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Excessive Use of Force

Kelli M. Smith

Colorado State University Global

CRJ530: Ethics, Justice, and Social Control

Dr. Marisa Bryant

August 14, 2022

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Excessive Use of Force

Excessive use of force has historically been present in the correction culture across the

United States, Denver, CO. is no different. In 2019 the Denver Sheriff’s Department reported

977 use of force incidents. Out of the 977 only 77 were investigated and 4 of those investigations

were deemed a violation and the officers involved were disciplined (City and County of Denver,

2019). Jail and prison officers use force as a deterrence for inmates acting out or further breaking

the law. In recent years, public demands to decrease excessive use of force has been a driving

factor into the implementation of laws against it, including CRS 18-8-803, which demands

officers be charged with a criminal offense like any other civilian if the force used exceeds the

degree of force allowed to police officers (Colorado Legal Defense Group, 2022). This and many

laws like it have forced many correctional care agencies to implement reform. This paper will

provide better understanding of excessive use of force and will analyze the force used through a

deontology and utilitarianism perspective.

Excessive Force

Excessive force is defined as the use of physical force by a law enforcement officer

which is greater than what is permitted by law (Colorado Legal Defense Group, 2022). If

excessive forced is used in pursuit of the officer’s duties, they may be subject to charges in the

same degree as civilians including charges like assault or murder. However, use of force by a law

enforcement officer may become necessary and is legalized under specific situations, in cases

like self-defense or in defense of another person, an officer using force is permittable. Because

there is a very fine, grey, line between necessary force and excessive force many uses of force

reports go unlooked, like the 900 other reports in the Denver Sheriff’s Department.
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The rate of recurrence of use-of-force events that may either be defined as excessive or

justified has been difficult to estimate over the years. It wasn’t until recently the Federal Bureau

of Investigations launched a national use of force database (National Institute of Justice, 2020),

because of this there is limited studies to show the amount of excessive force and how it has truly

impacted reform in correctional facilities.

Less Lethal Weapons

In addition to physical force, correctional care officers typically carry less-lethal

weapons, including conductive energy devices, like a taser or stun gun, impact weapons, like a

baton, and oleoresin capsicum (OC) spray also known as pepper spray. Use of force incidents

with less-lethal weapons increases the likelihood of the inmate sustaining injury (MacDonald et.

al, 2009). When any of these weapons are used in an incident, the officer(s) file a report, that

require an investigation from administration to ensure using these weapons were necessary in

dealing with the incident.

In 2015 Kingsley vs. Hendrickson, the United States Supreme Court ruled the use of a

taser on a detainee for not following verbal commands but was not physically threatening was

“objectively unreasonable” and that the intent of the officer would not be taken into

consideration during investigation or discipline (Legal Information Institute, 2015). Because of

rulings like this and many others, officers have to be able to prove the offender was either a

threat to themselves, a threat to someone else or disrupting the correctional facilities operations

when using force.

Theoretical Perspective in Law Enforcement

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Theoretical concepts have been the driving force behind the need for law enforcement in

the United States. Theory has established law enforcement’s organizational structure and the

operational procedures of the United States officer’s needs. Theory has also assisted in

facilitating change and identify effective methods in crime prevention. To help understand the

use of force incidents in correctional facilities, it is important to identify main theoretical

concepts that led to force in the first place (Wadman, R. 2009). For example, deterrence theory

helped designed and support the policies we see implemented in law enforcement agencies

across the Nation.

There are two theories in ethics both regard decision-making, deontology and

utilitarianism. In a deontological lens, consequences and outcomes may not just justify the means

to achieve the overall goal, whereas in utilitarianism, is the potential outcome determines the

action. These two theoretical lenses do contradict one another, however, each of them has their

own validating advantages and disadvantages in use of force in corrections (Mandal et. al, 2016).

Looking at excessive force through the theoretical lens of deontology and utilitarianism may help

not only the communities to understand why it happens but also assist in correctional care

reform.

Deontology

The word deontology derives from the Greek words for duty (deon). Deontology is an

ethical theory that uses rules to distinguish right from wrong. Deontology was researched and

developed by philosopher Immanuel Krant, who believed ethical actions follow basic universal

morals (Ethics Unwrapped, 2022). Kant believed that ethical actions follow universal moral

laws, the dos and “don’ts” of life. Application of deontology is simple, just following the rules

and do the duty assigned, it doesn’t weight the cost and benefits of the situation which helps
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avoid subjectivity. Although Deontology would keep correction officers in line with their code of

ethics, disregarding possible outcomes may actually impact what is right or wrong and could

potentially end up being career suicide.

