November 3, 2009
By: David K. Jaffe
An officer may use reasonable force to: effect a legal arrest; to overcome resistance; and to maintain and regain control. However, an improper use of force is a tortuous battery.
A peace officer making a valid arrest is legally "privileged" to commit both assaults and batteries, provided that the force threatened and used is "reasonable." The Restatement (Second) of Torts § 132 states: " The use of force against another for the purpose of effecting the arrest or recapture of the other, or of maintaining the actor's custody, is not privileged if the means employed are in excess of those which the actor reasonably believes to be necessary."
Thus, the test is "objective" (i.e. what would a reasonable officer in the same position have done?) as well as "subjective" (i.e. did the officer in fact believe the force to be both necessary and reasonable?).
There are two definitional problems in this situation: what actions constitute and "arrest," and what factors will make a given amount of force "reasonable."
Definition of Arrest
"An arrest is the taking of another into the custody of the actor for the actual or purported purpose of bringing the other before a court, or of otherwise securing the administration of the law."  Often there is a conflict between the subjective perception of the plaintiff and that of the officer-defendant whether an arrest has in fact occurred or was being attempted. Although this issue most frequently arises in the context of a false arrest claim, it is also relevant to assault and battery issues. In fact, the parties may switch positions where assault and battery is concerned, the officer claiming that he was making or attempting an arrest, the plaintiff arguing that there was an unprivileged battery because no arrest was in progress.
The usual response of the courts is to use a standard which essentially disregards the perceptions of both parties, i.e., whether a reasonable person in plaintiff's position would believe that he was being placed into custody and was not free to leave. It is sufficient that the plaintiff submit to an apprehension of force reasonably to be understood from the conduct of the defendant, although no force is used or even expressly threatened.
Reasonable Force During Arrest
A police officer making an otherwise valid arrest is legally privileged to use reasonably necessary force to effect custody. Thus, he is privileged to strike one while attempting to effect an arrest, especially where the arrestee was striking the officer. The justification is not unlimited: Although the arrest may be legal, force is not permitted where one offers no resistance, and resistance may be excused when the police use excessive force. Minimal force to effect custody, by handcuffing for instance, is permitted.
If a warrantless arrest is not permissible in a given situation, any privilege to use force is negated. Analytically, the use of force during an arrest may occur in four situations:
- Force to effect of complete the arrest;
- Force to overcome resistance to the arrest;
- Force to maintain or regain custody; and
Since the United States Supreme Court's decision in Tennessee v. Garner,  the right to use deadly force in effecting an arrest has been severely restricted. Garner supercedes the common-law rules which permitted deadly force to apprehend an escaping felon. These restrictions apply over and above any limitations on the right to use force provided by assault and battery law.
Force used to overcome resistance to arrest is governed by different standards. The arrester, if the arrestee resists, must necessarily do more than meet force with equal force; he must use sufficiently more force to cause the arrestee to yield.
 Restatement (Second) of Torts § 112.
 Tennessee v. Garner, 471 U.S. 1 (1985).