Use of Force-101

Your significant other has purchased a new: shelving unit, up-right vacuum cleaner, or piece of electronic entertainment equipment (some assembly required), and you are tasked with following the instructions that come with said piece. Sitting on your living room floor with the pieces parts displayed before you, the instructions read, "Affix Part #1 into Part #2 by inserting Tab A into Slot B. Once affixed tightened the corresponding widget by turning one complete turn clockwise. CAUTION: Do NOT tighten the widget counter-clockwise as this may break off the sprocket teeth." Now, let's complicate the task by requiring you to run up and down the basement stairs four times, bench press your body weight until exhausted and then step into a cage match with the heavyweight MMA champ. All of a sudden, those once seemingly clear directions are a little blurry: "Where's Tab A and which way is clockwise?"

Sound silly? Not really when you consider this is exactly what many agencies have done with use of force.

Convoluted Continuums

Several years ago we attempted to simplify use of force by developing charts that appealed to the anal retentive amongst us. If the suspect does "A", you can do "B." If the suspect does "C", you can do "B & D." These linear, step style, circular or every-geometric-shape-imaginable charts became known as continuums. Despite the hallmark Use of Force case Graham v. Connor and the Supreme Court's admonition that the reasonableness of a use of force is "not capable of precise definition or mechanical application," the use of force continuums continued to grow. John Hall and Urey Patrick state in the excellent book, In Defense of Self and Others: Issues, Facts & Fallacies of Law Enforcement's Use of Deadly Force (Carolina Academic Press; 2005), "Events that emerge during encounters between law enforcement officers and criminal suspects defy such neat solutions."

According to famed use of force expert Bruce Siddle, continuums were originally designed to do two things: help teach use of force and help evaluate use of force. Some developers tried to incorporate the chaos and variables that usually accompany police use of force by including:

size of officer versus suspect
gender
exhaustion and injury
presence of a weapon
other factors

Still the resultant chart did little to clarify and frequently seemed to hamstring officers. This was further aggravated by trainers looking to make a buck holding one or two day courses where they explained the confusing charts ($100.00 per day, we take cash, checks, Mastercard®, Discover® and American Express®). Those same "trainers" fill their coffers even more by offering to testify for your agency in court if you use their continuum (if you think this is silly, I once had a prominent government instructor tell me I shouldn't train with the company I was inquiring about because, "I'm more available for professional witness work." He is, of course, the originator of his own continuum.)

Not happy enough with confusing our poor street officers with the question, "When can I do what in light of someone attempting to punch my teeth down my throat?" policies were developed that incorporated the continuum concepts. Reading like a veritable recipe, "Faced with a suspect attempting to punch or kick you, you may: use your baton to large muscle masses (or) use your Taser® (or) your pepper spray or any technique from Section: 2, Paragraph: B." These super restrictive and detailed policies were sometimes 15 pages long (or longer). That is certainly not the kind of instruction and direction our officers need when facing a violently assaulting suspect.

These oftentimes more-restrictive-than-the-law policies set the stage for an officer to have a perfectly legal use of force and yet violate their own policy. There are even continuums that avoid the phrase "use of force" because it sounds bad. Is the term good enough for the Supreme Court to use but not good enough for us?

Although the original concept of continuums was an honorable one (at least for some) their days have come and gone. Toss 'em out and the policies that incorporate them.

If Not a Continuum, What Then?

We should have use of force training and policies that incorporate the legal direction of the Graham v. Connor and Tennessee v. Garner. The Supreme Court has given us standards for use of deadly and non-deadly force in these two cases and lower courts have defined reasonableness even more. Throughout this country these cases are the guidelines for police use of force. The standard for police force per the Supreme Court is based on use of force being a "seizure" and the "Objective Reasonableness" test of the Fourth Amendment applying. Force does not have to be perfect nor the minimum amount necessary. Indeed, based on the totality of the circumstances the force could be found to be reasonable even though it was not necessary. This is true of deadly as well as non-deadly force. (Tragically officers have killed suspects with combs, cell phones and wallets in their hands when they thought their lives were in danger and found to have used reasonable force based on Graham. This is not an excuse for every mistake-of-fact shooting; simply used to illustrate that all force is to be judged "at the moment it is used.") Specifically the Supreme Court stated, "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on scene rather than with the 20/20 vision of hindsight." When I testified for an officer charged with Felonious Assault on a use of force and stated "Force is to be judged at the moment it is used," the prosecutor handed me a copy of the Graham decision and with sarcasm in his voice asked, "Mr. Expert Witness read to me where the Supreme Court said that?" I read aloud to the jury, "With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers." The nonplussed prosecutor muttered, "That's not what that means." I asked him if he wanted me to read it again. The point had been made and the officer was acquitted.

There are many facets of the Supreme Court's Graham decision that need to be instructed such as officers weighing: the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; whether the suspect is trying to resist or flee; are the circumstances are tense, uncertain and rapidly evolving. Agencies that have corrections divisions need to incorporate Eighth Amendment "Cruel and Unusual Punishment" standards into policies for convicted inmates as well as 14th Amendment "Shock the Conscience" standards for pre-trial detainees.

What constitutes reasonable force? Use of force expert and attorney Michael Brave states, "A law enforcement officer may use that amount of force upon a person that the law allows. A law enforcement officer may not use more force upon a person than the law allows."

With officer deaths at a 30 year high and assaults against officers increasing, it is incumbent on agencies to clarify use of force for officers, not confuse them with complicated, convoluted continuums.