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“Approved Techniques” Versus Reasonable Force

by George on March 17, 2011 04:56

All of the latest studies on force response by police scream the fact that officers respond with force sparingly.  Over 97% of the time in an arrest, suspect behavior requires no force response by the arresting officer.  When an offender forces the situation, the majority of the time it is a low-level resistance involving muscular effort by everyone—a lot of negotiating by the suspect, and repeated commands by the officer(s).  When an officer is required by the offender to resort to force to control resistance or defend against assault, how should it be judged by the agency?

The evaluation of any force response should be fairly straight forward—the courts have provided very workable and, frankly, very sympathetic formulas for determining the reasonableness of an officer’s force employment.  Many agencies, however, muddy the waters in their test for reasonableness by using the invented standard of whether or not the officer employed “approved techniques.”   This unnecessary component of determining whether or not an officer achieved proper conduct creates liability for the officer and agency where there was none.

Background

A lot of money and time is spent training officers in defensive tactics and suspect control methods.  Whether the agency is forced to use the system endorsed by its particular state, or is free to choose the system to be presented, every agency settles upon a system or philosophy in which their officers are trained.  In many cases, the agency chooses a vendor to “certify” the agency’s instructional staff. 

Unfortunately, in many instances, these vendors dictate to the agency what the agency’s standards shall be.  They use the fear of the “Double-L of Law Enforcement ” (“litigation” and “liability”) to effectively coerce the agency into continuing to use their training system (translated:  transfer your agency's training budget to the vendor).  Anyone who has ever heard any of the following phrases has experienced this type of blackmail:

  • “If you don’t use our techniques as we train you, you are on your own when you get sued…”
  • “If your instructors do not re-certify regularly, we will de-certify them as instructors…”
  • “If you use our techniques, we will testify for you.  If you don’t, we cannot assist you…”
  • “The use of any techniques other than the ones we teach, or if employed differently than we require, will create liability.”

As a result, some agencies go so far as to create a policy or practice of requiring each officer to employ only those “approved-techniques” in which the agency trained them.  Generally turning a blind eye to what their officers actually do on a day-to-day basis, these agencies reserve the right to judge whether or not the technique the officer used was proper.  This artificial standard is based not only on the circumstances at the time, but also is also judged on whether or not it was applied in the middle of a dangerous fight as it was trained and in an "approved" manner. 

In these agencies, when a subject is injured by an officer using a “non-approved technique or method,” discipline is handed down—an officer who was simply attempting to get the job done reasonably has his/her career damaged.  Lawyers become involved and settlements are made.  And then every cop goes back to what cops do:  arresting bad guys, improvising tactically, and getting by as best they can until someone gets hurt the next time, with continuing findings of policy violations and all of the familiar aftermath. 

These policy violations and resulting liability are not a product of violating the law or a person’s rights.  Instead, this creation of liability is an artificial policy construct dictated by vendors or misguided policy makers that state, “Officers may perform only ‘trained and approved techniques and tactics.’”  Training has been officially deemed by the agency’s admin to be thoroughly comprehensive and sufficient for all circumstances.  The consequence of this is that failure to use the expected techniques and methods is a violation of policy, and while the force may have been reasonable and lawful, liability was created nevertheless by the written standard of performing only those techniques and tactics as trained. 

Important Questions

It is important that a discussion take place within law enforcement over who determines what a force response can look like, and how that force will be judged.  

  • Is an officer’s force response to be judged on the techniques he or she employs in the field?
  • Is it true that if the officer fails to employ a technique as the vendor trained it, or utilizes an alternative, the officer and agency is liable for that use of force?
  • What if an officer uses an “unapproved” method?  Is there automatic liability?


Evaluating Police Force in the U.S.

In discussing any aspect of using force, we must explore the basis of force, how it is evaluated, and where true liability exists.  The basic framework of any lawful force response by police, since 1983, rests in the Fourth Amendment of the US Constitution.  In US v. Place, 462 US 696 (1983), the court provided a balancing test to assist in determining the reasonableness of a police intrusion during a seizure. 

This was expanded in 2007 by the US Supreme Court in Scott v. Harris, 127 S.Ct. 1769 (2007).  Officers are required to weigh the likelihood of injury or death to the suspect balanced against the threat of the suspect as reasonably perceived by the officer at the time of the force response.  In Graham v. Connor, 490 U. S. 386 (1989) the US Supreme Court ruled that all police use of force is governed by the objective reasonableness doctrine, and is based upon a reasonable officer standard.  The only consideration when evaluating any police force response is, if in the totality of the circumstances known to the officer at the time of the force employment, would another officer with like or similar training and experience, given like or similar circumstance, have done the same thing or have made similar judgments? 

