"Officers shall attempt to control an incident by using time, distance, communications and available resources in an effort to de-escalate the situation, whenever it is safe and reasonable to do so."
Amazing words right? One would think that these were magic words that were so important that every PD or sheriff’s office use of force policy must include them. You would think based on the insistence of the Los Angeles Police Commission and chief’s office that these 31 words, added to the 1,100 word use of force policy would be Earth shaking… You be the judge.
A month later the Chicago Police Department released a new use of force policy as well. The difference between the former and new one? Well, the magic words Sanctity of Human Life – “The Department’s highest priority is the sanctity of human life. In all aspects of their conduct, Department members will act with the foremost regard for the preservation of hum life and the safety of all persons involved.” CPD has added a Core Principle as well, “The Chicago Police Department seeks to gain voluntary compliance of subjects, when consistent with personal safety, to eliminate the need to use force or reduce the force that is needed.”
Additionally, the CPD has added a section on de-escalation, “Members will use de-escalation techniques to prevent or reduce the need for force when it is safe and feasible to do so based on the totality of the circumstances. This includes continually assessing the situation and modifying the use of force as circumstances change and in ways that are consistent with officer safety. Examples of de-escalation techniques include but are not limited to:
- Exercising persuasion and advice, and providing a warning prior to the use of force.
- Determining whether the member may be able to stabilize the situation through the use of time, distance, or positioning to isolate and contain a subject.
- Requesting additional personnel to respond or make use of specialized units or equipment including crisis-intervention-team training officers.”
Both the CPD policy and the LAPD policy refer to the legal standards on use of force from the Graham v. Connor decision, it is clear that their policy additions are based on 20/20 hindsight and Monday morning quarterbacking. Indeed, the LAPD and other police agencies within the 9th Circuit Court of Appeals had to deal with the absurd “provocation rule.” This rule, which was just overturned by the SCOTUS in the L.A. v. Mendez case, looked at officer created jeopardy and applied what was touted by the Obama Administration’s Department of Justice as the “segmentation” approach to use of force. Put simply, the 9th Circuit and the former USDOJ Civil Rights Division examined police tactics prior to a use of force seizure. SCOTUS overturned the 9th Circuit. Justice Alito in writing the 8-0 majority opinion stated, “An excessive force claim is a claim that a law enforcement officer carried out an unreasonable seizure through a use of force that was not justified under the relevant circumstances.”
Though the L.A. v. Mendez decision came out after the new LAPD and CPD policies the concepts of Graham v. Connor have been clear since 1989. Use of force is to be judged at the moment force is used. Whether lesser force options or tactics could have been used are irrelevant. In Plakas v. Drinksi, the 7th Circuit stated, “There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can be justifiably used. There are, however, cases which support the assertion that, where deadly force is otherwise justified under the Constitution, there is no constitutional duty to sue non-deadly alternatives first.”
Why then would two of the largest police agencies include such statements? Are they magic? Do they have the ability to keep an officer from making what is later found to be an incorrect use of force decision in circumstances which are tense, uncertain and rapidly evolving? No. They are rather an appeasement to the politics of force so prevalent in today’s law enforcement world. An appeasement which only clouds use of force decision making in the field causing more hesitation and trepidation than clarification. PERF has recommended such language in their principles released last year. Indeed, the language used by PERF is taken almost verbatim. Sanctity of human life as the leading paragraph is directly from PERF (as if this concept wasn’t at the core of law enforcement interactions since Sir Robert Peel). De-escalation as a formal policy? Well let’s see, I’ve written about the preliminary study, published in the FBI Bulletin, Restraint and the Use of Deadly Force which indicated that 70% of officers surveyed stated they had been in a situation where they could have lawfully used force, yet chose not to. Indeed, my own informal research across this nation, has indicated more than 80% of officers could have fired in an encounter, and chose not to.
This lends itself to the flaws of these words in policy and in practice. Like “implicit bias” and the training forced on LE, they are not based on research but rather “feel good” statements designed to placate an uneducated public, “Look Martha, the police have sanctity for life and can only shoot as a last resort…” Politically correct, “touchie-feelie” policy statements do nothing to improve use of force on the street but rather obfuscate and confuse officers. Rather than sticking to the legal parameters of use of force, these supposed magic words carry no weight and provide no direction. Truth is that officers could shoot a lot more subjects than they chose to and that is an amazing fact, frequently ignored.
But my concern is not that an armed or perceived armed, aggressive, threatening or attacking violent suspect is shot. My concern is that far too many officers expose themselves unnecessarily to risk in attempts to keep from using deadly force. The examples of the use of the Taser, tackle or repeated warnings to a deadly subject are far more numerous by officers than bad shootings. Indeed, more than a few officers have stated that they knew they could have shot and chose not to because they didn’t want to be the next officer featured in a viral video. And more officers are killed each year who did not use or attempt to use their firearms in dangerous situations than bad police shootings.
The Real Magic Words
With ambushes against officers up as well as violent crime, I’m more concerned with officer safety than being “stylish,” or politically correct.
PERF, police commissions and administrators may place value on words such as de-escalation believing they are somehow magical. I’ll refer to the magic words I learned as a young patrolman, “You’re under arrest! Put your hands behind your back! Stop resisting! Show me your hands! Get down on the ground!” All of these words, when they are complied with by a criminal suspect, reduce use of force more than any verbiage written in some police policy manual.
