cross the United States, police attorneys, police administrators, trainers, expert witnesses, and, in some cases, judges are asking hard questions about use-of-force continuums. Have force continuums outlived their usefulness? Should they be included in force policies? Do they inappropriately reduce officer discretion and increase liability exposure for the government entities, the administrators, and the officers who are often defendants in force litigation?
Have Force Continuums Outlived Their Usefulness?
Force continuums were reportedly first developed by trainers in the 1960s as a way to train officers in use of force. Since that time, some 50 continuums have been developed; many are complex, hard to understand, and ambiguous, while others are deceptively simple and straightforward. Some people argue that force continuums are still necessary, but others argue that continuums are as outdated as city call boxes.
Many police attorneys, administrators, trainers, and experts have argued persuasively that the original need for force continuums (guidance) has been reduced because the judicial system has now provided adequate guidance in force standards. The U.S. Supreme Court defined the Fourth Amendment's objective reasonableness force standard in Tennessee v. Garner and in Graham v. Connor.1 Garner gutted the common-law fleeing-felon rule, while Graham held that an officer's use of force, when seizing a free person, will be analyzed under the Fourth Amendment's objective reasonableness standard. Other constitutional standards may apply to the use of force against inmates of jails and prisons. Most police force continuums do not address the use of force against inmates.
Should Use-of-Force Policies Include Force Continuums?
Some say that including a force continuum in an agency's use-of-force policy is like mixing oil with water. "Fourth Amendment reasonableness does not require that an officer use the least intrusive means," says attorney Robert Thomas, who managed the Graham v. Connor case as it went to the U.S. Supreme Court. Graham holds that all claims of excessive force in making an arrest or stop will be analyzed under the Fourth Amendment and will be judged under its objective reasonableness standard. Since this is the federal constitutional legal standard that governs an officer's use of force, unless state law is more restrictive, this is the only standard that need appear in an agency's use-of-force policy regarding seizures of free people. Force continuums often give the perception that officers must use minimum force, but that is not the constitutional standard.
The actual law on the degree of allowable force is quite broad and very much in favor of officers. Legal standards, such as those articulated in Graham, take numerous factors into account that continuums do not. For example, many continuums depict only the relationship between the subject's current behavior ("actively resisting," for example) and the officer's force response. This is a self-defense-type force standard. In contrast, the law takes in and allows for much more.
"The Fourth Amendment addresses 'misuse of power,' not the accidental effects of otherwise lawful conduct."2 Under the Fourth Amendment objective reasonableness standard, the appropriateness of an officer's decision to use force will be based upon the totality of circumstances as reasonably perceived by the officer in the moment the force was used. Totality of circumstances includes, but is not limited to, the resistance of the violator; the tense, uncertain, and rapidly evolving nature of the situation; and the violator's attempt to flee or evade seizure. Most force continuums are restrictive, in that they allow police to consider relatively few factors when determining the appropriateness of the officer's force.
When an excessive force or misconduct claim is made, what is the standard by which the officer will be judged? Clearly, it should be the constitutional legal standard and any more restrictive applicable state law standard. Nevertheless, some judges, juries, and police administrators erroneously substitute the continuum standard for the constitutional legal standard or commingle the two standards when analyzing a use-of-force event. When the continuum standard is used, critics of the police often have a field day, because even though an officer's use of force was legally permissible, the officer may have violated the often more restrictive continuum standard. Administratively, officers may face discipline when internal investigators apply the continuum force standard instead of the constitutional legal standard. Therefore, many attorneys, trainers, experts, administrators, and officers argue that the agency force policy (as applied to seizures of free persons) should be no more restrictive than the constitutional standard articulated in Graham.
According to Captain Greg Meyer of the Los Angeles Police Academy, who coordinates the LAPD Use of Force Best Practices Work Group for Chief William J. Bratton, "Ours is not part of policy but rather has been used as a training aid. We are currently considering whether to do away with it, and teach to Graham's objective reasonableness standard." Attorney Thomas adds, "The continuum approach invites a laddered, stair-stepped ranking of officer force applications that is, for the most part, not based in law or logic." Many argue that the reaction of the officer does not follow a continuum but rather the ability and equipment available at the moment to respond reasonably. The issue, therefore, is in understanding the reaction of the officer to levels of resistance with consideration to what tools are available to the officer and the violator.
In short, those who advocate using only the constitutional legal standard in force policy argue that such policy needs to include only the language of the Graham standard: An officer's use of force on a free person shall be objectively reasonable based upon the totality of the circumstances known or perceived by him or her at the time force was used.
Do Force Continuums Increase Liability Exposure?
People who want to abolish any kind of measured response (which is what force continuums are designed to achieve) are sometimes looking for a way to cut their potential losses in litigation. Others argue that the abolition of continuums by police agencies is not going to change anything. Experts will still talk about continuums and there is no way to prevent it. Some see a disturbing tendency to look at use-of-force cases in black-and-white terms of whether or not the incident or harm could have been avoided or reduced. According to longtime police legal advisor and trainer Randy Means, "The federal constitutional standard does not require an inquiry into whether the force or incident could have been avoided or minimized if the officer had somehow done better or differently. It only requires that the officer's actions be reasonable under then-prevailing circumstances."
California police defense attorney Missy O'Linn says, "Escalation of force, whether you use words or a diagram of some sort, will be presented to a jury in a diagram type of form by one side or the other, and I like the opportunity to show the jury how the officer was taught." Recently, the California Commission on Peace Officer Standards and Training immersed itself in the continuum debate by questioning whether continuums should be a part of agency policy.
The U.S. Department of Justice has weighed in, too. Its Civil Rights Division urges agencies adopt a progressive force continuum and train all officers in it. Consent decrees and technical letters of assistance sometimes require agencies to do so. According to the Department of Justice, a force continuum should include all types of force used by an agency, including firearms, pepper spray, batons, and canines.
Of course, where agencies do not use continuums in the training of officers, force instructors would need to be trained in and have a good understanding of the legal limits of force so they can teach them. Many people see a compromise: first, remove the force continuum language from written force policies, replacing it with the applicable legal standards; second, use the force continuum only as a training aid to help officers understand force application; and, third, clearly document (and be prepared to explain to a judge and jury) that the continuum has limited usefulness and is merely a graphical demonstrative aid that does not create, or elevate, the applicable legal standards of care.
What's in your force policy? ■
