By David J. Spotts, Esq., Chief of Police, Mechanicsburg, Pennsylvania, Police Department
he basic rule of law regarding the use of force is that any use of force must be objectively reasonable under the totality of the circumstances in which it is employed.1 This has not changed. However, what the courts are willing to consider when determining reasonableness appears to be expanding.2 With this in mind, police agencies must be cognizant of what factors to consider when using, documenting, and investigating force. Assuming officers should or will receive the benefit of the doubt in a use-of-force encounter is no longer a sound strategy, if it ever was. The spectrum of circumstances that could impact a use-of-force incident are far too numerous for one article. Hence, this column reviews some general factors to help frame a review of agencies’ current practices.
The first step is to understand the nature of the contact officers have with individuals.
Is the contact
- a mere encounter,
- a reasonable suspicion to believe that criminal activity is afoot or the person is armed, or
- probable cause to make an arrest or otherwise take the person into legal custody?
If it is a mere encounter, then the person has every right to terminate the contact and leave the officer’s presence; an officer cannot use force to prevent this.
If it is reasonable suspicion, then the officer can detain the person for a short period of time to investigate the matter.
If the officer has probable cause, then reasonable objective force can be used to make the arrest. Also, remember that contacts are generally not static in nature and that what started as an encounter may develop quickly into reasonable suspicion or probable cause. Understanding the nature of the contact at each point in the entirety of that encounter will help to guide decisions about the reasonable use of force.
If officers do make a decision to use force, they need to understand why the force is being employed. Generally, force can be used to
- affect an arrest,
- prevent escape,
- defend oneself or others,
- restrain individuals for their own safety, or
- protect property.
Take notice that “contempt of cop” and “street justice” are not on the list. As much as officers do not like to be disrespected, it is not a crime for someone to be rude. Showing contempt to an officer is not grounds to justify the use of force. Also remember that in life—just like policing—respect is earned by your actions. If officers want people to think of them as the good guys, then they need to act like the good guys. Officers are a part of the criminal justice system, not all of it. The courts decide a guilty individual’s punishment.
Even when using force is appropriate, officers still need to consider the specific facts of the encounter. The prime factors are
- the seriousness of the offense,
- the immediacy of the threat, and
- the level of resistance.3
For example, it is clear that the courts will review passive resistance in a much different context than active resistance.4 The underlying reasons that initiate the use of force will affect the options available to officers, so it is important to understand why the force is being used.5
Next to consider is the characteristics and actions of the subject as well as any special knowledge the officer might have. Characteristics and actions to consider include
- physical condition;
- weapons displayed or in the immediate area;
- the number of subjects and the number of officers on the scene;
- diminished capacity (for example, impairment caused by drugs or alcohol or medical, physical, or psychological impairment);
- verbally abusive;
- making threats;
- clenching fists;
- refusing to show hands;
- assuming a fighting stance; and
- targeting or blank stares.
Specialized knowledge can include
- a known history of violence, weapons, or resistance;
- prior knowledge of fighting skills;
- drug or alcohol abuse;
- mental or other cognitive impairment; and
- prior knowledge of crimes at the location.
The above factors are only samples of what should be considered. Agencies may want to make available a checklist that includes all appropriate factors to help officers capture these data.
Notice that officer safety is not on the list. This is because the actions of the violator in noncompliance or resistance justify the level and amount of force used. Using force for officer safety will be unjustified without being able to show the underlying characteristics of the situation and the actions of the violator combined with verifiable special knowledge the officer possesses. These articulable facts help convey to the judge or the jury why force was used in a reasonably objective manner in the interest of officer safety. Do not take the shortcut of using officer safety in an attempt to validate your actions. There is no definitive rule that controls the level of force permitted in any given situation. It is case specific and fact specific and requires documentation.6
Assume that a decision to use force was made during an encounter. An officer started with an empty-hand hold, then an open-hand strike or several, and finally used an electronic control device.
