By Michael Brave, President, LAAW International LLC, Scottsdale, Arizona
olice officers and their agencies are under constantly constricting pressures to avoid or reduce their uses of force. These pressures come through increasingly more restrictive court decisions interpreting U.S. constitutional and state force standards, criminal prosecutions of officers, restrictive agency policies and training, plaintiffs’ lawsuits, special interest groups’ criticisms, and published so-called best practices by government agencies and private consulting groups.
Obviously, officers must comply with the constitutional force standards and the officers’ agencies must not have policies or training that causes violations of these standards. Thus, a primary question is: How much force violates the constitutional standard? Obstacles to easily answering this question include some courts are continually deciding cases using more restrictive standards and that the answer often varies with the entity deciding whether the officers’ use of force violated the standard. In 1989, the U.S. Supreme Court stated that “the Fourth Amendment addresses ‘misuse of power,’ not the accidental effects of otherwise lawful conduct.”1 In 2007, the court clarified this “misuse of power” standard to a risk-benefit balancing standard when it stated that “in judging whether [an officer’s] actions were reasonable, we must consider the risk of bodily harm that [an officer’s] actions posed to [a suspect] in light of the threat to the public that [the officer] was trying to eliminate.”2 Many lower courts have interpreted these standards in a broad array of decisions. These lower court decisions include further force restrictions such as in Newman v. Guedry where the court in denying the officers’ motion for summary judgment stated that “[i]f [plaintiff’s] allegations are true, the officers immediately resorted to [conducted electrical weapons (CEWs)] and [a] nightstick without [first] attempting to use physical skill, negotiation, or even commands.”3
Since officers are required to adhere to the constitutional force standards
it is clear that agencies must train their officers in these standards. In a December 2012 decision denying law enforcement defendants’ motion for summary judgment, the court stated, “… although the officers were trained on the proper use of the [CEW], there is no indication that the officers were trained on the constitutional limitations of excessive force.”4 In another recent case, a court upheld a jury verdict on a failure to train officers in their own policies on confronting the mentally ill, stating that the “evidence presented at trial was sufficient to permit the jury to find that the city and [the] chief … failed to train their officers in their own policies on confronting the mentally ill. That failure led [the] officers … to forcibly and needlessly confront a schizophrenic man, creating a situation in which they were forced to shoot him.”5
Most would agree that officers should be guided, trained, and encouraged to use the least force to accomplish lawful objectives under the totality of the circumstances as reasonably perceived by the officers. However, officers also need to know where the lines are that separate constitutionally permissible force from force that will result in being
- criminally prosecuted,
- justifiably (not frivolously) sued in a civil suit, or
- disciplined or terminated.
Officers need to know
- what force are they forbidden from using,
- when they must stop using force,
- when they should not use force, and
- what force, or its avoidance, they are encouraged to use.
In attempting to provide officers with guidance in their force decisions, numerous entities have provided model or sample policies or statements of so-called best practices. Officers and agencies sometimes have great difficulty in analyzing and deciding whether to adopt and implement these policies and best practices. While many best practice statements are helpful in guiding officers’ actions, others are myopic, presented from a particular bias, fail to consider foreseeable consequences of the practice, or a combination of all three.
In considering whether a specific best practice should be adopted, implemented, and applied to its officers, there are numerous factors an agency may choose to consider, including, but not limited to, the following:
- Is the statement clear and unambiguous?
- What adjectives are used with the specific standard statement to indicate a degree of certainty of proof or a degree of standard compliance?
- Is it supported by scientific research or has not been proven or disproven?
- Is it supported by current, as opposed to superseded, scientific research?
- Is it consistent with officers’ field activities or agencies’ actions?
- Does it properly consider probability of occurrence in context and perspective with other options?
- Does it consider all foreseeable consequences of such guidance?
- Does it provide officers with reasonably acceptable latitudes to perform lawful duties?
This article illustrates the importance of considering the foreseeable consequences of such best practice guidance by using a CEW example.
- In March 2011, in a joint project between the Police Executive Research Forum (PERF) and the Community Oriented Policing Services (COPS) Office, U.S. Department of Justice (DOJ), 2011 Electronic Control Weapon Guidelines (PERF CEW) were published.6
- On July 24, 2012, the Civil Rights Division (CRD) of the DOJ filed a consent decree with the New Orleans Police Department (NOPD).7
- On December 17, 2012, the CRD filed a consent decree with the city of Portland, Oregon, regarding allegations that the Portland Police Department (PPD) uses excessive force on mentally ill individuals.8
In this example, the issue is whether officers can intentionally activate more than one CEW at a time against a subject. The discussed guidelines include the following:
- (PERF CEW) “24. Personnel should not intentionally activate more than one [CEW] at a time against a subject.”9 (emphasis added)
- (CRD/NOPD) “58. Officers shall not intentionally activate more than one [CEW] at a time against a subject.”10 (emphasis added)
- (CRD/PPD) “d. Only one [CEW] at a time may be used on a subject, intentionally, except where lethal force would be permitted.”11 (emphasis added)
These guidelines illustrate several key points agencies may wish to consider when deciding to adopt, reject, or adopt with modifications a specific best practice, such as the following:
Clear and unambiguous?
