107oag033 ( 2022 )

Gen. 33] 33
PUBLIC SAFETY
POLICE OFFICERS – USE OF FORCE STATUTE – MEANING OF
THE REQUIREMENT THAT FORCE USED BY OFFICERS MUST
BE “NECESSARY” AND “PROPORTIONAL”
February 25, 2022
Woodrow W. Jones III
Superintendent, Maryland State Police
You have asked for our opinion on the meaning of the phrase
“necessary and proportional” in the new Maryland Use of Force
Statute, which takes effect July 1, 2022, and provides that a police
officer “may not use force against a person unless, under the totality
of the circumstances, the force is necessary and proportional to”
(1) “prevent an imminent threat of physical injury to a person” or
(2) “effectuate a legitimate law enforcement objective.” 2021 Md.
Laws, ch. 60 (to be codified at Md. Code Ann., Pub. Safety (“PS”)
§ 3-524(d)(1)). Once the new law goes into effect, a police officer
will be criminally liable for “intentionally violat[ing]” this standard
if the violation results “in serious physical injury or death to a
person.” Id. (to be codified at PS § 3-524(i)(1) (emphasis added)).
In addition, violations of the standard, even unintentional ones,
may serve as grounds for disciplinary action against officers. See,
e.g., 2021 Md. Laws, ch. 59 (to be codified at PS § 3-212(a)(1)(ii))
(providing that the Maryland Police Training and Standards
Commission “may suspend or revoke the certification of a police
officer” who violates the Maryland Use of Force Statute).1
A standard like this one cannot be “reduced to a formula” and
is “not amenable to a precise definition,” as it necessarily depends
on “the specific circumstances encountered by the officer” on the
scene. 84 Opinions of the Attorney General 105, 105, 114 (1999)
(involving a form domestic violence protective order that used the
phrase “reasonable and necessary force” in authorizing police
officers to use force to return a minor child to a parent).
In our view, however, there are three core principles that can
be gleaned from the requirement that force be “necessary and
1
The statute is silent as to what impact, if any, the new standard might
have on potential civil liability. That question is outside of the scope of
this opinion and is for the courts to decide. But, as we explain below,
the statute makes no mention of civil liability, and we have seen no
indication in the legislative history that the new law was specifically
intended to establish a new civil standard. See Part II.E, infra.
34 [107 Op. Att’y
proportional.” First, the use of force is not “necessary” unless there
is no reasonable alternative to using force that, under the totality of
the circumstances, would safely and effectively achieve the same
legitimate ends. As a practical matter, that first principle will
sometimes require, when circumstances allow, that officers employ
non-force alternatives, such as de-escalation techniques, before
resorting to any use of force. Second, even when the use of some
force is necessary, the degree and amount of force must be
“proportional,” that is, it must correspond to, and be appropriate in
light of, the severity of the threat or resistance confronting the
officer or the objective that the officer aims to achieve. Put another
way, an officer may use no more force than is reasonably required
under the circumstances to prevent an imminent threat of physical
injury to a person or to effectuate another legitimate law
enforcement objective. Third, the proportionality requirement
further prohibits an officer from using force if the harm that is
likely to result from that degree and amount of force is too severe
in relation to the value of the interest that the officer seeks to
protect. For example, even if deadly force is the only feasible way
to prevent the mere destruction of a piece of property, an officer
may not use such force, because the harm likely to result is not
proportional to the officer’s legitimate interest in protecting
property. Instead, an officer may use lethal force only in response
to an apparent imminent threat of death or serious bodily injury to
a person.
This new standard does not, however, require officers to
jeopardize their own safety by pursuing alternatives that are not
reasonable under the totality of the circumstances—circumstances
which are likely to include, among other things, the amount of time
that the officer has to make a decision and the immediacy of the
threat facing the officer. We recognize that police officers are
sometimes called upon to make split-second decisions, and the
standard thus does not require police officers to be omniscient or
to act at the time of the encounter as if they had the benefit of
perfect hindsight. Nor does the standard necessarily require an
officer responding to an attack to use the exact same type, degree,
or amount of force as an attacker; after all, police officers need to
be able to use enough force to overcome the threat that they
confront, at least when using force is necessary to achieve a law
enforcement objective.
But the new standard is materially different from, and is
stricter than, the prevailing standard established by the United
States Supreme Court and typically used in Maryland for
determining whether a police officer’s use of force is justified. For
Gen. 33] 35
example, the new standard requires consideration of other means
an officer could reasonably have employed under the totality of the
circumstances to achieve the same ends safely and effectively, a
factor that is not relevant under the current standard. The new
standard also provides that the degree and amount of force used by
a police officer must be no more than the situation reasonably
requires. Finally, while the current test looks only at the moments
directly preceding the use of force to determine whether the
officer’s conduct was justified, this new standard appears to expand
the relevant window of time to include circumstances earlier in the
interaction leading up to an officer’s use of force, taking into
account such factors as whether the officer unnecessarily escalated
the situation.
I
Background
The Maryland Use of Force Statute is the first legislative
enactment establishing limits on the use of force by Maryland’s
police officers, who, until now, have been subject only to the
standards set forth in case law and the policies of individual law
enforcement agencies.
A. Current Use of Force Standards Set by Case Law
Generally, under current excessive-force jurisprudence, a
police officer in Maryland is not civilly or criminally liable for the
use of force so long as the officer’s actions are “objectively
reasonable” under the circumstances. See, e.g., Estate of Blair ex
rel. Blair v. Austin, 469 Md. 1, 21-22 (2020) (plurality) (explaining
that, in a civil excessive force case, “the plaintiff must establish by
a preponderance of the evidence that the officer exceeded the level
of force an objectively reasonable officer would use under the same
or similar situation”); State v. Pagotto, 361 Md. 528, 538 (2000)
(recognizing, in a case involving criminal charges of involuntary
manslaughter and reckless endangerment, that the “chief question”
was whether the State had shown that the defendant police officer
had “not acted as a reasonable police officer, similarly situated”
(internal quotation marks omitted)). This standard, rooted in the
Fourth Amendment, derives from a pair of cases that the U.S.
Supreme Court decided in the 1980s: Tennessee v. Garner, 471
U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989).
In Garner, the Court held that a police officer cannot use
deadly force to prevent the escape of an apparently unarmed
suspected felon unless such force “is necessary to prevent the
36 [107 Op. Att’y
escape and the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury to the
officer or others.” 471 U.S. at 3. Garner involved an officer who,
responding to a late-night call of a break-in, arrived at a house,
heard a door slam, and spotted someone running across the
backyard toward a 6-feet-high chain link fence. Id. Using a
flashlight, the officer saw the suspect’s face and hands and was
“reasonably sure” that he was unarmed. Id. Nonetheless, when the
suspect ignored the officer’s command to halt and began climbing
over the fence, the officer shot him in the back of the head. Id. at
4. The suspect, a fifteen-year-old boy, later died at a hospital. Id.
& n.2.
The boy’s father sued under 42 U.S.C. § 1983, alleging that
the police officer’s use of deadly force violated several provisions
of the United States Constitution. Garner, 471 U.S. at 5. The
Supreme Court focused on the Fourth Amendment claim,
reasoning that “[w]henever an officer restrains the freedom of a
person to walk away, he has seized that person,” and that
“apprehension by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment.” Id. at 7.
The Court reiterated that “the key principle of the Fourth
Amendment” is “the balancing of competing interests,” id. at 8(quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)): on
the one hand, “the nature and quality of the intrusion on [an]
individual’s Fourth Amendment interests,” and, on the other hand,
“the importance of the governmental interests alleged to justify the
intrusion,” id. (quoting United States v. Place, 462 U.S. 696, 703
(1983)). Thus, reasonableness of a seizure “depends on not only
when a seizure is made, but also how it is carried out.” Id.(emphasis added). “[T]he question [is] whether the totality of the
circumstances justifie[s] a particular sort of . . . seizure.” Id. at 8-
9.
Applying these principles, the Garner Court concluded that
the officer’s use of deadly force was unreasonable and, thus,
unconstitutional. Garner, 471 U.S. at 11, 20-22. The Court
explained:
Where the suspect poses no immediate threat
to the officer and no threat to others, the harm
resulting from failing to apprehend him does
not justify the use of deadly force to do so. It
is no doubt unfortunate when a suspect who is
in sight escapes, but the fact that the police
arrive a little late or are a little slower afoot
Gen. 33] 37
does not always justify killing the suspect. A
police officer may not seize an unarmed,
nondangerous suspect by shooting him
dead. . . . [But] [w]here the officer has
probable cause to believe that the suspect
poses a threat of serious physical harm, either
to the officer or to others, it is not
constitutionally unreasonable to prevent
escape by using deadly force. Thus, if the
suspect threatens the officer with a weapon or
there is probable cause to believe that he has
committed a crime involving the infliction or
threatened infliction of serious physical harm,
deadly force may be used if necessary to
prevent escape, and if, where feasible, some
warning has been given.
Id. at 11-12.
Four years later, in Graham, the Court “ma[d]e explicit” that
“all claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the
Fourth Amendment and its ‘reasonableness’ standard.” 490 U.S.
at 395 (emphasis in original). Noting that “[t]he test . . . is not
capable of precise definition or mechanical application,” the Court
said that the reasonableness of a police officer’s use of force
depends on “the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
whether [the suspect] is actively resisting arrest or attempting to
evade arrest by flight.” Id. at 396 (first alteration in original).
The Court also explained that “[t]he ‘reasonableness’ of a
particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. That approach, the Court said, “embod[ies]
allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 396-97. “As in other Fourth
Amendment contexts, however, the ‘reasonableness’ inquiry in an
excessive force case is an objective one: the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397.
38 [107 Op. Att’y
Graham proved a “seminal decision” for evaluating police
officers’ use of force. Blair, 469 Md. at 43 (Watts, J., concurring).
“Maryland courts have repeatedly relied upon Graham for a
framework to analyze whether challenged law enforcement action
constituted excessive force.” 84 Opinions of the Attorney General
at 115; see also French v. Hines, 182 Md. App. 201, 262 (2008)
(“[T]he Graham standard is applied consistently in Maryland
courts.”). For example, the objective reasonableness test has been
applied to claims that an officer’s use of force violated the
Maryland Constitution,2 constituted an unlawful battery or other
tort,3 or rose to the level of a crime.4
In applying Graham, Maryland courts have said that the
reasonableness of an officer’s use of force depends only on “the
circumstances at the moment or moments directly preceding the
use of . . . force.” Mayor & City Council of Baltimore v. Hart, 167
See, e.g., Blair, 469 Md. at 22-23 (“Whether a police officer has used
2
excessive force in violation of the Maryland Declaration of Rights is
judged under the standard of objective reasonableness established by the
United States Supreme Court to analyze analogous claims made under
the Fourth Amendment to the federal Constitution.” (brackets and
internal quotation marks omitted)); Richardson v. McGriff, 361 Md. 437,
452 (2000) (recognizing that Graham’s objective reasonableness test
applies to a claim of excessive force in violation of Article 26 of the
Maryland Declaration of Rights).
3
See, e.g., Richardson, 361 Md. at 452-53 (recognizing that the Court
of Appeals “ha[s] adopted essentially the same principle as a matter of
State common law” and that Graham’s objective reasonableness test “is
the appropriate one to apply . . . to . . . common law claims of battery and
gross negligence” by police officers).
4
See, e.g., Pagotto, 361 Md. at 549-50, 555 (noting that the Graham
standard of objective reasonableness is “equally apposite” to criminal
charges of involuntary manslaughter and reckless endangerment based
on a police officer’s use of force); Cagle v. State, 235 Md. App. 593,
604-05, 607 (2018) (noting in a case affirming a police officer’s
convictions for first-degree assault and use of a firearm in the
commission of a felony or crime of violence, that when “an officer has
been accused of using excessive force in the course of an arrest, evidence
is relevant as to whether the officer’s actions [were] objectively
reasonable” under the Graham standard); Wilson v. State, 87 Md. App.
