By Lorie Fridell, Associate Professor, University of South Florida, Tampa, Florida; Steve Ijames, Major (Retired), Springfield, Missouri, Police Department; and Michael Berkow, President, Kroll Security Group, New York, New York, and Deputy Chief (Retired), Los Angeles, California, Police Department
uring the last several years, there has been a resurgence of the debate surrounding the linear use-of-force continuum. A number of professionals have argued that force continuums must be laid to rest; they argue in favor of a continuumless “just be reasonable” standard. The “just be reasonable” proponents have made their arguments in articles and conferences with way too little rebuttal to what the authors will argue below are specious and unsupported claims. Shults writes that “the use-of-force continuum is dying a slow death.”1 To paraphrase Mark Twain, the authors believe that the reports of the continuum’s demise are, in fact, greatly exaggerated. They also believe a movement in that direction can be thwarted if the unsupported claims and the straw-man arguments that have characterized the “just be reasonable” perspective are laid bare. In an era in which evidence-based policing is becoming the norm, the authors are surprised and dismayed at the traction the “no continuum” promoters have achieved absent a shred of research.
In this commentary, the authors provide some background for the discussion and then list and respond to each argument made in favor of the “just be reasonable” perspective. They argue that agencies should have a use-of-force continuum that is conveyed in both policy and training.
For many decades, law enforcement agencies have sought better methods for training their officers on how and when to use force. Continuums were first created and used in the early 1970s by trainers who were looking for ways to convey to officers when to use force and how much force to use. The models have evolved over the years, producing an array of use-of-force continuums that vary by shape; by number, nature, and names for levels; by officer- versus subject-focus; by references to escalation and de-escalation; and so forth. While the depictions have varied, the intent has been the same: to guide officers in terms of the appropriate level of force to use in the circumstances they are facing.
A key aspect of the models is that they link categories of subject resistance to types or categories of police force. The term “continuum” is used in this article to refer to models that have this characteristic.
Particularly in the last few years, there has been a call for—and some movement toward—doing away with the use-of-force continuum. Some professionals call for its removal from policy but for its retention as a training tool; others call for the continuum to be expunged from a department’s policy manual and training curriculum. As outlined more fully further on in this article, the proponents of this perspective argue in favor of a continuumless “just be reasonable” standard (hereafter “JBR”).
In both continuum agencies and JBR agencies, officers learn that their use of force must be reasonable in light of the totality of the circumstances. In a continuum agency, the training in “reasonableness,” or the discussion of it in policy, includes reference to the continuum conveying that, generally speaking, particular levels or categories of officer use of force will be used to respond to particular levels/categories of subject resistance. In a JBR agency, officers learn (1) how to make the decision to use force and (2) the factors that would impact on their decision making. Thus, for instance, the defensive tactics curriculum of the Florida Department of Law Enforcement (FDLE), used to teach recruits in Florida, has maintained discussions of reasonableness and totality of the circumstances but, in moving to JBR in 2009, replaced the Response to Resistance Matrix with the Force Guidelines. The guidelines articulate subject resistance levels and officer response options, but do not convey how the two might be linked. The trainees are taught how to make the force decision in the context of subject resistance and situational factors.
Arguments for “Just Be Reasonable” and Rebuttals to Them
Bostain, a trainer at the Federal Law Enforcement Training Center (FLETC) and a major spokesperson for the JBR camp, argues that use-of-force continuums are not based upon the standard of reasonableness that was set forth in Graham v. Connor. He writes, “the most obvious pitfall is that Use-of-Force Continuums are not typically based upon the [“objectively reasonable”] standard established by the U.S. Supreme Court in Graham v. Connor.”2
Let us reassure the chiefs and sheriffs with continuums that they have not been violating the Fourth Amendment all these years. Continuums not only reflect the reasonableness standard set forth by the court, but they give it needed substance.
Peters and Brave acknowledge that continuums had value historically, noting that “they were originally designed to provide operational guidance to officers regarding when and how much force can be applied in given situations.”3 These authors claim, however, that continuums are no longer needed now that Graham v. Connor has set forth “clear force standards.”4 The authors do not agree that Graham’s direction to be “objectively reasonable” in light of the “totality of the circumstances” provides clear standards for officers that can be transferred straight from the law book to the street. Continuums that link categories of subject resistance to levels of police force reduce the ambiguity associated with the vague term “reasonableness.” Continuums are designed to facilitate an officer’s understanding of what “reasonable” means. They represent the much-needed middle-ground guidance for officers, which is superior to both (1) the impossible-to-achieve “precise definition and mechanical application” of reasonableness5 and (2) the very imprecise, ambiguous direction to “be reasonable.”
