
Kidnapping: restricting another person’s movement or forcing them to move from one location to another against their will;
Attempt: intending and actually trying, unsuccessfully, to commit some underlying crime. For example, planning and attempting to kill another person would not constitute the crime of murder because it did not result in a death, but it could constitute the crime of attempted murder; and
Conspiracy: entering into an agreement to commit some underlying crime. For example, planning with another person to kill someone could constitute the crime of conspiracy to commit murder.
State criminal law could potentially apply to a range of actions that officers might take in a use-of-force situation: it is not at all uncommon, for example, for an officer to threaten to use force (assault), to tackle, handcuff, and search the subject (batteries), and to secure them in a police vehicle and transport them to a booking facility (kidnapping). Obviously, we use this example to demonstrate that state criminal law is potentially implicated when an officer uses force, not to suggest that an officer’s actions, taken in the normal course of their duties, will amount to crimes. In this section, we are concerned only with identifying the type of actions regulated by state criminal law. Later in this chapter, we provide a more in-depth discussion of how to determine whether state criminal law applies in any given case.
Civil (Tort) Law
Like criminal law, there is no one action or set of actions that are regulated by state tort law. Instead, state tort law applies most clearly when there is cognizable harm to a person (emotional harms, personal injury, or death) or property. State tort law may be best understood by dividing it into intentional torts and negligent torts, both of which are potentially implicated by the use of force by police.
Intentional torts are harms resulting from actions that are purposefully performed. Here are some of the most common intentional torts in the police use-of-force context.
Trespass to chattels, which typically refers to damage done to personal property;
Battery, which typically refers to physically touching another person without their consent;
Assault, which typically refers to threatening to commit or attempting to commit a tortious battery;
False Imprisonment, which typically refers to restraining another person against their will; and
Intentional Infliction of Emotional Distress, which typically refers to intentionally engaging in conduct that reasonably results in outrage.
Some common negligent torts in the police use-of-force context include:
Negligence, which typically refers to the infliction of personal injury resulting from a failure to exercise reasonable care; and
Negligent Hiring, Training, or Retention, which typically refer to a police agency or political subdivision’s failure to exercise reasonable care when hiring, training, or continuing to employ officers.
Some tort claims may involve claims of intentional or negligent conduct, depending on the specific facts. A wrongful death claim, for example, can be predicated on an allegation that an officer intentionally killed someone or that an officer’s negligence resulted in someone’s death.
Regulatory Law
As described above, almost all of the states require officers to earn and maintain professional certifications, and most states have the authority to revoke those certifications under certain circumstances. Sixteen states can revoke an officer’s certification only after the officer is convicted of a crime, while other states can revoke an officer’s certification if they find that the officer engaged in specified types of misconduct, independent of any other civil or criminal remedies.15 Even in the states that either lack revocation authority or have only tightly limited revocation authority, state law allows for functional equivalents: in California and Massachusetts, an officer’s certification is voided if they are convicted of a felony, while New Jersey has a robust “forfeiture of office” statute that strips public officials, including police officers, of their public office if they are convicted “of an offense involving dishonesty,” of an offense of a certain level of severity, or “of an offense involving or touching [the official’s] office, position or employment.”16
In addition to police certification, state law can also regulate officer hiring. Connecticut law, for example, prohibits police agencies from hiring any individual who was previously employed as an officer and “(1) was dismissed for malfeasance or other serious misconduct calling into question such person’s fitness to serve as a police officer; or (2) resigned or retired from such officer’s position while under investigation for such malfeasance or other serious misconduct.”17 “Serious misconduct” is defined to mean “improper or illegal actions taken by a police officer in connection with such officer’s official duties . . . including . . . repeated use of excessive force.”18
How Does the State Law Standard Apply?
Imagine a random person—we’ll call him John—who walks up to someone else in a shopping mall, tackles them, ties their hands together, carries them out to the parking lot, places them into a waiting vehicle, drives them across town, and locks them in a small room. In most contexts, John would be committing a series of serious crimes and opening himself to substantial civil liability. If John was actually Officer John, though, he may engage in functionally identical actions without running afoul of state law. Analysts must consider whether an officer’s use of force is the type of action—or, more pertinently, caused the type of social harm—that state law regulates; that is, does state law apply to what the officer did? That is only the first half of the analysis, though. The second and equally important half of the analysis is determining whether state law authorized an officer to take the action or cause the harm under the circumstances. In other words, did the officer violate the applicable state law?
State statutes and common law doctrines can explicitly authorize police officers to engage in what would otherwise be criminal or tortious behavior.2 They can also exempt police officers from otherwise applicable restrictions or provide officers with defenses to civil liability or criminal sanctions. For our purposes, there is no relevant distinction between authorizations, exceptions, and defenses; all three effectively allow officers to engage in what could otherwise be unlawful actions. Such authorizations, exceptions, and defenses can be police-specific—for example, authorizing officers, but not others, to act in particular ways—or more generally applicable, including officers within the scope of a broader legal rule.
In the remainder of this chapter, we first address the relationship between the constitutional standard and the state law standard. We then discuss police-specific state laws before broadening our perspective by briefly discussing more generally applicable state laws. Readers are advised that the statutory analysis offered in the following pages is accurate as of the date of writing, but, as always, state law is subject to amendment.19
The Relationship Between the Constitutional