512, 519-21 (1991) (noting that an officer who satisfies the objective
reasonableness standard in the use of force “is not liable civilly or
criminally for the assault or battery that may result, including, if
necessary, the use of deadly force”). To be clear, however, even under
current law, the prosecution of crimes may also require the State to prove
more than a mere violation of the Graham standard, such as an intent
element.
Gen. 33] 39
Md. App. 106, 118 (citing Richardson, 361 Md. at 458), aff’d, 395
Md. 394 (2006). The officer’s actions leading up to the use of force
are “irrelevant to the objective reasonableness of his conduct at the
moment he decided to employ . . . force,” which “depends only
upon the officer’s knowledge of circumstances immediately prior
to and at the moment he decided to employ . . . force.” Richardson,
361 Md. at 456-57 (internal quotation omitted); see also id. at 456-
58 (citing cases limiting the scope of inquiry to the moment an
officer used force, and concluding that this “is the only sensible
approach”); cf. Pagotto v. State, 127 Md. App. 271, 356 (1999)
(“Antecedent and allegedly negligent acts that may have
contributed to the creation of a dangerous situation are not pertinent
in evaluating the officer’s state of mind at the critical moment when
the gun, for instance, is discharged.”), aff’d, 361 Md. 528 (2000).
Maryland courts have also made clear that a police officer’s
use of force need only “fall[] within a range of conduct which is
objectively ‘reasonable’ under the Fourth Amendment.”
Richardson, 361 Md. at 455 (quoting Schulz v. Long, 44 F.3d 643,
649 (8th Cir. 1995)). The inquiry “focuses not on what the most
prudent course of action may have been or whether there were other
alternatives available.” Id. (quoting Schulz, 44 F.3d at 649). Such
alternative measures “are simply not relevant to the reasonableness
inquiry.” Id. (quoting Schulz, 44 F.3d at 649); see also Randall v.
Peaco, 175 Md. App. 320, 334 (2007) (“[T]he reasonableness of a
police officer’s use of deadly force is not measured by what other
measures the officer could have employed.”).
The standard that has emerged from the cases, then, limits
police officers in Maryland to the use of “reasonable” force, that is,
force that falls within a range of acceptable actions, as viewed from
the perspective of an objectively reasonable officer at the moment
force is used, without regard to the officer’s actions leading up to
the moment that the officer employs the force.5
5
For clarity, we note that the Graham standard applies to claims of
excessive force by police during an arrest, an investigatory stop, or “any
other ‘seizure’ of a person at liberty.” Michael Avery et al., Police
Misconduct: Law and Litigation § 2:18 (Nov. 2021). Claims of
excessive force against state and local prisoners being detained before
trial are subject to a Fourteenth Amendment due process analysis that
does “not appear to differ appreciably from the Fourth Amendment
standard of Graham.” Id. And claims of excessive force against
convicted prisoners are analyzed under the Eighth Amendment’s cruel
and unusual standard. Id.
40 [107 Op. Att’y
B. Law Enforcement Agencies’ Use of Force Policies
Aside from case law, the standards set forth in the policies of
individual law enforcement agencies have been the only other
source of authority governing a police officer’s use of force in
Maryland. In 2016, the General Assembly enacted legislation
requiring the Maryland Police Training and Standards Commission
“to adopt and recommend a set of best practices and standards for
use of force.” 2016 Md. Laws, ch. 519 (codified at PS § 3-
207(a)(19)). The Commission recommended that Maryland law
enforcement agencies adopt policies stating “that officers may use
force that is objectively reasonable and appears to be necessary
under the circumstances in response to the threat or resistance by a
subject.” Maryland Police Training and Standards Commission,
Best Practices and Standards for the Use of Force by Law Enforcement
Officers, at 1, https://mdle.net/pdf/UOF_Best_Practices.pdf (last
visited Feb. 22, 2022); see also Maryland Police Training Commission,
Model Policies for Law Enforcement in Maryland 6 (Jan. 8, 2007)
(promoting a policy that “officers use the least amount of force that
is reasonably necessary to control an incident, to effect an arrest, or
to protect themselves or others from personal harm or death,” with
“[t]he degree of force used by the officer . . . progressive along a
continuum that spans from verbal commands to deadly force”).
Despite this guidance, however, there is no “unified use of
force matrix for all the agencies in the state of Maryland.” Meeting
of Workgroup to Address Police Reform and Accountability in
Maryland, at 1:08:23 (June 23, 2020) (statement of Charles County
Sheriff Troy Berry); see also Police Executive Research Forum,
Guiding Principles on Use of Force, at 16 (Mar. 2016) [hereinafter
PERF, Guiding Principles] (noting that Graham “allows for
significant variations in police agencies’ individual policies and
practices”); Congressional Research Service, Police Use of Force:
Overview and Considerations for Congress, at 3 (July 10, 2020)
(noting the “wide variation among jurisdictions with respect to the
stringency and specificity” of law enforcement agencies’ use of
force policies). Some department policies have adopted language
nearly identical to the Graham standard.6 Others have deviated
from “the constitutional floor set in Graham,” Hilary Rau et
al., State Regulation of Policing: Post Commissions and Police
Accountability, 11 U.C. Irvine L. Rev. 1349, 1380 (2021), by, for
example, requiring officers to use “the minimum amount of force
See, e.g., Howard County Dep’t of Police, General Order OPS-11:
6
Use of Force, at 3 (2021) (“Members shall only use the physical force
that is objectively reasonable to effect lawful purposes.”).
Gen. 33] 41
necessary” to accomplish a legitimate law enforcement objective,7
or allowing an officer to use force “only when no reasonably
effective alternative exists.”8 Going forward, of course, police
department use of force policies in Maryland will have to comply
with the new “necessary and proportional” standard. And, while
an officer faces criminal liability only for intentionally violating
the new statutory standard (and only if the violation results in death
or serious bodily injury), an officer may still face disciplinary
action by the officer’s employer for unintentional violations.
C. Movement Toward a Statutory Standard in Maryland
In the summer of 2020, in the wake of the killing of George
Floyd by a Minneapolis police officer,9 Maryland lawmakers
announced bipartisan efforts to study and enact sweeping police
reform legislation.10 In the ensuing months, lawmakers heard from
many individuals calling for the adoption of a statewide statutory
standard for police officers’ use of force. Proponents argued that,
in the absence of a statute, officers had “minimal guidance about
how [they] are supposed to engage with suspects.” E.g., Hearing
on H.B. 139 Before the House Judiciary Comm., 2021 Leg., Reg.
Sess. (Feb. 9, 2021) (written testimony of Chris Apple). Critics
had long assailed the Graham standard as failing to “provide
specific guidance.” PERF, Guiding Principles, at 15 (emphasis in
original); see also Rachel A. Harmon, When Is Police Violence
Justified?, 102 Nw. U. L. Rev. 1119, 1131 (2008) (arguing that “the
7
Kent County Sheriff’s Office, Administrative and Operations
Manual 8-1 (2021).
8
Baltimore Police Dep’t, Policy 1115: Use of Force 4 (2019).
9
Floyd, a Black man, died on May 25, 2020, after Derek Chauvin, a White
police officer, handcuffed and pinned Floyd to the ground and pressed his
knee on Floyd’s neck for about nine and a half minutes. E.g., Holly Bailey et
al., Medical Examiner Says Police Restraint, Neck Compression “More Than
Mr. Floyd Could Take,” Wash. Post, April 9, 2021,
https://www.washingtonpost.com/nation/2021/04/09/derek-chauvin-trial-2/.
The killing, captured on cell phone video, spurred demonstrations in cities
across the country, including Baltimore. E.g., McKenna Oxenden, Christina
Tkacik, Justin Fenton, & Lillian Reed, Protests Continue for the 11th Straight
Day in Baltimore Following the Death of George Floyd, Balt. Sun, June 8,
2020, https://www.baltimoresun.com/maryland/baltimore-city/bs-md-ci-
protest-day-11-20200608-kqhb4hdre5drdbekgvrfr5ldnq-story.html.
10
See, e.g., Pamela Wood, After Death of George Floyd, Maryland Lawmakers
Forming Work Group on Police Reform, Accountability, Balt. Sun, May 30, 2020,
https://www.baltimoresun.com/politics/bs-md-pol-police-accountability-group-
20200530-vllpk32dznh4rewovasncz3rda-story.html.
42 [107 Op. Att’y
Graham factors fail to specify how to evaluate whether an officer’s
actions were justified in a particular situation, including whether
they were reasonable given the spectrum of possible responses”);
Gregory Howard Williams, Controlling the Use of Non-Deadly
Force: Policy and Practice, 10 Harv. BlackLetter J. 79, 97 (1993)
(arguing that Graham’s “wide-open, fact-specific inquiry provides
little guidance for law enforcement agencies in how to structure
their conduct regarding the use of non-deadly force”).
In recent years, several other states and police departments
outside Maryland have adopted standards more restrictive of police
officers’ use of force than Graham. California, for instance,
codified that “peace officers [should] use deadly force only when
necessary in defense of human life,” a standard that requires
officers to “use other available resources and techniques if
reasonably safe and feasible.” A.B. 392, 2019-2020 Leg. Sess.
(Cal.) (codified at Cal. Penal Code § 835a(a)(2) (emphasis added)).
Colorado enacted legislation permitting officers to “use physical
force only if nonviolent means would be ineffective in effecting an
arrest, preventing an escape, or preventing an imminent threat of
injury to the . . . officer or another person.” S.B. 217, 2020 Reg.
Leg. Sess. (Colo.) (codified at Colo. Rev. Stat. Ann. § 18-1-
707(1)). And the Camden County Police Department in New
Jersey adopted a use of force policy that “aspires to go beyond
Graham and its minimum requirements” by authorizing officers to
use only force that is “objectively reasonable [and] necessary,” and
only “as a last resort.” Camden County Police Dep’t, Use of Force
2-3 (Aug. 21, 2019).
In Maryland, in the months following George Floyd’s murder,
many advocates urged the General Assembly to enact a statutory
standard that would permit police officers to use deadly force (or,
in some cases, any force) only when “necessary,” a standard they
considered more restrictive than Graham. See, e.g., Meeting of
Workgroup to Address Police Reform and Accountability in
Maryland, at 7:35-7:40, 8:05-8:48 (Aug. 6, 2020) (statement of
Kristina Roth, Senior Advocate, Criminal Justice Program,
Amnesty International USA) (advocating for a “necessary”
standard, considered “more restrictive” than Graham, which would
prohibit a police officer from using deadly force unless necessary
as a last resort to respond to an imminent threat to life after
exhausting reasonable alternative options); Meeting of Workgroup
to Address Police Reform and Accountability in Maryland, at
2:55:20-2:55:40 (Sept. 17, 2020) (statement of Zain Shirazi,
Assistant Public Defender, Charles County) (advocating for a
statute that would allow police to use deadly force only when
Gen. 33] 43
“absolutely necessary, as a last resort”); Hearing Before the Senate
Judicial Proceedings Comm. on Police Accountability and Law
Enforcement Reform, at 1:26:18-1:26:40 (Sept. 22, 2020)
(statement of ACLU attorney David Rocah) (arguing that Graham
“gives officers too much discretion” and that Maryland should
adopt a statute “limit[ing] police use of force to that which is
necessary, meaning, under the totality of circumstances, there was
no reasonable alternative”); Hearing Before the Senate Judicial
Proceedings Comm. on Police Accountability and Law
Enforcement Reform at 1:56:26-1:56:32 (statement of Neill
Franklin, Executive Director, Law Enforcement Action
Partnership) (arguing for “the reasonable standard [to] move to a
place of necessity, a necessity standard, of last resort”).