- What does “more than one [CEW]” or “only one [CEW]” mean? Does this mean a single CEW? Or, does it mean a single, completed electrical circuit capable of delivering an electrical charge? Consider a CEW that has two cartridges capable of delivering two completed circuits on a person, and a CEW that has up to three completed circuits. Yet each device is “one” and “only one” CEW. Thus, as written, these guidelines would allow multiple completed circuits on a person as long as they were from only a single CEW. Is this the clear intent of each of these statements?
- What does “where lethal force would be permitted” actually mean? The clear meaning of this is more than one CEW cannot be used to prevent an escalation to “lethal force” until the officer is actually permitted to use “lethal force.”
Adjectives—the degree of compliance (from most restrictive to least restrictive).
- CRD/NOPD: “shall not”
- CRD/PPD: “only” “where lethal force would be permitted”
- PERF CEW: “should not”
Supported by research?/b> The guidelines imply that activation of more than one CEW at a time would significantly increase risks to the subject. This is not supported by the foundational scientific literature.12 Now, it is important to be cautious. There are review papers that state, without foundational scientific reference, that multiple simultaneous CEW applications are significantly more injurious. Thus, should a decision be made on a statement without foundational scientific reference or findings, or should a decision be supported by the published scientific literature?
Probability of risk in context of other options?/b> What is the increased probability of risk to the subject for simultaneous discharge of more than one CEW compared to probability of risk and degree of risk of other force options? Consider this situation: Four officers armed with multiple force options encounter a 280-pound male in an altered mental state (manic, delusional, hallucinating, talking to people who are not there, paranoid, inappropriately dressed for the cold weather), standing stationary in a yard holding a large knife in a threatening manner. The man is threatening to kill the officers, his family, and himself. He could charge and attack any of the officers at any moment.
First, if the officers are 15–20 feet away from the man while he is standing stationary and not advancing, are the officers permitted to “use lethal force” at that moment? Under all three standards, the officers are not permitted, or are discouraged, to intentionally deploy more than one CEW at a time.
Now, is the use of “only one” CEW the most prudent force option decision? One possible option is to position two officers to the subject’s back and simultaneously deploy their CEWs to his back to dramatically increase the likelihood of successful capture and control with a low risk of injury. Consider if only one officer is permitted to deploy a CEW into the subject’s back, what are the foreseeable consequences if the CEW fails to deliver a charge (which can occur for a myriad of reasons)? The obvious consequences are that the subject may be perceived as charging an officer and the man will be shot (with a firearm).
Thus, consider this for a suggested guideline: Generally, only one completed CEW circuit may be intentionally used on a subject unless
- neuromuscular incapacitation is not achieved,
- the subject is reasonably perceived to continue to be an immediate threat of serious injury,
- the use of deadly force may reasonably be avoided, or
- other exigent circumstances justify the simultaneous multiple completed circuits.13
A best practice should be fully considered and vetted before being adopted. One of these considerations includes assisting officers in making better force decisions and providing optimal force reporting in the incident aftermath.♦
1Brower v. County of Inyo, 489 U.S. 593, 596 (1989), and Milstead v. Kibler, 243 F.3d 157 (4th Cir. 2001).
2Scott v. Harris, 550 U.S. 372, 383 (2007).
3Newman v. Guedry, 703 F.3d 757 (5th Cir., E.D. Tex., December 21, 2012).
4Rosen v. King, ___ F.Supp.2d ___, 2012 WL 6599923 (N.D. Ind., December 18, 2012).
5Ostling v. City of Bainbridge Island, 2012 WL 4480550 (W.D. Wash., September 28, 2012).
6Police Executive Research Forum and Community Oriented Policing Services, 2011 Electronic Control Weapon Guidelines, March 2011, cops.usdoj.gov/Publications/e021111339-PERF-ECWGb.pdf (accessed February 22, 2013).
7Consent Decree Regarding the New Orleans Police Department, filed July 24, 2012, United States of America v. City of New Orleans, U.S.D.C., EDLA, Case 2:12-cv-019240-SM-JCW, www.justice.gov/crt/about/spl/documents/nopd_consentdecree_7-24-12.pdf (accessed February 25, 2013).
8Proposed Settlement Agreement, Attachment 1 to Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action, December 17, 2012, U.S. v. City of Portland, U.S.D. Or., Portland Division. Case No. 3:12-cv-02265-SI, media.oregonlive.com/clackamascounty_impact/other/memoranduminsupportusavcityptd.pdf (accessed February 25, 2013).
92011 Electronic Control Weapon Guidelines, 20.
10Consent Decree Regarding the New Orleans Police Department, 20.
11Proposed Settlement Agreement, Attachment 1 to Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action, U.S. v. City of Portland, A. Use of Force Policy. 1. Electronic Control Weapons 68, 18.
12Donald M. Dawes et al., “The Physiologic Effects of Multiple Simultaneous Electronic Control Device Discharges,” Western Journal of Emergency Medicine 11, no.1 (February 2010): 49–56.
13Proposed Settlement Agreement, Attachment 1 to Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action, U.S. v. City of Portland, definition of “‘Exigent circumstances’ means circumstances in which a reasonable person would believe that imminent and serious bodily harm to a person or persons is about to occur,” 10, paragraph 29.
Please cite as:
Michael Brave, "Constant Constrictive Pressures to Avoid or Reduce Use of Force and the Quagmire of So-Called Best Practices," Chief’s Counsel, The Police Chief 80 (April 2013): 12–14.