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.
Agencies must:
- 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
Officers must:
- Know the law including the Constitutional standards
- Have a lawful objective for taking action based on Reasonable Suspicion or Probable Cause
- Follow policy
- Avoid profanity on the street which might be captured on tape
- Report all use of force incidents promptly to a supervisor
- Identify witnesses for interview by supervision
- Review the tape prior to writing your report to aid your recall
- Properly document the incident
- Ensure that each officer involved writes their own use of force report
- Don’t hesitate to contact a union shift rep for guidance
- Understand that good police reports are seldom first drafts and rewriting is usually called for
- Have a senior officer or your supervisor read the draft before submission
Writing the Report
Documentation must include the following: the totality of the circumstances including but not limited to: the severity of the crime; the threat to officers or others; whether the suspect was actively resisting arrest; or attempting to evade arrest by flight; if/how the circumstances were tense, uncertain, and rapidly evolving. Other factors like environment, location, multiple suspects, size disparity, injury, exhaustion and more should be documented as well. Don’t document by way of conclusions, i.e. “He resisted arrest,” or “I attempted to control him.” Specifically list instead the facts of what the suspect did and said as well as what you said and did. If you apply force (spray your pepper spray or deploy your electronic control device) put the details down of where they were applied, for how long and what the suspect did in response. Avoid police jargon, write clearly in a way that a layperson would be able to understand.
Wrap-Up
I ask my officers, “Do you really think that there is anywhere you police that your actions will not be captured on videotape?” From cell phones to business surveillance cameras to the camera system in your own patrol vehicle or those of other officers, even from other agencies, that your actions and those of your Brother officers will be captured on tape is a very real possibility. First of all, do the right thing and then properly document your actions after viewing the tape. Agencies don’t assume that because it looks “bad” or violent that it is excessive. Examine the tape with the objective reasonableness standard in mind based on the totality of the circumstances at the moment the officer used force.
In most instances these tapes work for us not against us we just need to be prepared to articulate and justify our actions and properly investigate the incident.
About the Author:
Kevin Davis is a full-time officer assigned to the training bureau where he specializes in use of force, firearms and tactical training. With over 23 years in law enforcement, his previous experience includes patrol, corrections, narcotics and he is a former team leader and lead instructor for his agency's SWAT team with over 500 call-outs in tactical operations.