During the 2021 legislative session, Maryland lawmakers
introduced several bills that proposed a statewide standard
authorizing police officers to use only “necessary” and/or
“proportional” force.11 Ultimately, the General Assembly adopted
language allowing officers to use only force that, “under the totality
of the circumstances,” is “necessary and proportional to”
“effectuate a legitimate law enforcement objective” or “prevent an
imminent threat of physical injury to a person.” 2021 Md. Laws,
ch. 60 (to be codified at PS § 3-524(d)(1)). It appears from the
legislative history that this standard was inspired, at least in part,
by two sources. The first was Maryland’s common law on self-
defense, which (as we will discuss in more detail below) has long
employed the concepts of necessity and proportionality. See
Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., at
1:47:02-1:47:16 (Apr. 7, 2021) (statement of Sen. Sydnor)
(explaining that Maryland’s self-defense law “talks about” the
terms “necessary” and “proportional”). The second was the
Baltimore Police Department’s similar use of force policy, which
11
See S.B. 237, 2021 Leg., Reg. Sess. (First Reader) (requiring police
departments to adopt rules requiring officers to use “only objectively
reasonable, necessary, and proportional force to accomplish the officer’s
lawful duties”); H.B. 707, 2021 Leg., Reg. Sess. (First Reader) (same);
S.B. 626, 2021 Leg., Reg. Sess. (First Reader) (authorizing officers to
use only “necessary force” and requiring them to cease using force when
it is no longer “reasonable and proportional” to accomplish a legitimate
law enforcement objective); H.B. 139, 2021 Leg., Reg. Sess. (First
Reader) (prohibiting an officer from using force “unless the force is
necessary force and proportional” to “prevent an imminent threat of
physical injury to a person” or “effectuate an arrest”); H.B. 670, 2021
Leg., Reg. Sess. (First Reader) (authorizing officers to “only use the
force that is objectively reasonable and appears to be necessary under the
circumstances in response to the threat or resistance by another person”).
44 [107 Op. Att’y
provides in relevant part that “[m]embers shall use only the force
Reasonable, Necessary, and Proportional to respond to the threat or
resistance to effectively and safely resolve an incident.” Baltimore
Police Dep’t, Policy 1115: Use of Force 1 (2019) [hereinafter BPD
Use of Force Policy]; see Senate Floor Proceedings No. 42, 2021
Leg., Reg. Sess., at 5:38:29-5:39:24 (Apr. 7, 2021) (statement of
Sen. Carter) (explaining that the Baltimore Police Department uses
a “necessary” and “proportional” standard and advocating for those
terms to be used in the Use of Force Statute).
II
Analysis
You have asked for our opinion on the meaning of
“necessary” and “proportional” as used in the Maryland Use of
Force Statute, which states:
(d)(1) A police officer[12] may not use force
against a person unless, under the totality of
the circumstances, the force is necessary and
proportional to:
(i) prevent an imminent threat of physical
injury to a person; or
(ii) effectuate a legitimate law enforcement
objective.[13]
(2) A police officer shall cease the use of force
as soon as:
(i) the person on whom the force is used:
1. is under the police officer’s control; or
2. no longer poses an imminent threat of
physical injury or death to the police officer or
to another person; or
(ii) the police officer determines that force
will no longer accomplish a legitimate law
enforcement objective.
“Police officer” means a police officer as defined in PS § 3-201 or
12
a special police officer as defined in PS § 3-301. 2021 Md. Laws, ch. 60
(to be codified at PS § 3-524(b)(3)).
13
For brevity, because preventing an imminent threat of physical
injury is itself a legitimate law enforcement objective, we will often use
only this latter phrase with the understanding that it encompasses the
prevention of an imminent threat of physical injury.
Gen. 33] 45
2021 Md. Laws, ch. 60 (to be codified at PS § 3-524(d)). A police
officer who intentionally violates this standard, causing a person’s
serious physical injury14 or death, is guilty of a misdemeanor and
subject to up to ten years in prison. Id. (to be codified at PS § 3-
524(i)).
Before analyzing the meaning of the phrase “necessary and
proportional,” we address a preliminary matter about the meaning
of “force” under the statute. The statute does not define “force,”
and, as others have observed, “there are many different definitions
of ‘force’ used in law-enforcement law and policy,” some of which
encompass “nonphysical efforts by officers to influence conduct
through commands, warnings, or persuasion.” Principles of the
Law, Policing § 5.01 cmt. a (Am. Law Inst., Tentative Draft No. 1,
2017). We read “force” in this statute, however, to refer primarily
to an officer’s use of physical force, by which we mean attempts to
gain compliance or neutralize a threat by using the officer’s body
or an instrument such as a baton, Taser, or gun. In some cases,
“force” might also include pointing a gun at a person or some
similar use of a weapon. See BPD Use of Force Policy at 5
(defining the “use of force” to include, among other things,
displaying the “arc” of a Taser as a warning and pointing a firearm
at a person). But, under our reading, “force” does not encompass
an officer’s mere presence or verbal commands. We infer this
meaning from the legislative history, which indicates that
lawmakers enacted the statute to reduce incidents of officers
inflicting physical harm on civilians,15 and the fact that criminal
liability arises under the statute only when an officer’s intentional
violation of the use of force standard results in “serious physical
injury or death to a person,” 2021 Md. Laws, ch. 60 (to be codified
at PS § 3-524(i)), which seems unlikely to occur based simply on
verbal commands. Our reading is also consistent with how “force”
is understood in the self-defense doctrine and the Baltimore Police
14
“Serious physical injury” means “physical injury that: (1) creates a
substantial risk of death; or (2) causes permanent or protracted serious:
(i) disfigurement; (ii) loss of the function of any bodily member or organ;
or (iii) impairment of the function of any bodily member or organ.” Md.
Code Ann., Crim. Law (“CL”) § 3-201(d); see also 2021 Md. Laws, ch.
60 (to be codified at PS § 3-524(b)(4)) (providing that “serious physical
injury” has the meaning stated in CL § 3-201).
15
See, e.g., Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess.,
at 3:03:30-3:04:41 (Apr. 7, 2021) (statement of Sen. Sydnor) (citing
examples of police officers physically injuring civilians in arguing for
the new statutory standard). We discuss the legislative history more fully
below. See Part II.B, infra.
46 [107 Op. Att’y
Department’s use of force policy, both of which (as we discuss
further below) influenced the drafters of the Use of Force Statute.
Having addressed that preliminary matter, we turn to the
question before us: the meaning of “necessary” and “proportional.”
“To ascertain the intent of the General Assembly, we begin with
the normal, plain meaning of the statute.” State v. Bey, 452 Md.
255, 265-66 (2017) (quoting State v. Johnson, 415 Md. 413, 421
(2010)). “We, however, do not read statutory language in a
vacuum,” id., but also consider the words “necessary and
proportional” in the broader context of the Use of Force Statute as
a whole, what lawmakers said about the meaning of those words,
how the concepts have been applied in other contexts, and how
other jurisdictions have incorporated these ideas into use of force
standards. We will consider those various factors in turn.
A. The Language of the Statute
We start with the “ordinary and popular understanding” of the
words necessary and proportional, e.g., Lockett v. Blue Ocean
Bristol, LLC, 446 Md. 397, 421 (2016), then consider those
meanings in the broader context of “the statute as a whole,”
Blondell v. Baltimore City Police Dep’t, 341 Md. 680, 691 (1996).
1. Dictionary Definitions
Dictionary definitions, although not conclusive, provide “an
essential starting point” for evaluating the ordinary meaning of
undefined statutory terms. Berry v. Queen, 469 Md. 674, 688-89
(2020). Here, “necessary” is ordinarily defined to mean
“absolutely needed,” “required,” “logically unavoidable,”16 or
“essential or needed in order to do something, provide something,
or make something happen.”17 “Proportional,” for its part,
ordinarily means “corresponding in size, degree, or intensity,”18 or
“correct or appropriate in size, amount, or degree when considered
in relation to something else.”19 These definitions suggest that a
particular use of force is “necessary and proportional” under the
16
Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/necessary (last visited Feb. 22, 2022).
17
MacMillan Dictionary, https://www.macmillandictionary.com/us/
dictionary/american/necessary_1 (last visited Feb. 22, 2022).
18
Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/proportional (last visited Feb. 22, 2022).
19
MacMillan Dictionary, https://www.macmillandictionary.com/us/
dictionary/american/proportional (last visited Feb. 22, 2022).
Gen. 33] 47
Maryland Use of Force Statute if an officer cannot accomplish a
legitimate law enforcement objective without using force, and the
amount, degree, and intensity of the force that the officer uses
corresponds to, and is appropriate in relation to, the objective that
the officer aims to accomplish.
We recognize, however, that “dictionary definitions do not
provide dispositive resolutions of the meaning of statutory terms”
but instead are merely a “starting point.” Montgomery County v.
Deibler, 423 Md. 54, 67 (2011) (quoting Marriott Emps. Fed.
Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447 (1997)).
That warning is particularly important here, as courts have not
always hewed strictly to dictionary definitions when discussing the
concept of necessity. See, e.g., Arizona v. Washington, 434 U.S.
497, 506 (1978) (observing, in the context of the “manifest
necessity” that a prosecutor must show to justify a mistrial over a
defendant’s objection, that “the key word ‘necessity’ cannot be
interpreted literally,” because, “contrary to the teaching of
Webster,” “there are degrees of necessity”). The Court of Special
Appeals, for example, has observed that “the meaning of
‘necessary’ varies with the context in which it is used.” Baltimore
County Licensed Beverage Ass’n v. Kwon, 135 Md. App. 178, 193
(2000) (noting that the word “may import absolute physical
necessity or inevitability, or it may import that which is only
convenient, useful, appropriate, suitable, proper, or conducive to
the end sought”) (quoting Black’s Law Dictionary 714 (abridged
6th ed. 1991)); see also Friends Sch. v. Supervisor of Assessments,
314 Md. 194, 197, 201 & n.3 (1988) (noting that, in a statute
providing tax exemptions for property that is “necessary” for the
educational purposes of a qualifying educational institution,
“‘[n]ecessary’ means reasonably necessary”).20 We thus look
beyond the dictionary definitions of “necessary” and
“proportional” to consider those terms in the context of “the statute
as a whole,” Blondell, 341 Md. at 691, and, “to the extent possible,”
reconciling and harmonizing those provisions, Dixon v.
Department of Pub. Safety & Corr. Servs., 175 Md. App. 384, 409
(2007).
20
See also 85 Opinions of the Attorney General at 114-15, 117-18
(interpreting the phrase “reasonable and necessary force” to essentially
mean the same thing as “objectively reasonable” force under the
Supreme Court’s Graham standard). But if one thing is clear from the
history of the “necessary and proportional” standard (which we discuss
below), it is that the General Assembly intended for the new standard to
be stricter than the Graham standard. We thus do not view our earlier
opinion as particularly illuminating as to the meaning of “necessary” in
the new Use of Force Statute.
48 [107 Op. Att’y
2. The Statutory Context
In addition to limiting officers to the use of “necessary and
proportional” force, the Use of Force Statute provides that, “when
time, circumstances, and safety allow,” an officer shall “take steps
to gain compliance and de-escalate conflict without using physical
force.” 2021 Md. Laws, ch. 60 (to be codified at PS § 3-524(e)(1)).
A police officer also must cease the use of force as soon as a suspect
is under the officer’s control or no longer poses an imminent threat
of physical injury or death, or as soon as the officer determines that
“force will no longer accomplish a legitimate law enforcement
objective.” Id. (to be codified at PS § 3-524(d)).
