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:
- 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!)