The authors can only scratch their heads when they hear arguments such as, “The [JBR] approach is designed to encourage officers to make objectively reasonable decisions based upon the facts of a situation, rather than the subjective principles defined in [a continuum].”6 They are flummoxed by the contentions here that (1) continuums do not allow for consideration of the “facts of [the] situation” and (2) the JBR is objective and continuums subjective. If anything, the concept of “reasonableness” is much more subjective in the context of the JBR, because the JBR model lacks the guidance provided by a continuum.
Proponents of the JBR criticize the traditional linear continuum because, they claim, it does not allow the officer to consider the totality of the circumstances. Indeed, it would be too rigid and wholly untenable if an agency set in stone the linkage between categories of subject resistance and levels of officer force. Fortunately, agencies that use continuums convey in policy and training that an officer can and should consider the subject, the officer, and other factors and can deviate as necessary from the recommended linkages in the continuum (that is, linkages between subject resistance and officer response) based on those factors. Most agencies use very clear language to convey that the totality of the circumstances reigns supreme. For instance, the Tulsa County Sheriff’s Office policy reads, “Deputies . . . may use a higher degree of force than those shown on the otherwise applicable level of the use-of-force model due to the following circumstances.”7 Indeed, the former FDLE response-to-resistance matrix clearly articulated that deviation from the recommended response levels for categories of subject resistance required only explanation.
Proponents say that JBR provides officers with more flexibility and discretion. This sounds intuitively wonderful for anyone but a chief, a sheriff, or a police historian—any of whom might legitimately wonder whether more discretion and flexibility is inherently good. It was only as far back as the 1960s when line personnel were generously given great discretion in the realm of deadly force. Deadly force policies in even some large departments read in their entirety, “It is left to the discretion of each individual officer when and how to shoot.”8 Police officers killed a lot of people back then—overwhelmingly people of color, and many unarmed; police actions precipitated a lot of riots, too.9 Of course, the example provided is an extreme one, but it is a reminder that 50 years have been spent reining in the discretion on the part of line personnel for good reason. This is no time to lose the profession’s collective memory.10
The JBR advocates claim that (1) officers need to act quickly in use-of-force situations and (2) the linear continuum is detrimental to quick decision making.11 The authors agree, of course, with the first statement, but are not convinced of the second. The JBR advocates seem to claim that as decision-making guidance becomes greater, decision-making time becomes longer. Putting aside for the moment the important point that quick decision making does not necessarily produce quality decision making, the authors do not accept on faith the argument that the relationship is linear between (1) the level of structure or guidance in decision making provided by the agency and (2) speed of decision making in the field. They do not accept without evidence that, as structure or guidance goes up, speed of decision making goes down. They conjecture instead, pending scientific evidence supporting one or the other hypothesis, that the relationship is curvilinear; people with too little structure or guidance as well as people with too much structure or guidance might be slowed in their decision making. It is absolutely true that some continuums have become so complicated as to be useless, but this is not the case across the board. It remains an empirical question whether a four- or five-level continuum (which most are) provides too much structure or guidance for quick and effective decision making or whether the JBR provides too little. At present, only competing anecdotes and experiences exist. Bostain claims that the new FLETC training has led to a “reduction of unnecessary hesitation by officers in determining which force option to employ in critical incidents.”12 Countering this, Ijames reports that in the course of reviewing more than 1,500 use-of-force incidents he has “never had a single case where an involved officer suggested the use-of-force model and related training was a hindrance to decision making and controlling resistance.”13 At a minimum, the profession needs some research into this serious, complex question before jettisoning decades of practice and experience.
Line officers’ ears perk up when proponents of the JBR lament what they call the “second-guessing” that they say officers “endure” following their split-second decisions in highly tense and volatile situations. This argument is made in the context of the overlapping discussions above about “totality of circumstances,” flexibility, and discretion. Incident review (or second-guessing, if one is trying to appeal to the line officer) is not going away, nor should it. Arguably, the officer has less ammunition under the JBR to support force decisions in the context of review. The flexibility and discretion that the officer is pleased to have on the street per JBR is now in the hands of a reviewing supervisor.14 The officer’s own view of what was objectively reasonable in the situation may or may not correspond with that of reviewing personnel up the chain of command. The officer in a JBR agency will not be able to point to a force continuum to show that the level of force used was either (1) prescribed by the model or (2) prescribed by the model in conjunction with subject factors, officer factors, and other factors.