These surrounding provisions, in our view, help inform what
the General Assembly meant by “necessary and proportional.” See,
e.g., Maguire v. State, 192 Md. 615, 623 (1949) (noting that “it is
the most natural and general exposition of a statute to construe one
part of the statute by another part of the same statute”). The
provisions suggest that lawmakers wanted police officers to
continually assess a situation and—when “time, circumstances, and
safety allow,” 2021 Md. Laws, ch. 60 (to be codified at PS § 3-
524(e)(1))—to employ alternatives to the use of physical force that
would achieve the same legitimate law enforcement objectives.
Indeed, the statute specifically requires that police officers undergo
training about “reasonable alternatives to decrease physical injury”
and “options that are less likely to cause death or serious physical
injury.” Id. (to be codified at PS § 3-524(h)).
These other provisions of the Use of Force Statute imply that
the phrase “necessary and proportional” has a meaning consistent
with the words’ ordinary dictionary definitions. That is, the statute
permits officers to use force only when they have no other
reasonable and effective means of accomplishing a legitimate law
enforcement objective. Moreover, the statute’s emphasis on de-
escalation suggests that the intensity of an officer’s use of force
must correspond to the threat or the resistance that the officer
confronts; that is, if the officer can reasonably and safely
accomplish the objective in question with a lesser degree or amount
of force, the officer should do so.
We note, too, that the surrounding context makes clear that
the statute governs a police officer’s behavior throughout an entire
encounter with another person, not simply the moment the officer
uses force. For example, if “time, circumstances, and safety”
allow, the officer must “take steps to gain compliance and de-
escalate conflict without using physical force.” 2021 Md. Laws,
Gen. 33] 49
ch. 60 (to be codified at PS § 3-524(e)(1)). This suggests a
legislative intent to depart from the Graham standard, which, as
noted above, focuses only on “the circumstances at the moment or
moments directly proceeding the use of . . . force,” Hart, 167 Md.
App. at 118, without considering the officer’s actions leading up to
that moment, Richardson, 361 Md. at 456-57. Because we must
construe “necessary and proportional” in the context of the statute
as a whole, see, e.g., Spangler v. McQuitty, 449 Md. 33, 49 (2016),
these neighboring provisions indicate that the propriety of a
particular use of force will depend not only on the circumstances at
the moment the officer uses force but, rather, the circumstances
surrounding the entire encounter between the officer and the person
against whom the officer uses force.
B. Legislative History
This understanding of “necessary and proportional” also finds
support in the legislative history, which indicates that the
Legislature relied, at least in part, on two existing sources when
crafting the “necessary and proportional” standard: the self-
defense doctrine and the Baltimore Police Department’s use of
force policy. Both of those sources incorporate the same basic
understandings of necessity and proportionality. That is, force is
necessary and proportional if the person using force cannot
reasonably accomplish a lawful objective without the use of force,
and the degree and amount of the force is not excessive in relation
to the situation requiring the use of force. Other evidence from the
legislative history, including statements by sponsors of Senate Bill
71 (which became the Use of Force Statute) and related pieces of
legislation, also leads to the same conclusion.
1. Self-Defense Doctrine
During the final hours of debate before the Senate approved
Senate Bill 71, Senator Sydnor (the lead sponsor of the bill and the
floor leader) responded to a question about whether the terms
“necessary and proportional” were defined in current law by
explaining that, “if you were to look at Maryland’s laws of self-
defense, you could find a body of law that kind of talks about
‘necessary’ and ‘proportional’ there.” Senate Floor Proceedings
No. 42, 2021 Leg., Reg. Sess., at 1:47:02-1:47:16 (Apr. 7, 2021).
That statement by the bill’s sponsor suggests that the meaning of
the terms in the self-defense context informed the meaning of
“necessary and proportional” in the statute. Although such
statements are “not conclusive on legislative intent,” they are
“generally accorded some weight by the courts in determining the
50 [107 Op. Att’y
meaning of a statute.” 87 Opinions of the Attorney General 106,
113 n.6 (2002). “That is because floor leaders and bill sponsors
tend to know the details of their bills better than other members, so
other members will often rely on their explanations when deciding
how to vote.” 103 Opinions of the Attorney General 18, 39 (2018)
(citing Jack Schwartz and Amanda Stakem Conn, The Courts of
Appeals at the Cocktail Party: The Use and Misuse of Legislative
History, 54 Md. L. Rev. 432, 446 (1995)). We thus look to the self-
defense doctrine for further guidance on the meaning of “necessary
and proportional” in the Use of Force Statute.
Before we do so, we wish to make clear at the outset that one
cannot simply import the self-defense doctrine wholesale into the
context of police use of force. “[T]here are,” after all, “some limits
to the analogy” between self-defense and police use of force,
because, unlike civilians, “officers cannot ‘call the police’ to avoid
using force; they often are not permitted to retreat; they are trained
and prepared to use force; and they routinely and legitimately
initiate contact that subsequently requires force to be used.”
Harmon, supra, at 1182-83. Indeed, the Use of Force Statute
explicitly permits police officers to use force not just in defense of
themselves or others but also to accomplish legitimate law-
enforcement objectives more broadly.
We note, however, that the concepts of necessity and
proportionality are relevant not just as part of the self-defense
doctrine but as components of various other justification defenses.
2 Paul H. Robinson et al., Criminal Law Defenses § 121 (July
2021) [hereinafter Crim L. Def.].21 These include the defense of
others and the defense of property, id. §§ 133, 134, as well as the
public authority justification defense, which courts in other states
have sometimes interpreted to justify police use of force only when
such force is “necessary” to carry out a legitimate law enforcement
objective and “proportional[]” to “the gravity of the harm or evil
threatened and the importance of the interest furthered,” id. § 142.
Although there is no legislative history suggesting that members of
the General Assembly were aware of that specific defense, it
reinforces the fact that the concepts of necessity and proportionality
are not foreign to the evaluation of the use of force by police
officers, even if the concepts do not apply exactly the same way in
every context. With these caveats in mind, we turn to the self-
defense doctrine.
“Justification defenses describe conduct that, if not justified, would
21
constitute an offense but, if justified, does not constitute criminal or
wrongful conduct.” 2 Crim. L. Def. § 121.
Gen. 33] 51
The Maryland courts commonly describe the self-defense
doctrine as a four-part test, which requires a defendant to establish
that:
(1) the defendant actually believed that he or
she was in immediate or imminent danger of
bodily harm;
(2) the defendant’s belief was reasonable;
(3) the defendant must not have been the
aggressor or provoked the conflict22; and
(4) the defendant used no more force than was
reasonably necessary to defend himself or
herself in light of the threatened or actual
harm.
Jones v. State, 357 Md. 408, 422 (2000).
These four elements incorporate the concepts of necessity and
proportionality. First, the self-defense doctrine embodies the
concept of necessity by requiring the defendant to show that the use
of force was essential because the defendant reasonably feared
“imminent peril,” Morris v. State, 4 Md. App. 328, 331 (1968),
which was not of the defendant’s own making, Jones, 357 Md. at
422. Indeed, the Maryland courts frequently emphasize that “the
right to defend one’s self is based on necessity.” Bruce v. State,
218 Md. 87, 96 (1958).
The self-defense doctrine—in particular, the fourth element
of the test—also requires the defendant to demonstrate that they
“used no more force than the exigency required,” Sydnor v. State,
365 Md. 205, 216 (2001) (quoting State v. Martin, 329 Md. 351,
357 (1993)), which embodies the idea of proportionality by
requiring a defendant to show that the degree and amount of the
force that the defendant used was appropriate in relation to the
severity of the threat of physical harm that required responsive
force. See, e.g., Sydnor v. State, 133 Md. App. 173, 191-92 (2000),
aff’d, 365 Md. 205 (2001) (noting that “the basis for lethal force
dissipates” when a person no longer “is in danger of imminent
death or serious bodily harm,” and that the person’s “response must
be measured and directly proportional to any perceived threat that
22
As already noted, officers often lawfully initiate contact that results
in the use of force, a fact that we bear in mind as we consider what the
self-defense doctrine tells us about the meaning of “necessary and
proportional” in the context of police use of force.
52 [107 Op. Att’y
does not rise to the level of being life threatening” (emphasis
added)). Although courts often refer to this last element as another
aspect of necessity,23 the concept involves the ordinary
understanding of proportionality. See, e.g., Sydnor, 133 Md. App.
at 185 (affirming a self-defense jury instruction that “any response
to force or threat of force by [a] robber must be directly
proportional” (emphasis added)). And because the General
Assembly used both “necessary” and “proportional” in the Use of
Force Statute, it does not matter for our purposes whether one
considers the degree and amount of force a matter of necessity, one
of proportionality, or a combination of the two. What matters is
how courts have applied these principles to self-defense, given that
those principles apparently informed the Legislature’s understanding
of “necessary and proportional” in the Use of Force Statute.
One way that courts measure the necessity of force in self-
defense is to consider whether the defendant was the aggressor or
provoked the conflict requiring the defendant’s use of force. Jones,
357 Md. at 422. Of course, as already noted, the very nature of law
enforcement means that police officers must sometimes initiate
encounters that ultimately result in the use of force. We thus doubt
that drafters of the Use of Force Statute intended to categorize as
unnecessary any force that an officer uses simply because, for
example, the officer initiated contact with a citizen. Nonetheless,
in light of the broader statutory duty to “de-escalate conflict” and
avoid using force when circumstances allow, 2021 Md. Laws, ch.
60 (to be codified at PS § 3-524(e)(1)), we think it likely the
General Assembly intended the necessity calculus to at least take
into account, as part of the totality of the circumstances, an officer’s
actions throughout the encounter, including whether, under those
circumstances, the officer unnecessarily escalated the encounter.
In other words, as in the self-defense context, determining whether
a particular use of force is justified depends not just on the totality
of the circumstances at the moment force is used but the circumstances
throughout the entire encounter leading up to that moment.24
23
See, e.g., Belton v. State, __ Md. App. __, No. 0720, Sept. Term, 2020,
2021 WL 6124241, at *15 (Dec. 28, 2021) (noting that a defendant must
reasonably believe “that no more force is being employed in self-defense
than is necessary to counteract the danger” (emphasis added)); Finnegan v.
State, 33 Md. App. 251, 256 (1976) (“Where one blow may have been
adequate to repel [the] victim, repeated blows to the head with a hammer
went way beyond what was necessary for defense.” (emphasis added)).
24
That is not to say that an officer who unnecessarily escalates an
encounter and then later uses force will always violate the new statutory
standard. Rather, the officer’s actions leading up to the use of force are
Gen. 33] 53
As for measuring, within that broader window of time,
whether force is necessary, the self-defense doctrine requires
consideration of reasonable alternatives for achieving the same
end. See, e.g., Bruce, 218 Md. at 97 (observing that “an attempted
battery may be met by resisting force with force provided no
unnecessary violence was used and proper measures were taken to
avoid the conflict and escape from shedding blood” (emphasis
added)). This includes weighing whether the defendant could
reasonably have achieved the same goal without using force at all.
For example, one principle of self-defense “is ‘the duty of the
defendant to retreat or avoid danger’” before using deadly force “if
such means were within his power and consistent with his safety.”
Burch v. State, 346 Md. 253, 283 (1997) (quoting Bruce, 218 Md.
at 97) (internal quotation marks omitted); accord Redcross v. State,
121 Md. App. 320, 328 (1998) (noting that “the accused must make
all reasonable efforts to withdraw from the encounter before
resorting to the use of deadly force”). To be clear, we do not mean
to suggest that the duty to retreat applies to police officers when
attempting to perform their duties. The point is merely that the self-
defense doctrine encompasses consideration of reasonable
alternatives to determine what is “necessary” under the totality of
the circumstances. The availability of reasonable alternatives
depends, however, on what the defendant could reasonably have
discerned under the circumstances; the self-defense doctrine does
not require the defendant to be omniscient and is not judged based
on perfect hindsight. See Restatement (Second) of Torts § 63 cmt.
j (Am. Law Inst. 1965) (explaining, under the similar doctrine of
self-defense in tort law, that the defendant’s conduct is judged
based on what the defendant knew or reasonably should have
known at the time of the event, not based on what one might
recognize to have been sufficient “after the event and when the
emergency is past”).
