Use of Force Expert Witness, on Either Side of the Caption

For plaintiff's counsel in a civil rights matter, the question is where the agency's own documents show the force departing from policy, training and accepted practice, and where they show it staying within them. The analysis answers application by application. One report can find a takedown consistent with the officer's training and the strikes that followed it inconsistent, and each finding names the part of the record behind it, so counsel can see which parts of the theory the record carries.

The excessive force claim itself, its fact patterns from shootings to restraints, and the yardsticks a force case is decided on are set out on the use of force page. Before a complaint is filed, a preliminary case-merit evaluation, one of the published engagement forms, gives counsel an early read on whether the record supports the theory.

When a current or former officer is charged with a crime arising from force used on duty, the officer's defense counsel can retain the same analysis. The forum changes and the measure does not: the force is read against the policy in force that day, the training the officer actually received and generally accepted police practices, in the order the officer met the events and without hindsight, and the report still stops at police practices.

A criminal file often holds more than one account from the officer, given at different times and for different purposes. The analysis identifies which statements in the file were compelled administrative statements and which were not, and reads each one where it falls in the sequence; how those statements are taken is covered at officer statements after a use of force. Whether any statement may be used, the elements of the offense, any justification defense and the instructions the jury receives are legal questions for counsel and the court.

A force record is made in stages, and when a document was made shapes what it can prove. The first stage is written before anyone involved knew there would be an incident: the agency's use-of-force policy and general orders, and the officer's academy, field training and in-service records. Those documents record what the officer was required to do and what the officer was taught, and they were created for the agency's own purposes rather than for a lawsuit or a prosecution.

The policy that matters is the version in force on the date of the incident, not the one published later, and the training that matters is what the file shows the officer actually received, read course by course and date by date as set out at what training records reveal. Whether the agency taught force as a continuum or as a decision model shapes the vocabulary of both sets of documents, and the two models are compared at force options and decision models.

The legal frame for the encounter comes from Graham v. Connor, 490 U.S. 386 (1989), which holds that a claim that officers used excessive force in an arrest, an investigatory stop or another seizure of a free citizen is analyzed under the Fourth Amendment's objective reasonableness standard, judged from the perspective of a reasonable officer on the scene rather than with hindsight. The factors the Court named are taken one at a time at Graham v. Connor explained. Deadly force used against a fleeing suspect adds Tennessee v. Garner, 471 U.S. 1 (1985), which holds that using deadly force to apprehend a suspect is a seizure and must be reasonable under the Fourth Amendment; the rule it states is set out at the deadly-force standard.

Keeping hindsight out does not mean leaving out what came first. In Barnes v. Felix, No. 23-1239 (U.S. May 15, 2025), the Supreme Court rejected a rule that confined a court's review of a police shooting to the moment of the threat, and held that a court weighing an officer's use of force must look at all the relevant circumstances, including what happened before the moment of force. The Court said the inquiry has no time limit, that the situation at the precise time of the shooting will often matter most, and that the earlier context may benefit either party. It left open whether, or how, it matters to that analysis that the officer's own actions created the danger.

A practices analysis also reads the whole encounter, though it does not answer the Fourth Amendment question those cases put to a court. It reads the encounter forward from the first dispatch entry, fixes what the officer knew at each decision point, and keeps out anything learned only afterward, the method set out at totality of the circumstances. The approach, the positioning and any warning are measured against what policy and training required when each happened, and how a shooting record divides into the approach, the shots and the aftermath is set out under officer-involved shootings.

The opinion states, practice by practice, whether the force documented in the record was consistent with the agency's policy, the officer's training and generally accepted police practices in the circumstances the officer faced. Its limits are stated on the record rather than left for cross-examination to find.

It does not say whether the force was objectively reasonable under the Fourth Amendment, excessive in the legal sense, or grounds for liability or guilt. Legal conclusions remain counsel's, and where that line sits is set out at legal conclusions and the expert. It does not say what the officer intended or felt: Graham measures the constitutional question without regard to the officer's underlying intent or motivation, and the practices analysis measures conduct. And it does not answer medical questions, human factors questions such as perception and reaction time, or questions about a recording's integrity, which go to qualified experts in those disciplines.

Professor Gilbertson is not an attorney and gives no legal advice. Retaining counsel is responsible for the admissibility of reports and testimony, and no outcome is promised in any matter.