JBR proponents argue that jurors in civil suits involving police use of force do not understand the nuances of continuums, and this confusion results in inappropriate awards to plaintiffs. The authors argue that (1) given the right expert, the jurors most certainly can understand the nuances of continuums and (2) it is better that we provide the jurors with some guidance as to the substance of reasonableness than leave them to their own intuitive definitions.
Peters and Brave suggest that “force continuums . . . confuse jurors and, in some cases, judges, about the appropriate legal force standard(s).”15 According to Joyner and Basile, “Upon seeing the ladder analogy of use-of-force options, citizens unfamiliar with law enforcement expect an officer to climb the ladder one rung at a time until the suspect complies. It is sometimes difficult to explain to the public the need to advance to the appropriate rung based on the suspect’s behavior.”16 Assertions such as this say little about the jury and much about the police practices expert and that expert’s inability to ensure the jury clearly understands how officers are trained to use force continuums and how the continuum provides officers with the basis upon which they make objectively reasonable resistance control decisions. In actual experience at trial, Steve Ijames has found that properly educated juries have no difficulty understanding force models. With help from a competent expert, the jurors can understand that the structure of the continuum in no way obligates officers to start at the bottom and advance one rung at a time until they reach the appropriate level of force needed to overcome the resistance; they can understand the factors that might cause an officer to deviate from the default linkages between subject resistance and levels of officer force.
In a use-of-force litigation case, the continuum—properly trained and applied—is an officers’ greatest asset for facilitating the jury’s understanding of force decisions. Without this asset–without this tool that conveys to jurors what “reasonable” means in the law enforcement world—the jurors are essentially left to their own definitions and standards, which may be far afield from those of our profession.
Bostain, Shults, and Peters and Brave all argue that linear models require (or imply) that officers must use the least amount of force rather than the reasonable amount of force.17 According to Bostain, the linear continuums “encourage the officer to try to find the minimal amount of force necessary to control the subject’s actions.”18 Shults claims that per the “continuum doctrine,” officers are “legally and morally bound . . . to use the least force theoretically possible in the least intrusive way for the shortest possible amount of time.”19 This is not so. There is no inherent link between the requirement to use minimal force and the continuum. It is up to the chief or sheriff to direct officers to use minimum force or reasonable force, unless applicable statutory or case law makes that decision for the chief. The DeKalb County, Georgia, Police Department defines “necessary force” as “the use of the minimum amount of force to achieve legitimate police objectives.”20 In contrast, the Saint Cloud, Minnesota, Police Department directs that officers “shall use the amount of force reasonably necessary to accomplish the intended objective.”21 Either of these directives could be linked to a force continuum. If a critic is opposed to minimum force in policy, then argue for a change to reasonable force. One does not need to bring down the continuum to achieve this objective.
Williams raised the concepts of escalation and de-escalation in his article criticizing linear continuums. Interesting to the authors, he (1) disparaged the notions of escalation and de-escalation and (2) conveyed they were inherently linked to the linear continuum. Per Williams, “While proponents say that continuums easily allow officers to instantly respond with higher levels of force, they also, by definition, require officers to instantly de-escalate whenever possible.”22 While the authors might quibble over the word “instantly,” they who represent the continuum camp plead guilty to the charge of promoting the concepts of escalation and de-escalation and hope that the JBR advocates other than Williams are training their officers to both escalate and de-escalate as the situation warrants.
In arguing in favor of the JBR and against continuums, Bostain protests that “there is no consensus on the definitions used in the various [continuum] models”— not a surprise given the U.S. model of policing.23 His claim that definitions (for instance, definitions of subject resistance levels such as passive resistance) are not universal is both true and wholly inconsequential. There is no need for universal definitions. Of course it is critically important for officers to understand the definitions set forth by their own departments, and this can be achieved through thoughtful policy writing and solid training. If an agency cannot promote this understanding on the part of its officers through policy and training, then it is facing issues that are much more serious than whether or not to maintain a continuum. This applies as well to the scary JBR argument that officers, like jurors, do not understand that they can start halfway up the continuum or jump levels (for instance, jump from level 3 to level 5). As Shults reports, “Police officers engaged in encounters with noncompliant offenders may feel that they are legally obligated to climb the use-of-force ladder.” 24 Again, if an agency’s officers cannot assimilate these concepts (for example, “you can start in the middle,” “you can jump levels”), the agency’s problems are severe and relate to issues of hiring and training, not to whether they should retain or eliminate the linear continuum.