The consideration of reasonable alternatives is also relevant
to whether a defendant was justified in using a particular degree
just one part of the totality of the circumstances. Under the self-defense
doctrine, for example, “[a] nondeadly aggressor (i.e., one who begins an
encounter, using only his fists or some nondeadly weapon) who is met
with deadly force in defense may justifiably defend himself against the
deadly attack.” Watkins v. State, 79 Md. App. 136, 139 (1989) (quoting
Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 459 (2d ed.
1986)). Thus, even if an officer makes a mistake that unnecessarily
escalates an encounter, the propriety of the officer’s subsequent use of
force will depend on the totality of the circumstances. Moreover, as
noted above, criminal liability will require proof that the officer
intentionally violated the standard.
54 [107 Op. Att’y
and amount of force in self-defense. Thus, “if the threatened harm
could otherwise be avoided through non-lethal measures,” “[a]
killing in self-defense is not authorized.” 1 Jens David Ohlin,
Wharton’s Criminal Law § 14:3 (16th ed.); see also Finnegan, 33
Md. App. at 255-56 (noting that, “[w]here one blow may have been
adequate to repel” an attacker, “repeated blows to the head with a
hammer went way beyond what was necessary for defense”).
Indeed, as the Court of Special Appeals recently explained in a case
involving the use of deadly force:
In the doctrine of self-defense, the core fourth
component of the paradigm is that the
defendant shall not have used more force than
was necessary to protect himself from
imminent death or grievous bodily harm.
Such protection is the only purpose of the law
of self-defense. This fourth component of that
paradigm recognizes that there may be other
ways of achieving that life-saving purpose
short of killing the would-be killer. It
absolutely requires that the defendant
consider those other options and find them to
be unavailable before resorting to the extreme
option of killing in self-defense. This is what
is meant by the command that he exert no
more force than is necessary. This does not
mean simply two bullets instead of five. It is
not simply a quantitative measure. It also
means, qualitatively, avoiding bullets
altogether if another and more peaceful option
is available . . . .
Belton, 2021 WL 6124241, at *18.
As to proportionality in the self-defense context, then, the
defendant must “use[] no more force than the exigency require[s].”
Sydnor, 365 Md. at 216. That means that a defendant may not use
a particular kind or degree of force “if he knows or should know
that the apprehended harm can be prevented by the application of
a force less in kind or degree.” Restatement (Second) of Torts § 70
cmt. c (Am. Law Inst. 1965). But it does not mean that a defendant
is “expected to measure accurately the exact amount of force
necessary” to repel an attack. Id. (emphasis added); see also
Restatement (Third) of Torts: Intentional Torts to Persons § 22 cmt.
e (Am. Law Inst., Tentative Draft No. 6, 2021) (noting that, given
the limited time for decision-making, “it is unrealistic to expect an
Gen. 33] 55
actor to finely calibrate the force he or she uses in self-defense”).
Rather, the defendant must use “no more force than was
reasonably necessary,” Jones, 357 Md. at 422 (emphasis added);
accord Baltimore Transit Co. v. Faulkner, 179 Md. 598, 601
(1941) (noting that “[o]ne who seeks to justify an assault on the
ground that he acted in self-defense must show that he used no
more force than the exigency reasonably demanded”).
Proportionality also entails an additional calculation,
however—one that weighs the threat confronting an individual
against the harm that may result from that individual’s use of force.
Thus, even when a certain degree and amount of force may be
“necessary to protect or further the interest at stake,” the use of
force will not be justified if the harm likely to be caused by that
force (based on what is reasonably known at the time) is “too severe
in relation to the value of the interest.” See 1 Crim. L. Def. § 24
(emphasis omitted). In other words, while the principles of
necessity and proportionality require that “the least coercive means
to achieve a given legitimate end be used,” proportionality also
“tests whether those means are worth it—whether the end is
important enough to justify the cost of achieving it.” Harmon,
supra, at 1178; see also 2 Crim. L. Def. § 131. As one
commentator has explained:
This [proportionality] requirement ensures
that the harm caused by a defender’s response
is reasonable in relation to the importance of
the societal interest at stake, even if a greater
response would be necessary to protect that
interest. . . . [Even] [i]f the only way to stop
a fleeing purse thief is to kill him, the use of
force is not justified.
Harmon, supra, at 1178; see also 2 Crim. L. Def. § 131 (making a
similar point).25
Although Maryland’s four-factor test for self-defense does
not expressly mention this additional component of proportionality,
25
This aspect of proportionality is not unfamiliar to police use of
force; indeed, the Supreme Court in Garner applied this principle in
concluding that an officer was not justified in fatally shooting a fleeing
suspected thief. See Garner, 471 U.S. at 11; see also, e.g., Brandon
Garrett & Seth Stoughton, A Tactical Fourth Amendment, 103 Va. L.
Rev. 211, 216 (2017) (recognizing that the Garner Court “ruled that law
enforcement could only use force proportionate to the threat faced by
officers or the public”).
56 [107 Op. Att’y
Maryland courts have implicitly recognized the principle by, for
example, authorizing the use of deadly force to defend oneself or
others but not to defend property. See, e.g., Sydnor, 365 Md. at
218-19 (noting that a robbery victim may use deadly force only
when “necessary to avoid imminent danger of death or serious
bodily harm” and not “in defense of property”). Similarly,
Maryland courts have said that the amount of responsive force must
be “reasonably related to the threatened harm which” the person
“seeks to avoid,” Shuck v. State, 29 Md. App. 33, 37-38 (1975)
(citation omitted), a rule that encompasses this second aspect of
proportionality by, among other things, prohibiting deadly force
from being used to repel an attack unless the person being attacked
reasonably believes that the attack will cause death or serious
bodily injury. See, e.g., Sydnor, 365 Md. at 218-19; see also
Johnson v. State, 223 Md. App. 128, 149-50 (2015) (concluding
that, by hitting someone who unintentionally spit on her, the
defendant used “unreasonable and excessive” force and failed to
satisfy the fourth factor of the self-defense test); 2 Crim. L. Def.
§ 131 (explaining that, even when the use of deadly force would be
the only way under the circumstances for someone to stop a minor
battery that would not result in death or serious bodily injury, the
proportionality requirement forbids deadly force from being used).
We thus infer from the way that the concepts of necessity and
proportionality apply in self-defense cases, and building on our
reading of dictionary definitions and the broader statutory context,
that the propriety of a particular use of force depends in part on the
availability of reasonable alternatives. Only when there is no
reasonable way other than the use of force to safely accomplish a
legitimate law enforcement objective may an officer use force, and
even then, the officer may use no greater degree or amount of force
than the situation reasonably demands. Finally, an officer may not
use force if the harm that will likely result is too severe in relation
to the value of the interest that the officer seeks to protect through
the use of force.
2. The Baltimore Police Department’s Use of Force
Policy
This understanding of “necessary and proportional” force is
also consistent with the way those concepts apply in the Baltimore
Police Department’s use of force policy, which requires officers to
use “only the force Reasonable, Necessary, and Proportional to
respond to the threat or resistance to effectively and safely resolve
an incident,” BPD Use of Force Policy at 1, and which inspired, at
least in part, the State’s new “necessary and proportional” standard.
Gen. 33] 57
Before and during the 2021 legislative session, Maryland
lawmakers heard from advocates and legislative staff about various
use of force standards that police departments nationally and
legislatures in other states have adopted. See, e.g., Meeting of
Workgroup to Address Police Reform and Accountability in
Maryland, at 1:56:46-1:57:16 (July 16, 2020) (statement of Samuel
Sinyangwe, Policy Analyst and Data Scientist, Human Rights Data
Analysis Group) (referencing police use of force policies in the 100
largest cities in the country); Voting Session on S.B. 626 Before the
Senate Judicial Proceedings Comm., 2021 Leg., Reg. Sess., at
0:56:00-0:56:16 (Feb. 24, 2021) (statement of Sen. Waldstreicher)
(referring to a 50-state survey prepared by the National Conference
of State Legislatures).
One particular policy—that of the Baltimore Police
Department (“BPD”)—appears to have influenced drafters of the
“necessary and proportional” language in the Maryland Use of
Force Statute. In the months leading up to the 2021 legislative
session, during meetings of a bipartisan workgroup of House
members studying police reform proposals, Delegate Curt
Anderson repeatedly suggested that the BPD policy serve as a
“boilerplate for a statewide use of force policy.” See, e.g., Meeting
of Workgroup to Address Police Reform and Accountability in
Maryland, at 1:27:40-1:28:58 (June 23, 2020) (statement of Del.
Anderson); Meeting of Workgroup to Address Police Reform and
Accountability in Maryland, at 10:27-11:42 (Oct. 1, 2020)
(statement of Del. Anderson) (advocating for a statutory standard
based on the BPD policy).
Another member of the workgroup, Delegate Debra Davis,
introduced House Bill 139, which, like BPD’s policy, would have
required force to be necessary and proportional, and used language
substantially similar to that which was ultimately adopted in the
Maryland Use of Force Statute:
A law enforcement officer may not use force
against a person unless the force is necessary
force and proportional to:
(i) prevent an imminent threat of physical
injury to a person; or
(ii) effectuate an arrest of a person who the
officer has probable cause to believe has
committed a criminal offense, taking into
consideration the seriousness of the
underlying offense.
58 [107 Op. Att’y
H.B. 139, 2021 Leg., Reg. Sess. (First Reader). In testifying in
support of the bill, Delegate Davis highlighted BPD’s policy,
saying the department “should be commended for setting such a
high standard.” Hearing on H.B. 139 Before the House Judiciary
Comm., 2021 Leg., Reg. Sess., at 1 (Feb. 5, 2021) (written
testimony of Del. Davis).
The gist of House Bill 139’s “necessary and proportional”
standard was transferred to House Bill 670,26 and eventually, to
Senate Bill 71, which became the Maryland Use of Force Statute.27
Senator Jill P. Carter, a sponsor of Senate Bill 71 (and another bill
that was cross-filed with House Bill 139), emphasized that the same
terms, “necessary” and “proportional,” appear in BPD’s use of
force policy. Senate Floor Proceedings No. 42, 2021 Leg., Reg.
Sess., at 5:38:29-5:39:24 (Apr. 7, 2021) (statement of Sen. Carter).
We thus look to that policy for guidance on what “necessary” and
“proportional” mean in the Maryland Use of Force Statute.
As an initial matter, BPD’s use of force policy defines force
as “necessary” “only when no reasonably effective alternative
exists.” BPD Use of Force Policy at 4. That definition is consistent
26
House leaders decided early in the session that House Bill 670, an
omnibus bill that the Speaker introduced at the workgroup’s request,
would serve as their vehicle for police reform. See H.B. 670, 2021 Leg.,
Reg. Sess. (First Reader); Work Session of the House Judiciary Comm.,
Public Safety Subcomm., at 2:19-2:55 (Feb. 17, 2021) (statement of Del.
Atterbeary). As introduced, House Bill 670 would have allowed a police
officer to “only use the force that is objectively reasonable and appears
to be necessary under the circumstances in response to the threat or
resistance by another person.” H.B. 670, 2021 Leg., Reg. Sess. (First
Reader). The House amended the bill to incorporate House Bill 139’s
“necessary” and “proportional” standard, changing only the word “law
enforcement officer” to “police officer.” See House Floor Proceedings
No. 20-B, 2021 Leg., Reg. Sess., at 28:11-30:17 (Mar. 9, 2021)
(statement of Del. Clippinger); Amend. No. 992612/1, H.B. 670, 2021
Leg., Reg. Sess., at 62 (House Judiciary Comm.).
