Officer: Your use of force is caught on tape and it doesn't "look good." What to do?
Agency: Your officer's use of force caught on tape doesn't look. What do you do?
I’ve recently worked on several cases as an expert witness in defense of officers whose use of force was captured on tape and who were subsequently charged with criminal offenses. The defense team was successful in both cases winning dismissals or acquittals. Central to the prosecution’s case was dashboard camera or business security camera video footage. How can agencies properly interpret these videos and how can officers articulate their use of force when it looks bad?
The first question we must address is, "Can a use of force that looks brutal be within legal parameters?" The answer is that even lawful police use of force seldom looks pretty. As an example, even fingertip pressure as applied to pressure points may result in screams of pain, distorted faces of criminal suspects and not "look good" on tape, so even these minor applications of force can create visual images and audio recordings that may seem brutish or excessive. More forceful suspect control techniques can look even worse but “looks” are not the focus. Whether the force was lawful is the object of the first investigation with an internal investigation into policy compliance a secondary and separate investigation.
- Train supervisors and officers in the constitutional parameters of use of force (Graham v. Conner and the Objective Reasonableness standard)
- Streamline policies so they are in compliance with the legal standards
- Develop policies that mandate post use of force incident reporting, documentation and investigation
- Follow your policies
- Mandate that supervisors and Command personnel attend the same in-service programs as line personnel so everyone is on the same page
- Train supervisors in use of force documentation
- Require solid use of force reporting by officers clearly documenting totality of the circumstances
- Train supervisors and Command personnel in how to conduct use of force investigations
- Interview all witnesses on audiotape
- Photograph all injuries of officers and suspects
- Understand that because the standard is an “objective” one, subjective issues such as an officer’s intent or emotion are not part of the equation
- Don’t get hung up on issues such as whether the officer seemed “angry” or used profanity – it’s entirely possible he or she was angry but that’s a subjective emotion and profanity does not indicate unreasonableness
- Understand that officer’s memories are not like a recorded tape and there will be lapses, inconsistencies and differences between officers involved in the same incident
- Be cognizant of the human factors involved including: tunnel vision, auditory exclusion, time distortions, and in-attentional blindness
- Ask yourself “How many times did the suspect have to comply?”
- Understand that the video is a two dimensional image and does not convey distances or depth
- Understand that the video is not the incident and that events occurring prior to the tape or out of frame will not be captured
- Make sure that the video actually depicts the use of force event (one officer was indicted for felonious assault based on a tape that did not even depict the actual shooting)
- Judge the incident on the facts and don’t succumb to the political pressure if a tape is leaked or goes “viral”
- Understand the difference between a criminal investigation and an internal investigation and do not comingle the two
- The equation is reasonable use of force, based on reasonable perceptions and the totality of the circumstances
- Don’t engage in 20/20 hindsight or tactical critiques as part of the investigation. The Supreme Court stated that force should be judged at the moment it is used from the perspective of a reasonable officer on scene
- Whether the statement is volunteered or compelled under Garrity, get a statement from the officer(s) involved