There is no mention of specific techniques or using “trained techniques” in any of these force decisions.  The question is simply asked, “Was the officer’s response objectively reasonable based on what he or she knew at the time?”  If yes, there is no liability.  If no, the plaintiff deserves to be compensated for their unreasonably received injury.

Most state laws require the same standard of reasonableness.  For the balance, these states require officers to use “necessary” force.  This is often defined as “force for which no reasonable alternative apparently existed and was reasonable to the situation.  Even with this more restrictive state law, there is no requirement to adhere to a specific technical standard.  

In both jurisdictions (state and federal), it is up to the officer to articulate the circumstances he or she perceived and responded to.  Even though the officer acted properly in the field, there can still be huge liability if that officer fails to fully articulate and document his or her reasonable beliefs.  There are no adverse judgments on the books stating the officer failed to employ some defensive tactics technique properly.  There are, however, myriad cases where an officer failed to prove his or her reasonable conduct in light of the totality of the circumstances known to him at the time.  This is the sole source of liability to officers and their agencies.  

The law does not evaluate the effectiveness of any particular force method, unless it has a bearing on the circumstances.  A shooting will be judged on whether or not a bullet hitting the plaintiff was justified by the circumstances, not on which stance or brand or style of weapon was used.  If deadly force is justified by the circumstances, it can be resolved by shooting, stabbing, choking, driving over, or even dropping a safe from the twentieth floor on the head of the person creating that imminent threat.  Deadly force is deadly force, and how you get there doesn’t matter.  In a case where limb manipulations were used with resulting injuries, no one in the jury at the end of trial is holding up a sign giving a score regarding how well the technique was performed (Juror #1, 8.8; Juror #2, 9.1; the French Juror, 3.1…).  Instead, the juror will simply be asked, was the actual force with which the officer responded reasonable given the circumstances?  Their verdict will generally reflect the defendant officer’s ability to articulate his justification of his actions, combined with the documentation of the evidence.  

According to the law, there is plainly no liability to using or not using any particular technique or method your officer has been trained to use as long as it was reasonable for the circumstances known to the officer at the time.

Responding With an "Unapproved" or Improvised Alternative 

The liability engendered by using an alternative technique is created only when the agency promulgates a policy requiring only “approved techniques” be employed by their officers.  Rather than limiting liability, this type of policy instead actually increases the possible exposure to the agency. 

The reality of any type of force response skills system requiring officers to “properly” apply only its techniques and no other is that no training is capable of answering all of the threats and problems an officer faces in the real world of policing.  Officers are constantly forced by circumstance presented to them by suspects to improvise, and training must reflect this need to problem-solve.  Relying only upon approved techniques cannot meet these needs (hence the need for improvisation) while meeting policy requirements.  In effect, a policy of this type forces officers to violate their policies in order to meet their immediate real-world defense and suspect control needs.

If the agency requires a technique to be used, it expects to see that method employed.  This is not only a dramatic misunderstanding of the purpose of training, but a belief that fighting is solved in an efficient and orderly manner with no input from the suspect.  The reality is that all training is merely a suggested method of resolution, and cannot be expected to be taken as a whole from the training floor and successfully placed wholesale into a combatives situation where the suspect is not a willing participant in the arrest.  Any situation where the suspect does not cooperate will almost universally result in any particular technique failing.  As long as an officer employs force reasonably, or employs an alternative method safely, there is no inherent liability, even if a subject is injured—unless the agency creates that liability by requiring adherence to a rigid technical system by its policy or practice. 

Rather than looking at the method the officer employed as being “wrong,” it would be more useful and would follow present legal guidelines to evaluate the context of the circumstances presenting themselves to the officer at that moment.  It is not a question of which hand was cuffed first and how, but, rather, the inquiry should be, “Regardless of the subject’s injuries, if any, were the officer’s actions and force responses justified by the reasonable perception by the officer of the suspect’s behavior and actions in light of the circumstances known to the officer at the time?”  

