Stay with me here...I'm going to attack a sacred cow. You know what that is, right? A "sacred cow" is a belief that is so strongly held, or has been in place for so long, that no one questions it anymore--it's just accepted as truth.
How many law enforcement sacred cows can you name right now, off the top of your head? If it's less than ten, you're not even trying.
Here's one of my favorites--force continuums. Or, at least, the concept of the "force continuum." Depending on who you listen to, they've either been around since the early 1980s, or they have their roots in early 20th century policing. No matter. There are few of us in policing nowadays that can remember a time when force continuums weren't a concept to be reckoned with, in policy and in training.
Here's the problem. A continuum is useful for one thing--illustrating the relationship between resistance and control. It's a "picture" that is used to help someone understand the concept of a balanced response to aggression. In this regard, a continuum is a theoretical construct, and a useful one.
A Little History
Over the years, the concept of the continuum has gotten all stretched out of shape. It started when we began using it to justify our actions, i.e., our response to forceful provocation. Continuums found their way into courtrooms, used by both the defense (us) and the plaintiffs (them). Sometimes the same continuum would be used to support both sides of a case. Figure that one out.
Continuums also began to be incorporated into policy, and that created an even bigger problem. In many cases, the way these continuums were assimilated into policy led departments to unknowingly adopt a higher standard for use of force than the courts required. In the last couple of years, a growing number of police trainers and authors, as well as many police defense attorneys, have begun to speak out against this use of continuums.
What does all this have to do with technology? Good question! The fact is that continuums are almost always cast in terms of the technology in use by a given department, and that is highly problematic. We took a concept--a theoretical construct--and we turned it into a "list" of weapons, placed in some theoretical rank order, based on our perception of the damage those weapons or tools might do. In doing so, we created a monster, and further distorted the concept of the continuum.
Here's an example: Where does your department place OC on your continuum? That was the burning question (oops, sorry--bad pun) 10 to 15 years ago. That question consumed reams of paper in lesson plans, research articles, and written policies, and never was properly answered.
Today the same question is applied to electronic control devices, or conducted energy weapons--typically TASERs. So, where does your department place the TASER on your continuum?
The placement of a specific tool or weapon onto a continuum is supposedly based on the degree of force the tool represents. The problem is that this concept of "force" is a nebulous thing, very difficult to quantify. What exactly does it mean? Is it rooted in the tool's potential to overcome resistance? Or maybe in the degree of potential damage the tool can cause?
In the early 1990s I shifted careers, and got involved in risk management. In learning my new "trade," I got pretty involved in trying to understand policy issues, especially as they related to high risk police activities like use of force. Naturally, this stuff about continuums was at the center of many departments' policy development efforts. Many of us thought that we knew the answers to questions about weapon placement on continuums. But, the more we tried to refine the concept, the muddier it became. Eventually, it became clear that continuums just cannot and should not be used in the way we were trying to use them. That's the sacred cow, and the first time I brought these issues up at a mid-1990s ASLET conference, the audience looked at me like I had just committed heresy.
Technology vs. Continuums
Simply stated, you cannot place specific tools, techniques or weapons, or any other technology, at any specific place on a continuum. And, you certainly can't base your department's policies and procedures on such a continuum.
Let's try. Most of us would agree that impact weapons represent intermediate force--which is usually defined as use of force with an implement that is likely to result in an injury that is non-lethal--and many departments place them relatively high on their continuum, usually directly below deadly force. Seems safe. Wait a minute though, what if you hit someone in the head with your baton? Oh, you say, that's deadly force! Why? Because it's likely to result in serious injury or death, you say. Okay, then where do you put the baton? Is it intermediate force or deadly force?
What about your handgun? Deadly force, of course--right? Hard to disagree with that, after all the commonly used definition of deadly force is drawn from the Model Penal Code, and is loosely stated as any force that is likely to result in death or great bodily harm. Shooting someone certainly meets that definition. Clearly, a firearm is deadly force, and should be placed at the top of the continuum.
