L3R – 7.4 Legality of Use of Force

Legality of Use of Force

The use of force is understandably restricted through many different pieces of legislation in order to protect citizens from abuse. These laws also serve to defend individuals from litigation by defining when the use of force is appropriate. As a security officer, you may experience situations where force is warranted. The following statutes explain the current perspective on the use of force starting with its grounding in the Constitution and Penal Code.

I      The United States Constitution

a.    4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

b.    8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

c.    14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

d.    Seizure of a Person

The United States Constitution spells out that the seizure of a person is an arrest. In United States v Mendenhall (1980), the Court held that a person is seized only when, by means of physical force or show of authority, his freedom of movement is restrained and, in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.

e.     42 USC Sec. 1983 – Federal Civil Rights Act

Every person who under color or any state statute, ordinance, regulation, custom, or usage, of any state or territory subjects or causes to be subject any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

II       Penal Code

a.    Protection of Persons

PC 9.02 – Justification as a Defense

It is a defense to prosecution that the conduct in question is justified under chapter 9. To prove justification, it must be beyond a reasonable doubt and not by a preponderance of evidence. The defense must prove the justification.

PC 9.03 – Confinement as Justifiable Force

Confinement is justified when force is justified by chapter 9 if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense. Confinement as justified force does not apply to persons who have been confined due to an arrest.

PC 9.04 – Threats as Justifiable Force

The threat of force is justified when the use of force is justified by chapter 9. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

PC 9.05 – Reckless Injury of Innocent Third Person

Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

PC 9.06 – Civil Remedies Unaffected

The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.

PC 9.21 – Public Duty

Conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.

The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F).

The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.

The justification afforded by this section is available if the actor reasonably believes:

  • the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or
  • his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.

PC 9.22 – Necessity

Conduct is justified if:

  • the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
  • the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct

PC 9.31 – Self-Defense

A person is justified in using force against another when and to the degree that the actor reasonably believes that the force is necessary to protect the other’s use or attempted use of unlawful force.

The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

  • knew or had reason to believe that the person against whom the force was used:
    • unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
    • unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
    • was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
  • did not provoke the person against whom the force was used; and
  • was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

The use of force against another is not justified:

  • in response to verbal provocation alone;
  • to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
  • if the actor consented to the exact force used or attempted by the other;
  • if the actor provoked the other’s use or attempted use of unlawful force, unless:
    • the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

  • the other nevertheless continues or attempts to use unlawful force against the actor.

  • if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:
    • carrying a weapon in violation of Section 46.02; orpossessing or transporting a weapon in violation of Section 46.05.

The use of force to resist an arrest or search is justified:

  • if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
  • when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.
Application of Self-Defense

In the event a security officer or any person utilizes greater force than necessary to make an arrest, the same statute (PC 9.31 Self-Defense) would most likely apply. The force used to make an arrest must be reasonable. If an arrest is being made, and the person making the arrest is using greater force than necessary, the person being arrested can respond with force to protect themselves.

PC 9.32 – Deadly Force in Defense of Person

A person is justified in using deadly force against another:

  • if the actor would be justified in using force against the other under Section 9.31; and
  • when and to the degree the actor reasonably believes the deadly force is immediately necessary:
    • to protect the actor against the other’s use or attempted use of unlawful deadly force; or
    • to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

  • knew or had reason to believe that the person against whom the deadly force was used:
    • unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
    • unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
    • was committing or attempting to commit an offense described by Subsection (a)(2)(B);
  • did not provoke the person against whom the force was used; and
  • was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Note: It is possible to follow this correctly and still face consequences. If deadly force is justified and a court finds your actions necessary, that does not mean that you cannot and will not be held civilly.

Application of Deadly Force

Due to the extreme nature of deadly force, it is important to know when and why to use it. It should always be viewed as a final resort when dealing with another individual.

PC 9.33. – Defense of a Third Person

A person is justified in using force or deadly force against another to protect a third person if:

  • under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
  • the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Note: Do not confuse this statute with the authority a citizen has to arrest. A citizen’s arrest is allowed when the following occur: felony occurs within your view or a breach of the peace.

PC 9.34 – Protection of Life or Health

A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

Note: An example of this would be tackling someone away from the edge of a bridge to prevent them from jumping.

A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other’s life in an emergency.

Note: An example of the application for this would be if you observe a person beating on another person causing serious bodily injury or possibly attempting to kill the other person. At that point you may use force to preserve the life of the other person. If you do not act immediately a person could lose their life or suffer serious bodily injuries.

b.   Protection of Property

PC 9.41 – Protection of One’s Own Property

A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

  • the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
    • the other accomplished the dispossession by using force, threat, or fraud against the actor.