Some in the JBR camp promote some sound ideas for training, report writing, and policy. Sometimes, however, they imply that these great ideas are inherently linked to the JBR and inconsistent with the continuum. Beware of these false linkages. Thus, for instance Bostain ends one of his articles in which he criticizes the linear continuum by describing the great hands-on, reality-based role-plays in which recruits participate during the new JBR FLETC training.25 He also highlights the increased emphasis FLETC now places on articulating facts rather than conclusions in writing response-to-resistance reports. Hands-on training and fact-based report writing are, of course, quite appropriate for all agencies, whether they are JBR or have a force continuum. Shults argues for force documentation that is “offender-centered”; the report should highlight the decisions that the subject made that required the officer to respond.26 Again, this is a viable recommendation that is equally applicable to the JBR and to continuum agencies.
The authors of this article have been dismayed that the claims of the JBR advocates have not undergone critical analysis. So the authors have attempted to do just that by listing every argument they have heard in favor of JBR and holding those claims up to scrutiny.
Proponents of JBR have argued the following:
- Continuums do not reflect the constitutional standard of reasonableness.
- Continuums are subjective and the “just be reasonable” standard is objective.
- Continuums do not allow forconsideration of the “totality of the circumstances.”
- The profession will be well served by the added flexibility that JBR provides to officers on the streets.
- The continuum is detrimental to quick decision making.
- Jurors cannot understand the nuances of continuums.
- Continuums are inherently linked to the “least amount of force” requirement.
- Continuums must be eliminated because common definitions do not exist for the levels of resistance and force.
The authors counter those arguments with the following:
- Continuums are designed to facilitate an officer’s understanding of what “reasonable” means and represent the appropriate middle ground between (1) the impossible-to-achieve precise definition and mechanical application of reasonableness and (2) the very imprecise, ambiguous direction to “just be reasonable.”
- The continuum provides substance to the concept of “reasonableness” and is thereby much less subjective than the JBR.
- Sound continuums highlight the importance of the totality of the circumstances and allow for needed flexibility based on subject factors, officer factors, and other factors.
- The added flexibility and discretion that the JBR provides to officers on the streets are counter to decades of reforms in the opposite direction—to ensure accountable, constitutional policing.
- There is no evidence to support the claim that the JBR produces quicker decisions and not even a claim that it produces higher quality decisions.
- A good expert can educate juries as to the nuances of the continuum, including the flexibility they accord officers and th fact that officers need not “climb the stairs one at a time.”
- Continuums are not inherently linked to a “least amount of force” requirement in policy and can, instead, fit well into a policy that calls for “reasonable force.”
- It is wholly inconsequential that agencies do not share the same definitions or labels for subject resistance and officer force.
The authors believe the continuum should absolutely be used in training to provide substance to the ambiguous term “reasonableness.” Further, if the continuum is how the department conveys to officers its standards for “reasonable,” then it should be reflected as well in written policy to ensure that the standard for reviewing officer force is consistent with the training officers received.
Bostain ends one of his commentaries with a key question about the continued utilization of use-of-force continuums. He asks, “Are we acting in the best interest of the officer?” He states, “If the answer is no, it is time to consider a change.”27 The authors would broaden the question to ask if, “By using a continuum, is leadership acting in the best interests of officers and the communities they serve?” On behalf of both groups, the authors would answer “yes.” The continuum serves both officers and communities. It provides officers with needed guidance to implement the reasonableness directive set forth in the Fourth Amendment and provides them with protection when their force decisions are reviewed by their agency. Use-of-force continuums serve communities by guiding police discretion in the use of this awesome power, preventing a return to the days of so-called “flexibility” in use-of-force decision making and riots. ■
1Joel F. Shults, “Contextual Compliance Tool Kit,” CalibrePress.com Street Survival Newsline, September 11, 2008, http://www.policeone.com/law-enforcement-newsletter/Calibre-Press-Newsline-9-11-08 (accessed November 2, 2011).
2John Bostain, “Use of Force: Are Continuums Still Necessary?” FLETC Journal 4, no. 2 (Fall 2006): 33.
3John G. Peters and Michael A. Brave, “Force Continuums: Are They Still Needed?” Police and Security News 22, no. 1 (January/February 2006): 2, http://www.ipicd.com/resources/forcecontinuums.pdf (accessed November 2, 2011).
