New Requirement that Law Enforcement Officers Intervene and Report Excessive Use of Force

The North Carolina Task Force for Racial Equity in Criminal Justice recommended in a 2020 report that state and local law enforcement agencies enact policies requiring officers to intervene in and report about circumstances in which a law enforcement officer witnesses excessive use of force or abuse of a suspect or arrestee. The North Carolina Sheriff’s Association similarly recommended in a 2020 report that all law enforcement agencies and the North Carolina Law Enforcement Accreditation Program adopt a policy requiring an officer to intervene when necessary to prevent another officer from using excessive force and to report any such intervention. This session, the General Assembly imposed such duties as a matter of state law rather than agency policy. This post will discuss current statutory law governing officer’s use of force and recent amendments enacted by S.L. 2021-137 (H 536) and S.L. 2021-138 (S 300).

Current law. G.S. 15A-401(d)(1) permits a law enforcement officer to use force to arrest a person whom the officer reasonably believes has committed a criminal offense or to prevent such a person’s escape from custody. A law enforcement officer also may use force to defend himself or a third person from what the officer reasonably believes to be the use or imminent use of physical force while the officer is attempting to carry out an arrest or prevent an escape. An officer may only use the amount of force that the officer reasonably believes is necessary to prevent the escape, effect the arrest, or to defend the officer or the third person.

A law enforcement officer is statutorily authorized use deadly physical force in effecting an arrest or preventing an escape if it is or appears to be reasonably necessary to (1) defend the officer or a third person from what the officer reasonably believes to be the use or imminent use of deadly physical force; or (2) prevent a person held in custody pursuant to a felony conviction from escaping. See G.S. 15A-401(d)(2). An officer also is authorized by statute to use deadly physical force to arrest or prevent the escape of a person who (a) is attempting to escape by using a deadly weapon or (b) presents an imminent threat of death or serious physical injury to another unless immediately apprehended. Id. (You can read about constitutional limitations on officers’ use of deadly force in this earlier post and in my colleague Robert Farb’s book, Arrest, Search, and Investigation in North Carolina, at pp. 67-68.)

Recent amendments. S.L. 2021-137(H 536) and S.L 2021-138 (S 300) enacted identical amendments to the state’s use of force statute, both effective December 1, 2021. New G.S. 15A-401(d1) requires, in specified circumstances, that a law enforcement officer intervene to prevent excessive use of force by another officer and that an observing officer report another officer’s excessive use of force.

Duty to intervene. The duty to intervene applies in the following circumstances:

  1. A law enforcement officer is in the line of duty;
  2. The law enforcement officer observes another law enforcement officer use force against another person;
  3. The observing officer reasonably believes the force used exceeds the amount of force authorized under G.S. 15A-401(d); and
  4. The observing officer has a reasonable opportunity to intervene.

When these conditions are met, the observing officer must, if it is safe to do so, attempt to intervene to prevent the use of excessive force.

Duty to report. When the first three criteria listed above are satisfied (and regardless of whether the observing officer had an opportunity to intervene), the observing officer must report what he or she believes to be an unauthorized use of force. The report must be made within a reasonable period of time not to exceed 72 hours after the observation. The observing officer must make the report to a superior law enforcement officer within the observing officer’s agency.

If the head of the law enforcement agency of the observing officer was involved or present during the alleged unauthorized use of force, the observing officer must make the report to the highest ranking officer in the agency who was not involved in or present during the use of force.

Consequences. The legislation does not impose a penalty for violating the intervention or reporting requirements. The consequences for such a violation may well come in the form of agency policy. The policy recommended by the Sheriff’s Association stated that “[f]ailure to report as required may result in disciplinary action up to and including dismissal, and possible criminal charges.” It also is possible that a violation of G.S. 15A-401(d1) could be charged as misdemeanor under the common law theory that when a statute commands an act but does not provide for a penalty, the violation may be punished as a misdemeanor. See State v. Bishop, 228 N.C. 371 (1947).

New crimes for resisting arrest. In addition to imposing a duty to intervene and report, S.L. 2021-138 (S 300) amended G.S. 14-223 to create new crimes for willfully and unlawfully resisting, delaying or obstructing an officer and causing serious injury to an officer in the process. New G.S. 14-233(b) makes it a Class I felony to willfully and unlawfully resist, delay, or obstruct a public officer in discharging or attempting to discharge an official duty if the resistance, delay or obstruction proximately causes an officer’s serious injury. New G.S. 14-233(c) makes this behavior a Class F felony if it is the proximate cause of an officer’s serious bodily injury. These provisions are effective December 1, 2021, for offenses committed on or after that date.

Public service announcements. S.L. 2021-138 also requires the Department of Public Safety (DPS) to create a targeted social media campaign and television commercials to “raise public awareness about resisting, delaying, and obstructing law enforcement officers and encourage North Carolina residents to interact with law enforcement officers safely.” DPS also is required to create a public service announcement for its website “containing legally accurate information regarding the public’s responsibilities during traffic stops and other interactions with law enforcement.” DPS must share the public service announcement with the Division of Motor Vehicles, which must publish it on its website and display it on monitors at driver’s license offices.