PC 9.42 – Deadly Force to Protect Property

A person is justified in using deadly force against another to protect land or tangible, movable property:

  • if he would be justified in using force against the other under Section 9.41; and
    • when and to the degree he reasonably believes the deadly force is immediately necessary:
      • to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
      • to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
    • he reasonably believes that:
      • the land or property cannot be protected or recovered by any other means; or
      • the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

PC 9.43 – Protection of Third Person’s Property

A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

  • the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
    • the actor reasonably believes that:
      • the third person has requested his protection of the land or property;
      • he has a legal duty to protect the third person’s land or property; or
  • the third person whose land or property he uses force or deadly force to protect is the actor’s spouse, parent, or child, resides with the actor, or is under the actor’s care.

PC 9.44 – Use of Device to Protect Property

The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:

  • the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and
    • use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.

c.             Arrest and Search

CCP Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

PC 9.51 – Arrest and Search

  • A peace officer, or a person acting in a peace officer’s presence and at his direction, is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest, if:
    • the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and
  • before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer’s direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.
  • A person other than a peace officer (or one acting at his direction) is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making a lawful arrest, or to prevent or assist in preventing escape

after lawful arrest if, before using force, the actor manifests his purpose to and the reason for the arrest or reasonably believes his purpose and the reason are already known by or cannot reasonably be made known to the person to be arrested.

A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest, or to prevent escape after arrest, if the use of force would have been justified under Subsection

  • and:
    • the actor reasonably believes the conduct for which arrest is authorized included the use or attempted use of deadly force; or
    • the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed.

A person other than a peace officer acting in a peace officer’s presence and at his direction is justified in using deadly force against another when and to the degree the person reasonably believes the deadly force is immediately necessary to make a lawful arrest, or to prevent escape after a lawful arrest, if the use of force would have been justified under Subsection (b) and:

  • the actor reasonably believes the felony or offense against the public peace for which arrest is authorized included the use or attempted use of deadly force; or
    • the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to another if the arrest is delayed.

There is no duty to retreat before using deadly force justified by Subsection (c) or (d).

Nothing in this section relating to the actor’s manifestation of purpose or identity shall be construed as conflicting with any other law relating to the issuance, service, and execution of an arrest or search warrant either under the laws of this state or the United States.

Deadly force may only be used under the circumstances enumerated in Subsections (c) and (d).

PC 9.52 – Prevention of Escape from Custody

The use of force to prevent the escape of an arrested person from custody is justifiable when:

  • the same force could have been employed to effect the arrest under which the person is in custody, or
    • or a guard at correctional facility or peace officer may use force, including deadly force, to prevent the escape of a person from a correctional facility.

III     Force Not Justified

Force is not justified:

  • In response to verbal provocation alone.
  • To resist arrest or search by a peace officer (unless the officer uses greater force than necessary, and the suspect believes force is necessary to protect himself).
  • If the actor consented to the act (unless consent is withdrawn).
  • If the actor provoked the other’s use or attempted use of unlawful force.
  • If the actor sought communication with the other person concerning the actor’s differences while carrying a weapon.

IV     Determining Liability in Court

Courts may find law enforcement, security officers, or private citizens to be personally liable for using excessive force. Factors that may be considered in determining liability include:

  • Reasonable force may be used to effect an arrest when an officer has probable cause for that arrest. The 4th Amendment limits the level of force that may be used to reasonable force.
  • Reasonableness is based on individual facts and circumstances of the situation.
  • The need for force will be evaluated; the feasibility or availability of alternatives are considerations.
  • Motivation for the force will be evaluated; whether the force was used to maintain or gain control or to harm will be considered.
  • The extent of injury inflicted will be evaluated; minor injuries may be relegated to state court as a tort suit rather than as a Section 1983 cause.
  • The nature of the offense in which control was lost.
  • The actions of third parties who were present.
  • If an emergency situation existed.
  • The behavior of the person against whom force was used.
  • The physical size, strength, and weaponry of the arrestee.
  • The known character of the arrestee.

In general, an action is unreasonable if a reasonable person in similar circumstances would recognize the act as involving a risk of harm and a risk of such magnitude as to outweigh the utility of the act or the manner in which it was done. If a security officer’s conduct in discharging their firearm creates a danger recognizable as such by a reasonable person, they will likely be held accountable to others as the proximate result of his conduct.