It would be inadvisable to consider this encounter as one application of the use of force. Each and every use of force should be treated as a separate use-of-force application.7 It should include separate documentation that explains why additional force was used after the initial application of force was employed. The review of the use of force should treat each and every application of force as requiring independent justification. What occurred before can be used as a foundation. But, as in the example above, officers must be able to articulate and document the change in circumstances that led them to move from a hold to a strike and then from a strike to an electronic control device. The changes may be subtle, but they must be present.
Likewise, continuing to employ a force option that is not successful in de-escalating the encounter should require explanation to why that particular force option continued to be used. Courts are more open to considering not just whether a specific option was employed but what other options should have been reasonably available and how many times a particular option was employed.8 This is a somewhat commonsense approach to analyzing the use of force. If an officer hits someone several times or sprays or stuns subjects to no avail, then the officer should select another force option. As in the example above, striking someone one, two, or three times is important and does make a difference. If Plan A does not work, go to Plan B. Overreliance on one particular option could be problematic. Instead, a toolbox approach is recommended where there are multiple options for the use of force and the choices can best be calibrated to the actual situation at hand. While courts have not definitively ruled that multiple force options are required for law enforcement, it seems clear that they are moving in that direction.
From a risk management perspective, an agency’s toolbox options should include other options besides just hands-on treatment and firearms. As well as common tools such as oleoresin capsicum (OC) spray or electronic control devices, some critical components to consider include
- interpersonal communication skills to gain voluntary compliance;
- de-escalation and disengagement techniques; and
- tactical retreat (for example, for use with a known actor for a nonviolent crime who does not pose a continuing danger).
While a police officer is not required to retreat, cease, or delay efforts to make an immediate, lawful arrest, this may be the best course of action and, thus, a legitimate approach to consider. Having multiple options provides the best opportunity to reasonably employ force. Choices are good. This holds true for use-of-force situations.
Finally, the investigation into the use of force must be real and not a rubber-stamped or cursory review. The appropriate factors, such as those discussed above, need to be documented in the report. The reviewer needs to be aware of them and determine through independent analysis if the use of force was or was not within policy. Many times, the problem is not that the use of force was inappropriate but that the documentation or supervisory review of the situation was inadequate. A legitimate use of force may appear unreasonable because of poor documentation or review. An example of this is not documenting adverse environmental conditions such as an icy area that caused a strike targeting the thigh to hit the knee because an officer or a subject slipped during the use of force. Also, shortcut descriptors such as officer safety or stating that the subject acted aggressively are not adequate and should not be tolerated. Likewise, an officer who repeatedly documents that subjects were inadvertently hit, bumped, and so forth, or who defaults to force for passive resistance should be a cause for concern.
The bottom line is that most people will make decisions about the use of force based on a review of the documentation, not the actual event. To maximize agencies’ efficiency in use-of-force situations, there must be consistency among performance, policy, training, supervision, investigation, and discipline. If officers do not include all appropriate factors, defending their actions will be more difficult. Even if they remember and testify to facts or actions not in the original reports, they leave an open door for the other side to attack credibility, competency, or both. Reviewers should look at use-of-force reports with documentation of the details in mind. If adequate details are not present, additional work needs to be done. Whether this results in additional reporting of legitimate facts or discipline of an officer for unreasonable use of force is irrelevant. Disclosing the truth is the goal. The result is better policing. ♦
|David J. Spotts, Esq., is the chief of police of the Mechanicsburg, Pennsylvania, Police Department and has been in law enforcement for more than 35 years. He became an attorney in 1993 and is an advocate for the police profession. Currently, he is a member of the Executive Board of the IACP’s Legal Officers Section.|
1Graham v. Conner, 490 U.S. 386 (1989).
2Phillips v. Community Insurance Corporation, 2012 WL 1449675 (7th Cir. 2012).
3Graham, 490 U.S. 386.
4Smith v. Ball State University Board of Trustees, 295 F.3d 763 (7th Cir. 2002).
5Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010).
6Scott v. Harris, 550 U.S. 372 (2007).
7Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011).
8Phillips, 2012 WL 1449675.
Please cite as:
David J. Spotts, "Reviewing Use-of-Force Practices," Chief‘s Counsel, The Police Chief 79 (August 2012): 12&150;13.