4It is interesting that Graham is seen as adding such clarity in mid-2006 when, in fact, the decision was issued in 1989.
5Graham v. Conner, 490 U.S. 386 (1989).
6Bostain, “Use of Force: Are Continuums Still Necessary?,” 35.
7Tulsa County Sheriff’s Office, Policy § 6.02 Use of Force.
8Lorie Fridell, “Deadly Force Policy and Practice: The Forces of Change,” in To Protect Life: Readings on Police Accountability, ed. Candace McCoy (Washington, D.C.: Urban Institute Press, 2010), 29–51.
9In the context of this discussion about reining in discretion, it is interesting to note that the FDLE response-to-resistance matrix (recently discarded in the move to the JBR) was adopted in 1986 in response “to increasing binstances of citizens suing criminal justice agencies and officers for using excessive force.” FDLE Defense Tactics Student Workbook (2005), Module 5 Unit 1 Lesson 1, 6.
10Very much linked to this JBR argument that maximum officer flexibility/discretion is a good thing is the incredible assumption that all police officers will naturally “default” to some collective notion of reasonableness. The authors do not believe that all police personnel will naturally default to the same precise level of force in all situations; the (untrained) notions of reasonableness are impacted by experience, culture, and other factors. Therefore, we do not agree with the statement in a the document titled The Trouble with Training: Why the State of Florida Eliminated the Force Matrix that “we are probably spending too much time teaching officers what they intrinsically already know” (Roy Bedard, n.d.; see http://www.roybedard.com/2010/08/).
11Bostain, “Use of Force: Are Continuums Still Necessary?,” 33–37; and George T. Williams, “Force Continuums: A Liability to Law Enforcement?,” Perspectives, FBI Law Enforcement Bulletin (June 2002): 14–19.
12John Bostain, “Training without Force Continuums: Learn to Love the Law” CalibrePress.com Street Survival Newsline, March 19, 2009, http://www.policeone.com/law-enforcement-newsletter/Calibre-Press-Newsline-03-19-09#Story1 (accessed November 2, 2011).
13John Bostain and Steve Ijames, “Use of Force Continuums: An Essential Tool?” (debate, Police Use of Force: Less-Lethal Weapons and In-Custody Deaths, conference sponsored by the Institute for Law Enforcement Administration, Plano, Texas, September 29–October 1, 2008).
15Peters and Brave, “Force Continuums: Are They Still Needed?,” 1–5, http://www.ipicd.com/resources/forcecontinuums.pdf (accessed November 2, 2011).
16Charles Joyner and Chad Basile, “The Dynamic Resistance Response Model: A Modern Approach to the Use of Force,” FBI Law Enforcement Bulletin (September 2007): 17, http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2007-pdfs/sept07leb.pdf (accessed November 3, 2011).
17Bostain, “Use of Force: Are Continuums Still Necessary?,” 33–37; and John G. Peters and Michael A. Brave, “Force Continuums: Three Questions,” Chief’s Counsel, The Police Chief 73 (January 2006),http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=791&issue_id=12006 (accessed November 2, 2011).
18Bostain, “Use of Force: Are Continuums Still Necessary?,” 34.
19Shults, “Contextual Compliance Tool Kit.”
20DeKalb County, Georgia, Police Department, Policy 4–6, Use of Force.
21Saint Cloud, Minnesota Police Department, Policy 218, Use of Force.
22Williams, “Force Continuums,” 16.
23Bostain, “Use of Force: Are Continuums Still Necessary?,” 34; and while the Canadian approach—the adoption of a single model—might be preferable, it is very unlikely that a single model would be adopted in the United States in light of the country’s highly diverse law enforcement structure. That said, the authors expect that executives would give due consideration to a model that was supported by solid research.
24Shults, “Contextual Compliance Tool Kit.”
25Bostain, “Use of Force: Are Continuums Still Necessary?,” 33–37.
26Shults, “Contextual Compliance Tool Kit.”
27John Bostain, “Training without Force Continuums: Learn to Love the Law” CalibrePress.com Street Survival Newsline, March 19, 2009, http://www.policeone.com/law-enforcement-newsletter/Calibre-Press-Newsline-03-19-09#Story1 (accessed November 2, 2011).
Please cite as:
Lorie Fridell, Steve Ijames, and Michael Berkow, "Taking the Straw Man to the Ground: Arguments in Support of the Linear Use-of-Force Continuum," The Police Chief 78 (December 2011): 20–25.