You're Face to Face with a Cop. Here's When They Can Use Force

We’ve been talking about police brutality a lot as a country lately. And it seems like everyone with a Dell and a dial-up connection is now an expert on the legality of the use of force by police officers. Lately, you, your racist uncle, and your friend from high school who still lives with her parents and usually only posts a photo of her baby on Facebook once a year, are all over comment threads giving out advice on how and when police officers are allowed to use force. In an attempt to shorten some of these comment threads, I reached out to an actual legal expert. Unlike your uncle, he has a law degree and everything. 

What's something we can take away? The laws currently on the books cannot solve these problems, and our focus as a society should be on advocating for new laws to reduce the racism in the system and to hold police officers accountable for excessive uses of force. So the bottom line is, join a protest. It isn’t just black lives on the line. This affects all of us. Here's the interview:

Brendan Shiller is one of the partners of the Shiller Preyar Law Offices in Chicago, Illinois. SPLO practices criminal defense (state and federal) as well as federal civil rights cases. The majority of SPLO’s civil rights cases deal with police abuse and excessive force.  SPLO has an excellent win record with civil police abuse cases, most against the Chicago Police Department. Brendan graduated first in his class from John Marshall Law School in Chicago (and he’s white, so even your racist uncle will be inclined to listen), so you can trust his expertise on use of force.

Brendan Shiller

So, a lot of people online seem to be under the impression that police officers always have the right to use force. I see a lot of people saying “Well, of course if you talk back to the police, they are going to shoot you!” That doesn’t seem like it should be true in a democracy. 

So, my first question is, what actually authorizes police officers to use force? And what rights do citizens have regarding excessive force?

The unifying law across all states and municipalities is the Fourth Amendment. The Fourth Amendment says that all searches and seizures must be reasonable. The most obvious context where that comes into play is that you cannot stop or search someone without probable cause. But “reasonable” also has to do with how the seizure is done. Any encounter with law enforcement that’s not a consensual encounter at some point becomes a seizure [if you can’t just walk away].

States and municipalities, even though they may think they can, cannot grant police greater powers that those granted under the Fourth Amendment. They can restrict some of those powers, but they rarely do. So when determining what’s the most police can do, you have to go to the Fourth Amendment. 

Generally speaking, the basic rule is that police can use force that they reasonably perceive is necessary, or that any objective officer would perceive as necessary in that officer’s shoes. Anything more than that becomes unreasonable under the Fourth Amendment, unconstitutional, illegally civilly and criminally under federal laws. Deadly force [can be used when] they reasonably perceive, or an objective officer would, in their shoes reasonably perceive, an imminent threat of danger to themselves or to someone else.

What about when there is no probable cause to arrest you?

Almost every state and municipality, including Illinois, has an additional rule that you can’t resist an unlawful arrest. What they mean by that is, even if there’s no probable cause to arrest you, you can’t resist the arrest. What they don’t mean by that is, if you start getting beat up you can’t resist excessive force. You have the legal right to resist excessive force. But, as a practical matter that is probably fairly meaningless. 

Yeah, because there’s still only one of you. And... you’re probably not going to win that fight.

No, you’re just going to get your ass kicked harder.

So if you’ve done nothing wrong, and there’s no reasonable suspicion that you’ve done anything wrong, you still cannot resist arrest?


In terms of what kind of force is used, are there rules about that? Like in the Garner case there’s been a lot of talk about an illegal chokehold versus a legal chokehold. Are there rules about what police are allowed to do? Or is it like, once it gets into a use of force, anything goes?

In terms of federal law, its just a matter of what’s reasonable. Certain states restrict certain uses of force, but there are no general rules about that, no.

So there’s this colloquialism that you can “indict a ham sandwich,” right? Why is it so hard to indict police officers?

Oh, its not. It’s because the prosecutors don’t want to indict them. Any prosecutor who wants to get an indictment can get an indictment. 

One thing that I see a lot online is people asking “Why are they making this a racial issue?” Like, why don’t we just talk about how police are using too much force in general? What makes the cases we’re talking about now (Mike Brown, Eric Garner, etc.) a racial issue? 

There’s two points here.