Or should it? Shooting someone is clearly deadly force, but what about just pointing your firearm at them? Is that deadly force as well? Does it meet the definition we just stated? Probably not. Pointing a firearm at someone is not likely to result in death or great bodily harm. So, where do we put the firearm on our continuum?
Let's go back to that question about the OC. What level of force does it represent? Many departments hold that use of OC is unlikely to result in injury, but it's helpful in reducing injuries to officers and suspects if it's used early on, at the low end of the continuum, before the fight starts. That places it below or in the lower end of "empty-hand techniques". But wait a minute, OC is an implement, it's not "empty-hand." Hmmmm…
Of course, the flip side of the argument is made by other departments. Since there was a lot of talk about people dying or being seriously injured by OC, some departments placed it high on their continuum, just below deadly force. But, if the rationale for doing that is that it was dangerous to use at the lower end of the continuum, then shouldn't it have to meet the definition for deadly force? "Any force that is likely to result in death or great bodily harm." Does anyone really believe that OC meets that definition? If not, then why put it way up there on the high end of the continuum?
By the way, both of the preceding arguments apply almost exactly to the issue of TASERs in the more recent context. So, where do we place our OC and TASERs? Are they low-level control devices, unlikely to result in injury? Or are they high level weapons, the use of which is likely to result in death or serious injury? We have to know, because we have to place them on our continuum! Don't we?
Remember that we need to factor in the likelihood of injury, as well. Just because some technique or some weapon "might" cause a certain outcome, death for example, does not mean that it's "likely" to. Anything "might" cause death, so does that mean that every tool, weapon or technique you have should be classified as deadly force? No, of course not. We have to base decisions on likely outcomes, not just possible ones.
And just for fun, consider handcuffs and other restraint devices. No question--if we're placing force implements on the continuum, they have to go on there somewhere. We never have figured that one out.
You can carry this argument on through just about any tool or technique you can think of: neck restraints, your patrol unit, a punch or a kick, your mere presence, the list is endless. And the same questions apply to all.
The Real Issue
The issue is not what the particular tool, weapon or technique, is. The real issue is how it's used. Depending on how you use something, what part of someone's body you target, or how close you are to them when you deploy your weapon, there will be a likely result. And that likely result will differ based upon many variables. How, then, is it possible to quantify a specific piece of technology, and place it at a specific place on a specific continuum?
It's not. And, fortunately for us, that is not the standard that the courts hold us to. The standard, or course, is objective reasonableness. That's a term that is hard to define, but easy to recognize. We have made the operationalization of objective reasonableness way too complicated. We can't have it both ways. When we try to over think the issue, we start to outsmart ourselves. We draw up a continuum, we plug in weapons, and we cast it in stone. Then we wrap our use-of-force policy around it. Along the way, we've actually added to the problem, rather than helping to solve it.
Go read up on Graham v. Connor, 490 U.S. 386 (1989). Here's the core of what the Supreme Court said:
- The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application;
- Its proper application requires careful attention to 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 he is actively resisting arrest or attempting to evade arrest by flight;
- The "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;
- Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers...violates the Fourth Amendment;
- The calculus of reasonableness must embody...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.
- 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.
That's the standard. Trying to create a tighter framework is counterproductive, and just gives rise to a whole new set of problems. The simpler we can keep this, the less likely we are to have difficulties in implementation. The courts have told us what to do; we have weapons, tools and techniques that we can use to get that job done.
A continuum represents levels or control, and those levels of control are based on likely outcomes. So, if you must have a continuum for your agency, try this for levels of control:
- Presence
- Dialog
- Officer Actions that are Unlikely to Result in Injury
- Officer Actions that are Likely to Result in Minor Injury
- Officer Actions that are Likely to Result in Death or Great Bodily Harm.
Technology will aid officers in applying these levels of control. The standard for how much control to use is whatever is objectively reasonable under the totality of the circumstances faced by the officer.
Stay safe, and wear your vest! (and Buckle Up!)