27
Amend. No. 668370/1, H.B. 670, 2021 Leg., Reg. Sess., at 1, 7
(Senate Judicial Proceedings Comm.) (removing the use of force
provisions from House Bill 670); Senate Floor Proceedings No. 37, 2021
Leg., Reg. Sess., at 51:03-51:07 (Mar. 31, 2021) (adopting the
committee’s amendments to House Bill 670); 2:30 p.m. Voting Session
on S.B. 71 Before the House Judiciary Comm., at 42:00-43:44 (Apr. 1,
2021) (statement of Del. Clippinger) (noting that Senate Bill 71, as
amended, includes substantially the same use of force standard that the
House passed in House Bill 670). Although the language underwent
further amendments, both “necessary” and “proportional” remained in
the final legislation.
Gen. 33] 59
with the ordinary meaning of the term and the way that necessity
has long been understood in the self-defense context, i.e., that
necessity depends on whether there are reasonable alternatives to
using force that will effectively accomplish the same ends. Indeed,
the BPD policy expressly provides that, “unless it is not possible to
do so,” officers “shall . . . avoid the [u]se of [f]orce by using” non-
force alternatives like “[d]e-[e]scalation [t]echniques,” including
“verbal persuasion and warnings, slowing down the pace of an
incident, waiting out persons, using barriers, creating distance . . .
and requesting additional resources.” Id. at 6.
The BPD policy also incorporates the concept of
proportionality. Under BPD’s policy, force is “proportional” if it
“is rationally related to the level of resistance or aggression
confronting the” police officer. Id. at 4. The policy further requires
force to be “[r]easonable” and then defines what is “[r]easonable”
by reference to the amount of force used in a way that also evokes
proportionality: “A[n] [officer] uses Reasonable Force when the
[officer] uses no more force than required to perform a lawful
purpose.” Id.28 Thus, for example, an officer may use deadly force
under BPD’s policy in response to an apparent imminent threat of
death or serious physical injury, id. at 8, but only as “the last resort”
after an officer has “exhausted de-escalation . . . and [l]ess-[l]ethal
[f]orce options” or determined that those options are not safe
“based on the [t]otality of [c]ircumstances.” Id. at 7-8. The policy,
in line with the second aspect of proportionality, also prohibits the
use of deadly force merely to protect property and authorizes
deadly force against a fleeing suspect only if the escape of the
suspect would present an imminent threat of serious physical injury
or death to a person. Id. at 8.
3. Other Legislative History
We draw further support for our interpretation from the
statements of individual lawmakers and the language in other use
of force bills that the General Assembly considered during the 2021
legislative session. See, e.g., State v. Phillips, 457 Md. 481, 488
(2018) (noting that the “views expressed by individual members of
28
Although Maryland’s Use of Force Statute does not use the term
“reasonable,” we do not think that makes a difference in how to
understand the concepts of necessity or proportionality. In our view, the
General Assembly likely avoided using the word “reasonable” to avoid
confusion with the Supreme Court’s less strict “reasonable officer”
standard under Graham, and the Legislature likely thought that
“reasonable” as defined in BPD’s policy was already included within the
ordinary meaning of what is “necessary and proportional.”
60 [107 Op. Att’y
the legislative . . . body as part of the debate may [sometimes] be
considered” as evidence of legislative intent); Witte v. Azarian, 369
Md. 518, 525-26 (2002) (recognizing that “the legislative history,
including the derivation of the statute,” may reveal “the true
legislative intent”). As noted above, we accord particular weight
to the statements of bill sponsors and floor leaders as compared to
other members of the Legislature. E.g., 103 Opinions of the
Attorney General at 39.
Senator Sydnor, the lead sponsor of the bill that became the
Use of Force Statute, described it as a “compilation bill” that
incorporated ideas from other legislation, including Senator
Carter’s “initial bill that had the initial use of force standard.”
Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., at
5:45:49-5:46:12 (Apr. 7, 2021) (statement of Sen. Sydnor).
Senator Carter’s bill (Senate Bill 626) would have allowed an
officer to use only “necessary force” and would have required the
officer to cease the use of force if it was “no longer reasonable and
proportional to accomplish[] a legitimate law enforcement
objective.” S.B. 626, 2021 Leg., Reg. Sess. (First Reader). In
testimony in support of her bill, Senator Carter argued that an
officer should be able to “use physical force only after persuasion,
advice and warning has been exhausted,” and then, “only the
minimum degree [of force] necessary.” Hearing on S.B. 626 Before
the Senate Judicial Proceedings Comm., 2021 Leg., Reg. Sess., at
4:20:27-40:20:40 (Feb. 4, 2021) (statement of Sen. Carter).
Although she characterized this as a standard of “absolute
necessity,” Hearing on S.B. 626 Before the Senate Judicial
Proceedings Comm., 2021 Leg., Reg. Sess. (Feb. 4, 2021) (written
testimony of Sen. Carter, at 1), her bill would have required only
that an officer exhaust “reasonable alternative[s]” before using
force. S.B. 626, 2021 Leg., Reg. Sess. (First Reader) (emphasis
added). Most importantly for our purposes, the bill defined
“necessary force” to mean “force such that, under the totality of the
circumstances, there is no reasonable alternative to the use of the
degree or level of force,” and defined “proportional” to mean “not
excessive in relation to a direct and legitimate law enforcement
objective.” Id.Similarly, House Bill 139, which we discussed above, was
cross-filed with Senate Bill 626, and defined “necessary force” by
reference to whether there would be “reasonable alternative[s]” to
a police officer’s use of force under the circumstances. See H.B
139, 2021 Leg., Reg. Sess. (First Reader). The bill also used the
same definition of “proportional” as did Senate Bill 626: “not
Gen. 33] 61
excessive in relation to a direct and legitimate law enforcement
objective.” Id.While neither Senate Bill 626 nor House Bill 139 became
law, we find their definitions of “necessary” and “proportional”
29
helpful in understanding what lawmakers intended when they
eventually used the same terms in the Maryland Use of Force
Statute. Senator Sydnor indicated that the statutory language owed
much to the “initial standard” in Senate Bill 626, which was cross-
filed with House Bill 139. Although the General Assembly did not
incorporate either bill’s express definitions in the final legislation,
the relevant committees were aware of those definitions, and there
is nothing in the legislative record suggesting that lawmakers
intended a drastically different meaning of those words. Perhaps
the Legislature decided that no express definitions of the terms
were needed, given the terms’ ordinary meanings and the way the
terms had already been fleshed out in other contexts, such as in the
self-defense doctrine and the BPD’s use of force policy.
Lawmakers’ statements throughout the legislative session
also reinforce our understanding of the phrase “necessary and
proportional” in the Use of Force Statute. Several lawmakers
indicated that the standard they sought to adopt was more
restrictive than the Graham standard, which, as noted above,
requires only that an officer’s use of force “fall[] within a range of
conduct which is objectively ‘reasonable’ under the Fourth
Amendment’” and does not consider “whether there [a]re other
alternatives available.” Richardson, 361 Md. at 455 (quoting Schulz,
44 F.3d at 649). In adopting a “necessary” standard, lawmakers said
that they aimed to “raise[] the standard substantially,”30 by allowing
29
“[T]he failure of a single bill in the General Assembly may be due
to many reasons.” Moore v. State, 388 Md. 623, 641 (2005). Although
it may sometimes be evidence of legislative intent, id., here, as already
noted, see supra note 26, House Bill 139 likely failed to proceed simply
because House leaders designated other bills, including House Bill 670,
as the vehicles for police reform legislation. As for Senate Bill 626,
senators amended the legislation to prohibit a police officer from
intentionally using “excessive force,” which was defined as “force that
an objectively reasonable law enforcement officer would conclude
exceeds what is necessary to gain compliance, control a situation, or
protect a law enforcement officer or others from harm, under the totality
of the circumstances.” S.B. 626, 2021 Leg., Reg. Sess. (Third Reader).
The amended bill passed the Senate but was never adopted by the House.
30
Police Reform Work Session, Senate Judicial Proceedings Comm.,
2021 Leg., Reg. Sess., at 58:06-58:17 (Mar. 25, 2021) (statement of Sen.
62 [107 Op. Att’y
officers to use force only “as a last resort.”31 For example, as
explained by the legislator who served as the chair of the
workgroup that had met to discuss police reform before the 2021
session: “What we are saying here is that officers should not jump
immediately to the top of the use of force continuum when trying
to apprehend a suspect.” House Floor Proceedings No. 21-A, 2021
Leg., Reg. Sess., at 2:25:02-2:25:27 (Mar. 10, 2021) (statement of
Del. Atterbeary). It thus appears from the legislative history that
lawmakers understood force to be “necessary” when an officer has
no reasonable non-force alternative to accomplish a legitimate law
enforcement objective safely and effectively.
By also requiring force to be “proportional,” lawmakers
further expressed an intent to ensure that a police officer would use
no greater degree or amount of force than a situation requires. In
the words of Senator Carter,
it may be necessary to use force, but it may
not be necessary to use a gun where there’s
. . . an unarmed person, or it probably could
be handled with something less than a shot.
So, when I say “proportional,” I’m concerned
because, you know, it could be – force could
be absolutely warranted, justified, necessary.
But I’m concerned about the leeway, the great
latitude [that] might leave for – there’s a world
of difference in levels of force.
Voting Session on S.B. 626 Before the Senate Judicial Proceedings
Comm., 2021 Leg., Reg. Sess., at 58:22-59:17 (Feb. 24, 2021)
(statement of Sen. Carter).
Similarly, Delegate Debra Davis (the sponsor of H.B. 139)
said that “proportional force” is “the amount of force that is
necessary to defuse the situation.” Work Session of the House
Judiciary Comm., Public Safety Subcomm., at 1:04:10-1:04:28
(Mar. 2, 2021) (statement of Del. Davis). She explained that, in
her view, once an officer “decide[s] that it’s necessary” to use
Waldstreicher, a sponsor of Senate Bill 71) (referring, in a discussion of
House Bill 670, to the “necessary” standard initially adopted by the
Senate).
31
Hearing Before the Senate Judicial Proceedings Comm., at 44:30-
46:25 (Sept. 22, 2020) (statement of Sen. Carter, another sponsor of
Senate Bill 71) (advocating for a “necessary” standard in hearings before
the start of the 2021 legislative session).
Gen. 33] 63
force, the officer “can’t shoot nobody with a cell phone in their
hand. That’s not proportional.” Id. at 1:06:14-1:06-20. As she put
it:
Establish what your law enforcement
objective is, and then you decide . . . what’s
the minimal amount of force that you need to
obtain that . . . legitimate law enforcement
objective.
Id. at 1:06:48-1:07:10.
C. Use of Force Policies and Best Practices from Around the
Country
Finally, we consider the broader context of policing and how
others have used the terms “necessary” and “proportional” in
policies and standards governing police officers’ use of force. See,
e.g., Government Emps. Ins. Co. v. Insurance Comm’r, 332 Md.
124, 131-32 (1993) (recognizing that statutory text must be
construed “in light of the context in which the statute appears,” and
noting that “[c]ontext may include related statutes, pertinent
legislative history and other material that fairly bears on the
fundamental issue of legislative purpose” (internal quotation
omitted)).