One is, the simple fact of the matter is that justice is unequal in this country. You’re more likely to be arrested falsely if you’re black or brown, more likely to be beat up if you’re black or brown. Justice is unequal. That’s a simple fact.

The other, deeper fact -- and the thing that maybe some conservative or moderate white folks don’t think all the way through -- is, in part because justice is a power structure that is unequal, and out of fear that there is going to be a revolt or a rebellion against that power structure, we actually give far more leeway to police officers than you would think that ideology or rhetoric would allow. The laws grant great discretion and great leeway to law enforcement that I don’t think [we] would give if we lived in a homogenous society. So, the impact is that although white people get beat up [by police] less than black people, they probably get beat more than they would if we lived in a[n equal] society. So white people are actually harmed by law enforcement in a white supremacist power structure more than they would be in a non-white supremacist power structure. Because out of fear of giving up [supremacy], they’ve granted way too much leeway and discretion to law enforcement. 

So, getting to your work, how much money does the City of Chicago lose due to these civil excessive force cases?

I think its probably $40-50 million a year is what they’ve been averaging for the past couple of years. But, its FOIA-ble.

[Ed. note: That’s lawyer for “look it up”. I made a Freedom of Information Act request to the City of Chicago. In 2014, The City of Chicago paid out $54.2 million dollars for civil rights complaints.]

So, just enough money to reopen a couple of those schools that [Chicago Mayor] Rahm Emanuel closed. Great. What would you expect to see happen when any of these families (Brown, Garner, Crawford, etc.) bring forth a civil case?

The funny thing is that civil cases against police are just as hard as criminal cases. They’re really hard to win. For the simple fact that you’re going to get some jurors who, no matter what, are never going to want to find a cop wrong. Just like you get grand jurors who don’t want to find a cop wrong. But, theoretically, based on the burden of the law, [civil cases] should be easier to win. 

Based on everything I know about the Brown case, the Garner case, the Crawford case, the Rice case, I think they’re all good civil cases. We would take them in a heartbeat, and we would expect to win. 

[At this point Brendan got a phone call. He made me turn off my tape recorder before he answered it. Proving that he is a good lawyer. Also, I had a tape recorder. Which proves that I am a great interviewer. Also, by tape recorder, I mean iPhone.]

I know that excessive force civil cases fall under 1983. So what is 1983? What protections does the 1983 law offer?

US 1983 is a federal statute, that was passed after Reconstruction, but became, at some point after the Civil Rights movement, a way to enforce, or civilly sue based on constitutional violations. All it basically says is that you have a private cause of action, or a private right to sue if somebody acting under code of law (or, in a law enforcement capacity) violates a constitutional right of yours. And the individual constitutional rights are the Bill of Rights. 

The majority of your business is suing police officers for excessive use of force under 1983. So what would put you out of business? What would have to happen to make excessive use of force rare enough that you couldn’t make a living as a lawyer who focuses on police abuse cases?

One of two things, and neither of them are foreseeable, frankly, in my lifetime or my child’s lifetime, or my grandchild’s lifetime. That is, somehow we once and for all as a country get beyond the color line. And no matter how much incremental progress there has been, its hard to imagine that ever actually fully happening. Or the other thing, is that we become a sophisticated enough society that we actually abolish police departments. And I can’t imagine that happening either. Those are the only two things that would ever put me out of business. 

So… your law firm is safe.

We’re good.

It really does strike me how all of a sudden in the last month, everyone thinks they’re an expert on use of force now. Is there anything that, if you had a platform, you wish you could tell everyone about these types of cases? 

State legislatures and city councils can limit the amount of discretion that police officers have. They can grant greater rights to citizens beyond the Constitution. And that is a real rough road to hoe because police unions are very powerful and have very strong lobbyists, and so are prosecutors. But that is where the energy needs to go, to figur[ing] out how to change state laws that grant so many immunities to police officers. If police actually start getting punished, really punished, and actually became accountable, then that would change the whole system. It wouldn’t put me out of business, but it would change the business. 

The truth is that there are a lot of things which are properly political issues and not legal issues. And most of this stuff really is about the politics. It really is about the law and the legislature. So I’m glad [protesters] are taking it to the streets. Now, they’ve got to figure out how to change some laws.