An example of this is in 2015, Denver Sheriff’s Deputies were investigated for the death

of Michael Marshall, and inmate who struggled with mental health. Marshall refused to lock

down, threatening staff and himself. Policy dictated for the officers to gain control of the inmate,

get him back to his cell and then call for a mental health professional to assess. Marshall resisted

arrest which increased force used to detain him. Unfortunately, Marshall passed away during the

altercation from cardiac arrest (Mitchell, N. 2018). His history of substance-use and the

increased excursion during the incident increased his likelihood for cardiac complications.

Officers knew his history but responded with disregard to the consequences and focused on the

policy.

Utilitarianism

Unlike deontology, utilitarianism is an ethical theory that determines right from wrong by

focusing on outcomes. It is another form of consequentialism or an action that is judged only by

its consequences. Utilitarianism is focused around an individual’s ethical choice, one that may

produce the most good (Ethics Unwrapped, 2022). Utilitarianism is used in many aspects of life,

including business and even war. In corrections this theoretical lens has facilitated a lot of

change recently. Although correctional officers may have difficulty using utilitarianism in the

moment, as it is very difficult to see the future, administrative staff implements different policies

that will benefit the department, including deputies and inmate’s long term.

The Michael Marshall case, through utilitarianism, allowed for policy change and officer

reform. Stakeholders for the Sherriff’s department worked with the independent monitor and city
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council members to change the culture of corrections within the department, investing more

education surrounding mental health and changing policies surrounding use of force (The Police

Executive Research Forum, 2018). This not only assisted the department in reducing their use of

force but allowed officers more assistance from mental health professionals to ensure they are

following their code of ethics from a deontological lens.

Conclusion

Excessive use of force plays a massive part in correctional facilities reform. Historical

traditions and an adopted culture may make it difficult to change how officers operate their jails

and prisons, theoretical perspectives can help identify the problem and offer solutions. This

paper defined excessive force and how use of force is implemented and also discussed the

importance of looking at use of force through a theoretical lens. This paper discuss how theories

like deontology and utilitarianism helps identify the cause of fore and identify consequences and

change. There is no one theory that can offer a solution to help officers ensure they are staying

within their ethical code, but by identifying the problems through one or many theoretical lenses

and implementing change through others, correctional facilities may see a decrease in not

necessarily use of force, but excessive use of forces.

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References

Colorado Legal Defense Group (2022): CRS 18-8-803 and Duty to Report Use of Force

https://www.shouselaw.com/co/defense/laws/excessive-force/

Denver (2019): DSD Use of Force Metrics Year To Date January 1, 2019 to December 31, 2019

https://www.denvergov.org/files/assets/public/sheriff-department/documents/

sheriff_useofforce_2019summary.pdf

Ethics Unwrapped (2022): Deontology

https://ethicsunwrapped.utexas.edu/glossary/deontology

Ethics Unwrapped (2022): Utilitarianism

https://ethicsunwrapped.utexas.edu/glossary/utilitarianism

Legal Information Institute (2015): Kingsley v. Hendrickson LII note: The U.S. Supreme Court

has now decided Kingsley v. Hendrickson.

https://www.law.cornell.edu/supct/cert/14-6368

National Institute of Justice (2020): Overview of Police Use of Force

https://nij.ojp.gov/topics/articles/overview-police-use-force

Mandal J, Ponnambath DK, Parija SC. Utilitarian and deontological ethics in medicine. Trop

Parasitol. 2016 Jan-Jun;6(1):5-7. doi: 10.4103/2229-5070.175024. PMID: 26998430;

PMCID: PMC4778182.

Mitchell, N. (2018): The Death of Michael Marshall, an Independent Review

https://www.denvergov.org/files/assets/public/independent-monitor/documents/

2018marshallreport_oim.pdf

The Police Executive Research Forum (2018): Spotlight on Sheriffs Reform Efforts in the

Denver Sheriff’s Department

https://www.policeforum.org/assets/DenverSheriffDepartment.pdf
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Wadman, R. C. (2009). Police Theory in America: Old Traditions and New Opportunities.

Springfield: Charles C Thomas Publisher, LTD.