The concepts of necessity and proportionality have long been
a part of the national conversation about police use of force. In
2014, as part of a consent decree with the United States Department
of Justice, the Seattle Police Department enacted a new use of force
policy that requires officers to “use only the force necessary to
perform their duties” and such force that is “proportional to the
threat or resistance of the subject under the circumstances.” Seattle
Police Dep’t, Use of Force Policy, at 1 (Jan. 1, 2014); see Order
Approving Consensus Use of Force Policies, United States v. City
of Seattle, No. C12-1282JLR (W.D. Wash. Dec. 17, 2013), ECF
No. 115. In 2016, the Police Executive Research Forum issued its
Guiding Principles on Use of Force, which sanction officers to
“use force that is necessary to mitigate a threat to the safety of
themselves or others” but ask officers to assess “whether a response
is proportional to the threat being faced.” PERF, Guiding
Principles, at 33, 38. Since then, several law enforcement agencies
have authorized officers to use only necessary and proportional
force, and other entities like the American Law Institute and the
Policing Project at the New York University School of Law have
64 [107 Op. Att’y
published guidance with similar language.32 And in March 2021,
as Maryland lawmakers debated a new use of force statute, the
United States House of Representatives passed the George Floyd
Justice in Policing Act of 2021 (“George Floyd Act”), which, if
enacted, would prohibit a federal law enforcement officer from
using non-lethal force except when “necessary and proportional in
order to effectuate an arrest” and would define “necessary” to mean
“that there was no reasonable alternative to the use of force.” H.R.
1280, 117th Cong. § 364(b)(2).33
These various authorities define necessity and proportionality
consistent with our reading of the Maryland Use of Force Statute.
That is, as to necessity, the use of force is necessary only if the
officer has no other reasonable means under the circumstances to
prevent imminent physical harm or accomplish another legitimate
law enforcement objective. For example, the Seattle Police
Department defines “necessary” to mean “that no reasonably
effective alternative to the use of force appeared to exist.” Seattle
Police Dep’t, Manual § 8.050 (Apr. 15, 2021) (adopting the
statutory definition of “necessary” that applies to criminal defenses
generally under Washington law and which further defines
“necessary” to mean that “the amount of force used was reasonable
to effect the lawful purpose intended,” Wash. Rev. Code
§ 9A.16.010) [hereinafter Seattle Manual]. Similarly, California
law directs police officers, “[i]n determining whether deadly force
is necessary,” to “evaluate each situation in light of the particular
circumstances” and to “use other available resources and
techniques if reasonably safe and feasible.” Cal. Penal Code
§ 835a(a)(2); see also New Jersey Policy, supra, at ii (providing
that “[f]orce shall only be used as a last resort when necessary to
See Chicago Police Dep’t, General Order G03-02: Use of Force 1
32
(2017) [hereinafter Chicago Policy]; Berkeley Police Dep’t, Policy 300:
Use of Force 1 (2021); Conn. Police Officer Standards & Training
Council, Use of Force Policy 1, 5 (2020) [hereinafter Connecticut
Policy]; N.J. Office of the Att’y Gen., Use of Force Policy ii, 6 (2020)
[hereinafter New Jersey Policy]; Principles of the Law, Policing §§ 5.01,
5.02, 5.04 (Am. Law Inst., Tentative Draft No. 1, 2017); N.Y. Univ. Sch.
of Law, Policing Project, An Act Regulating the Use of Force by Law
Enforcement Officers 3, 17 (Jan. 27, 2022).
33
The federal bill also has a separate limitation on the use of deadly
force. H.R. 1280, 117th Cong. § 364(b)(3) (2021). It appears that at
least some members of the General Assembly were aware of the George
Floyd Act. See Voting Session on S.B. 626 Before the Senate Judicial
Proceedings Comm., 2021 Leg., Reg. Sess., at 1:12:48-1:13:26 (Feb. 24,
2021) (statement of Sen. Carter) (referring to the use of force standard in
the George Floyd Act).
Gen. 33] 65
accomplish lawful objectives that cannot reasonably be achieved
through verbal commands, critical decision making, tactical
deployment or de-escalation techniques”). As the drafters of the
American Law Institute’s principles of policing have observed,
“[f]orce cannot be considered necessary if a reasonable and
reasonably efficient alternative means [other than using force]
exists for achieving the same law-enforcement ends.” Principles
of the Law, Policing § 5.02 cmt. a (Am. Law Inst., Tentative Draft
No. 1, 2017).
Similarly, as to proportionality, the authorities consistently
describe the requirement as a metric for determining, in cases when
force is necessary, what degree and amount of force is appropriate
in light of the law enforcement objective that the officer aims to
accomplish. For example, the Police Executive Research Forum
explains that “[p]roportionality requires officers to consider if they
are using only the level of force necessary to mitigate the threat,
and whether there is another, less injurious option available that
will safely and effectively achieve the same objective.” PERF,
Guiding Principles, at 21; see also Chicago Policy, supra, at 2
(“The greater the threat and the more likely that the threat will
result in death or serious physical injury, the greater the level of
force that may be necessary to overcome it. When or if the subject
offers less resistance, however, the member will decrease the
amount or type of force accordingly.”).
In reducing these ideas to a definition, authorities variously
describe “proportional” force as “that . . . reasonably necessary to
overcome the level or resistance, aggression, or threat an officer
confronts,”34 “an appropriate level of force” in light of the “totality
of circumstances,”35 or the “minimum amount of force” required to
carry out a legitimate law enforcement objective.36 Although the
exact wording of those definitions differ, they stand for the same
basic proposition: the degree and amount of force must correspond
to, and be appropriate in light of, the threat or resistance facing the
officer or the objective that the officer is attempting to accomplish.
The authorities also make clear, however, that “the term
proportional force is not intended to mean a type and intensity of
34
Connecticut Policy, supra, at 2.
35
Seattle Manual, supra; accord San Francisco Police Dep’t, General
Order: Use of Force 2 (2016).
36
New Jersey Policy, supra, at v; Indianapolis Metro. Police Dep’t,
General Order 1.30: Use of Force—Principles 2 (2020).
66 [107 Op. Att’y
force that is exactly equal to the type and intensity of force being
used by the subject” of the officer’s responsive force.37
Finally, a number of authorities incorporate the second aspect
of proportionality, which weighs the harm likely to result from an
officer’s use of force against the value of the interest that the officer
seeks to protect. According to the American Law Institute, for
example, proportionality “requires that the risk of harm faced by a
person correspond in degree to the seriousness of the public interest
that is being served by the use of force.” Principles of the Law,
Policing § 5.04 cmt. a (Am. Law Inst., Tentative Draft No. 1, 2017).
It thus appears that use of force policies and best practices from
around the country have applied the concepts of necessity and
proportionality consistent with our reading of the Maryland Use of
Force Statute.
D. How to Determine Whether Force Is “Necessary and
Proportional” Under the Use of Force Statute
Considering all this evidence—the dictionary definitions of
“necessary” and “proportional”; the broader statutory context; the
legislative history; and how necessity and proportionality apply in
the self-defense doctrine, the BPD’s use of force policy, and
standards from around the country—we conclude that “necessary
and proportional” force involves three core principles. First, the
use of force is not “necessary” unless there is no reasonable
alternative to using force that, under the circumstances, would
safely and effectively achieve the same legitimate ends. Second,
even when the use of some force is necessary, the degree and
amount of force must correspond to, and be appropriate in light of,
the objective that the officer aims to achieve. Third, the
proportionality requirement further prohibits an officer from using
force if the harm likely to result is too severe in relation to the value
of the interest that the officer seeks to protect.
But what does this mean in practice? As an initial matter, we
reiterate that there is criminal liability for a violation of the standard
only if the violation is intentional and leads to death or serious
bodily harm. 2021 Md. Laws, ch. 60 (to be codified at PS § 3-
524(i)). We also reiterate that a standard like this cannot be
37
New Jersey Policy, supra, at v; see also Chicago Policy, supra, at
2 (recognizing that force “proportional to the threat, actions, and level of
resistance offered by a subject” “may include using greater force or a
different type of force than that used by the subject”); accord Seattle
Manual, supra (“Proportional force does not require officers to use the
same type or amount of force as the subject.”).
Gen. 33] 67
“reduced to a formula” and is “not amenable to a precise
definition,” as it necessarily depends on “the specific
circumstances encountered by the officer” on the scene. Cf. 84
Opinions of the Attorney General at 105, 114. Inevitably, the
courts will have to flesh out details of the standard when
considering specific cases. We can, however, provide some
guidance.
First, as to necessity, the requirement means that, as a
practical matter, an officer will sometimes—when circumstances
allow—have to employ reasonable non-force alternatives before
resorting to any use of physical force. Such reasonable alternatives
to the use of force might include, for example, de-escalation
techniques such as “talking to a person using a tone of voice and
language that is not aggressive or confrontational,” “creating space
or placing barriers between the [officer] and the person,” or
“tactical[ly] repositioning and requesting additional resources.”
BPD Use of Force Policy at 3. In some cases, this might even, in
effect, require an officer to prolong an encounter to attempt various
non-force options. See New Jersey Policy, supra, at 3 (recognizing
that de-escalation techniques may “create the time needed to allow
the situation to resolve itself”).
Naturally, however, the reasonableness of such non-force
alternatives will depend on the totality of circumstances of a
particular situation based on what was known or reasonably should
have been known at the time. If an alternative to the use of force
is not feasible or safe, or if it will not accomplish the officer’s
legitimate law enforcement objective, the alternative is not
reasonable, and the officer need not attempt it before using force.38
Similarly, an officer might not always have sufficient time to attempt
or even to consider non-force alternatives. See Restatement (Third)
of Torts: Intentional Torts to Persons § 22 cmt. f (Am. Law Inst.,
Tentative Draft No. 6, 2021) (recognizing, in the tort context, that
an apparent threat of force may be “sufficiently sudden and
inescapable that the defendant is justified in responding with
defensive force without pausing to carefully consider other
options”). And because the law does not require omniscience, an
officer is not expected to pursue an alternative of which the officer
is reasonably not aware. Cf. Redcross, 121 Md. App. at 328
38
The statute requires training on “enforcement options that are less
likely to cause death or serious physical injury, including scenario-based
training, de-escalation tactics and techniques, and reasonable
alternatives to decrease physical injury.” 2021 Md. Laws, ch. 60 (to be
codified at PS § 3-524(h)). That training will help make these types of
determinations easier for officers.
68 [107 Op. Att’y
(recognizing that, under the self-defense doctrine, a person need
not use a means of escape that is unknown to the person). On the
other hand, if an officer has reasonable alternatives to the use of
force but, instead of pursuing them, needlessly escalates a situation,
the officer’s subsequent use of force might not be “necessary,”
depending on the totality of the circumstances. See, e.g., BPD Use
of Force Policy at 7 (providing that officers “shall not use tactics
that unnecessarily escalate an encounter or create a need for force”
(emphasis omitted)).
Second, as for determining what particular degree and amount
of force may be justified, that too will depend on the totality of the
circumstances. Proportionality does not, as some members of the
Legislature apparently feared,39 limit an officer to using the exact
same type and amount of force that an attacker uses. See footnote
37, supra. Rather, the first component of proportionality means
that an officer must use no more force than is reasonably required
to protect a person from physical injury or to accomplish another
legitimate objective. Thus, for example, deadly force may be used
only “when the exigency demands it, to resist the imminent danger
of death or serious bodily harm,” Sydnor, 365 Md. at 220 n.4.
Although that rule generally “precludes ‘the use of a deadly
weapon against an unarmed assailant,’” Lambert v. State, 70 Md.
App. 83, 93 (1987) (quoting LaFave & Scott, supra, at 456-57), it
would allow an officer to respond to a threat that is deadly (even a
threat coming from a suspect’s fists, if it qualifies as deadly under
the unique circumstances of the situation) with deadly force (which
could include the use of a deadly weapon).40 Similarly, with
39
See Voting Session on S.B. 626 Before the Senate Judicial
Proceedings Comm., 2021 Leg., Reg. Sess., at 55:06-56:00 (Feb. 24,
2021) (statement of Sen. Waldstreicher) (suggesting that “a five-foot
woman” officer “getting beat down by a six-five, 300-pound man” would
not be using proportional force if she shot the man, even if she
‘believe[d] reasonably and objectively that her life [was] in danger,”
because he would be “using his fists” and she would be using a gun);
Senate Floor Proceedings No. 42, 2021 Leg., Reg. Sess., at 2:40:48-
2:41:08 (Apr. 7, 2021) (statement of Sen. Cassilly) (suggesting that
proportionality would require an officer to respond only with fists, and
engage “in the old wrestling match,” in response to “a big guy who can
beat the ever-loving snot out” of the officer, “coming at” the officer).
40
See id. at 93 (noting that it “is not inevitably the case” that a
defendant may not use a deadly weapon against an unarmed assailant
because “account must be taken of the respective sizes and sex of the
assailant and defendant, of the presence of multiple assailants, . . . of the
especially violent nature of the unarmed attack” and whether an
assailant’s “[p]ast violent conduct” is “known by the defendant”).
Gen. 33] 69
respect to non-lethal force, an officer may not use more force than
is reasonably required under the circumstances. Cf. Faulkner, 179
Md. at 601 (noting that the self-defense doctrine requires proof that
the actor “used no more force than the exigency reasonably
demanded”).
This does not mean that an officer must “precisely calibrate
the [exact] amount of force that will solve a problem,” Harmon,
supra, at 1174, particularly in a high-pressure situation when a
split-second decision must be made. After all, what is “necessary
and proportional” depends on the “totality of the circumstances,”
2021 Md. Laws, ch. 60 (to be codified at PS § 3-524(d)(1)), which
may include “the exigency in which the actor is placed . . . , and the
necessity for a rapid decision,” Restatement (Second) of Torts § 70,
cmt. c (Am. Law Inst. 1965) (discussing the character and extent
of force permissible in self-defense). Thus, although it will
sometimes be necessary for an officer to employ non-force
alternatives before resorting to the use of force, we do not read the
Use of Force Statute to require officers to always try each less-
intensive option to see if it will work, or to always think through
every conceivable alternative on a mental checklist before resorting
to force that is appropriate under the totality of the circumstances.
Likewise, an officer does not violate the standard by using an
appropriate degree or kind of force but applying slightly more of
that kind of force than might have been strictly required to
accomplish the officer’s objective in hindsight. See Restatement
(Second) of Torts § 70 cmt. c; see also Restatement (Third) of
Torts: Intentional Torts to Persons § 22 cmt. e (Am. Law Inst.,
Tentative Draft No. 6, 2021) (recognizing that, under the tort self-
defense doctrine, an “actor is not subject to liability simply because
he or she shoved the aggressor with slightly greater force than the
aggressor was employing or threatening”).
Third, the second component of proportionality means that an
officer might have to delay or even abandon a law-enforcement
objective if the only way to accomplish the objective is through
using force that, under the totality of the circumstances, would
likely result in harm that far exceeds the value of the interest that
the officer seeks to protect through the use of force. As one set of
best practices explains:
There are some incidents that are minor in
nature, but for whatever reason, the mere
presence of police officers may escalate the
situation. Under the concept of proportionality,
officers would recognize that even though
70 [107 Op. Att’y
they might be legally justified in using force
as the situation escalates, given the minor
nature of the underlying event, a more
appropriate and proportional response would
be to step back and work toward de-
escalation.
PERF, Guiding Principles, at 39; see also Principles of the Law,
Policing § 5.04 cmt. a (Tentative Draft No. 1, 2017) (“This
requirement of proportionality means that even when force is the
minimum necessary force to achieve a law-enforcement end, its use
may be impermissible if the harm it would cause is disproportionate
to the end that officers seek to achieve.”).
At the end of the day, the propriety of any particular use of
force will depend on the totality of the circumstances, but self-
defense cases and various police departments’ use of force policies
offer insight into what factors might be relevant. In an encounter
with a criminal suspect, for example, whether a particular use of
force is “necessary and proportional” will likely depend on factors
such as the nature and seriousness of the alleged offense; the size,
strength, condition, and mental state of the suspect; whether the
suspect is actively resisting arrest; the suspect’s violent history (if
known); whether the suspect appears to have access to a weapon;
whether the suspect appears to be under the influence of drugs or
alcohol that may impact the suspect’s mobility or tolerance for
pain; whether there is a hostile crowd present at the scene; and the
potential for officers or bystanders to be injured by the suspect’s or
responding officers’ use of force. See, e.g., BPD Use of Force
Policy at 4-5; Connecticut Policy, supra, at 5-6; New Jersey Policy,
supra, at 6; PERF, Guiding Principles, at 39; accord Lambert, 70
Md. App. at 93-96 (outlining some of the similar factors that courts
often consider in the self-defense context). Ultimately, these
factors (and any other relevant factors), will have to be applied on
a case-by-case analysis under the totality of the circumstances.
What is more, in deciding whether force is necessary and
proportional under the statute, an officer will also need to
continually assess the circumstances and adapt the response
accordingly. For example, if an officer originally subject to
“imminent death or serious bodily harm” no longer confronts that
danger, “the basis for lethal force dissipates,” and the officer’s
“response must be measured and directly proportional to any
perceived threat that does not rise to the level of being life
threatening.” Sydnor, 133 Md. App. at 191-92. Indeed, the Use of
Force Statute itself reiterates that principle by requiring a police
Gen. 33] 71
officer to “cease the use of force as soon as . . . the person on whom
the force is used” is “under the police officer’s control” or “no
longer poses an imminent threat of physical injury or death to the
police officer or to another person,” or as soon as “the police officer
determines that force will no longer accomplish a legitimate law
enforcement objective.” 2021 Md. Laws, ch. 60 (to be codified at
PS § 3-524(d)(2)).
E. How the “Necessary and Proportional” Standard Differs from
the Graham Standard
Finally, we consider how the standard in the new Maryland
Use of Force Statute compares to the Graham test. Although the
Graham standard also refers to “the amount of force that is
necessary in a particular situation,” Graham, 490 U.S. at 397(emphasis added),41 the Legislature plainly intended to enact a
standard more restrictive of police officers’ use of force than
Graham.
While we have not attempted to predict every way in which
the courts might ultimately find that the “necessary and
proportional” standard differs from the Graham test, perhaps the
most important difference is that the Maryland statute incorporates
a meaning of “necessary” that takes into account reasonable
alternatives. That is, force is necessary under the statute only when
an officer has no reasonable means of safely and effectively
accomplishing a legitimate law enforcement objective other than
using force. As already noted, the Graham standard does not make
this conception of necessity “central or mandatory,” Harmon,
supra, at 1172, as “the reasonableness of a police officer’s use of
. . . force” under that standard “is not measured by what other
measures the officer could have employed,” Randall, 175 Md. App.
at 334.
Relatedly, the Graham standard does not require an officer to
use a lesser degree, or level, of force even if doing so would be
feasible under the circumstances and would accomplish the same
objective. See, e.g., Richardson, 361 Md. at 455 (quoting Schulz,
44 F.3d at 649) (noting that an officer’s use of force need only
“fall[] within a range of conduct which is objectively ‘reasonable’
under the Fourth Amendment’” and that the officer need not
41
See also Koushall v. State, __ Md. __, No. 13, Sept. Term, 2021,
2022 WL 324824, at *1, *10 (Feb. 3, 2022) (summarizing the Graham
standard as allowing officers to use the force “reasonably necessary
under the circumstances”).
72 [107 Op. Att’y
employ the least intrusive or most prudent option); Int’l Ass’n of
Chiefs of Police, Use of Force Position Paper, at 3 (“It is important
to note that in Graham, the U.S. Supreme Court recognized that
law enforcement officers do not need to use the minimum amount
of force in any given situation; rather, the officer must use a force
option that is reasonable based upon the totality of circumstances
known to the officer at the time the force was used.”). The
Maryland Use of Force Statute, however, expressly requires that an
officer’s use of force be proportional. Although this does not mean
that an officer can be expected to know the exact amount of force
that will be necessary, it requires an officer to employ the least
force that is reasonably necessary under the circumstances—which
is stricter than merely requiring the officer to choose an option that
falls within a broad range of reasonable conduct.
The new statutory standard, as compared to the Graham
standard, also seems to expand the window of time one considers
in assessing the propriety of an officer’s use of force. As noted
before, the Graham test considers the reasonableness of an
officer’s use of force by looking only to “the circumstances at the
moment or moments directly preceding the use of . . . force.” Hart,
167 Md. App. at 118. The Maryland Use of Force Statute, by
contrast, requires an officer to use proportional force, to cease
using force as soon as it is no longer necessary to accomplish a
legitimate law enforcement objective, and to “take steps to gain
compliance and de-escalate conflict without using physical force,”
“when time, circumstances, and safety allow.” 2021 Md. Laws, ch.
60 (to be codified at PS § 3-524(d) & (e)(1)). Assessing an officer’s
compliance with these requirements necessarily entails an
examination of the circumstances earlier in the encounter leading
up to the moment that an officer used force, and consideration of
the officer’s actions in response to those circumstances.
Of course, the Maryland Use of Force Statute cannot amend
the United States Constitution or change the Supreme Court’s
interpretation of the Fourth Amendment. The Supreme Court’s
Graham standard will thus continue to serve as the test for
determining whether a police officer’s use of force violates the
Fourth Amendment. Whether Graham also remains the standard
in other civil actions involving police use of force in Maryland is
beyond the scope of this opinion and is ultimately a question for
the Maryland courts. We note, however, that the language of
Maryland’s new statute provides only for criminal liability based
on a violation of the “necessary and proportional” standard and,
even then, only when the violation is intentional and leads to death
or serious bodily injury. 2021 Md. Laws, ch. 60 (to be codified at
Gen. 33] 73
§ 3-524(i)). Although violations of the standard will also be
grounds for possible disciplinary action against police officers, see,
e.g., 2021 Md. Laws, ch. 59 (to be codified at PS § 3-212(a)(1)(ii))42,
there is no express mention in the statute of civil liability for
violations of the new standard, and we have seen no indication in
the legislative history that the new law was specifically intended to
establish a new civil standard. In fact, when lawmakers imported
the gist of the use of force standard from House Bill 670, they
omitted a provision that would have authorized “a civil action for
damages arising out of the use of force by a police officer in a
manner inconsistent” with the “necessary and proportional”
standard. Compare H.B. 670, 2021 Leg., Reg. Sess. (Third
Reader), with S.B. 71, 2021 Leg., Reg. Sess. (Enrolled Bill).
III
Conclusion
In our opinion, under the new Use of Force Statute, force is
not “necessary” unless there is no reasonable alternative to using
force that, under the totality of the circumstances, would safely and
effectively achieve the same legitimate ends. Even when the use
of some force is necessary, however, an officer may use no more
force than is reasonably required under the circumstances to
accomplish the officer’s legitimate ends. Finally, the proportionality
requirement also prohibits an officer from using force if the harm
likely to result from that force is too severe in relation to the value
of the interest that the officer seeks to protect. This new standard
does not require officers to be omniscient or to jeopardize their own
safety by pursuing alternatives that are not reasonable under the
totality of the circumstances. Nor does the standard necessarily
require an officer responding to an attack to use the exact same
type, degree, or amount of force as the attacker. But the new
standard is materially different from, and is stricter than, the
prevailing standard that has typically been used in Maryland for
determining whether a police officer’s use of force is justified.
Brian E. Frosh
Attorney General of Maryland
Rachel A. Simmonsen
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice
42
Violations can also potentially lead to actions taken against the law
enforcement agency. 2021 Md. Laws, ch. 59 (to be codified at PS § 3-
207(j)).