Vendors Can Create Liability for Your Agency--If You Let Them

It cannot be argued that vendors add their expertise to law enforcement's ability to do their jobs well and within the standards of proper conduct.  Someone must teach and train officers in the various and myriad skill and knowledge domains required today to safely and competently navigate through the requirements of law, policy, and expectations of professional behavior.  Those who make their living by training or supplying other services and products to law enforcement are generally upstanding individuals who are attempting to benefit both officers and the citizens they serve.  The problem begins when individuals devise a method of ensuring their income that is less-than-ethical.  Making a living by providing a service is one thing.  Coercion through unfounded fear is another

Many vendors who provide certifying systems to law enforcement state that failing to use their approved techniques will result in their not being able to “defend” a particular officer’s actions.  They say that only those incidents comporting with what the vendor declares to be in-line with its program can be defended.  Should the vendor’s technique fail because it was not properly executed (and for those vendors, any failure in the street is always attributed to “officer error”), or the officer simply improvises because he cannot remember how to do some complicated technique (which applies to every officer in a fight), or chooses to do something he made up on the spot, the vendor will not “defend” the agency in its litigation.  

At least one vendor has stated that they would make themselves available to plaintiffs as experts should their client agency’s officers fail to properly use their techniques.  The impression provided to the interested observer is that the officer and agency will be left hanging in court to twist in the wind when the vendor abandons them.  Command staff and officers often truly believe, and many vendors promote the belief, that to prevent being successfully sued, you must have the vendor on your side. 

Nothing is further from the truth.  Your officers will either act reasonably and prove their proper conduct, thus avoiding civil liability, or they will be liable to the plaintiff for their actions.  Their liability will not rest in the quality or type of technique they choose unless the agency creates that liability through policy.  It will, instead, hinge on the duration and type of force based on the circumstances known to them at the time.  Having a vendor’s representative as an expert witness may or may not be beneficial, but, in and of itself, will rarely, if ever, make or break your case.  

Conclusion

The question of liability in any force response is well-settled:  an officer may respond with objectively reasonable force based on the totality of the circumstances known to the officer at the time of the force response.  This evaluation method stands regardless of the method or force technique an officer chooses or is forced to employ.  Force cannot be excessive or improper based simply upon any technique, nor can increased liability result as a result of not properly employing a defensive tactics technique when the circumstances permit its attempt.  In fact, there is no liability created simply because a vendor states a particular technique should have been used instead of the method actually employed by the officer.  

Agencies can create a climate where liability can easily result by publishing an ill-considered policy of requiring officers to employ a particular technique as trained.  This creates a situation where failure to use an “approved technique” becomes a policy violation.  This creates tort liability in state courts.  It also results in disciplinary actions even in those situations where an officer must improvise due to system failures that did not address that particular circumstance.  This discipline will be capitalized upon by plaintiffs in federal court when the fact that the officer was disciplined will be used as leverage in settlement conferences to unnecessarily increase the value of the case.

Vendors should never be allowed to dictate policy to an agency.  Vendors have a vested interest in maintaining the agency as a client.  Beware of thinly veiled threats of de-certifying instructors should they fail to satisfy the vendor’s requirements, failing to testify should officers use non-trained techniques or methods of arrest and defense that are not approved, and of the creation of extra liability should you and your officers not adhere to their program.  This is simply a form of blackmail in order to secure an income stream for the vendor, and is unethical.  Vendors and their programs should support an agency’s policy, and while consultants may assist with policy development, it is always the policy-maker’s responsibility to provide a reasonable policy that protects all involved parties (the citizens, officers, and jurisdiction), not the vendor.  

“Approved techniques” versus reasonable force response.  Hands down, agencies should opt for policies requiring their officers to act reasonably in all circumstances.  Training in force skill domains should be looked at as guidelines for problem-solving rather than as hard and fast techniques by which officers must abide.  The phrase, “approved technique” should be stricken from the vocabulary of all police administrators, policies, regulations, and police trainers (as well as vendors).  While training standardizes behavior, officers must have the flexibility to respond to suspect resistance and violent assault, as well as changing trends in the street without having to fear inadvertent policy violations as a result of their surviving an incident.  

In the real world of law enforcement, there is no such thing as an approved technique.  Your policy and practice should require reasonable (and, if required, necessary) force responses from your officers.  Forget what your vendors tell you.  If you believe your officers are qualified to instruct, don’t send them to re-certification unless you believe they can use the update—your agency actually certifies that someone is qualified to instruct every time one of your officers formally instructs an officer.  If you believe your officer was reasonable in his force response, regardless of what technique he used, then reward him with commendations. 

Until police administrators take back their policy responsibilities, they will be controlled by the false fear of increased litigation and liability.  The Double-L’s are real in many areas of police work, but are mainly manufactured when it comes to anything approaching an “approved technique.  A “required technique ” is not to law enforcement’s benefit.  A hundred arrests of resisting suspects will require one-hundred different solutions.  Flexibility within a reasonable force response is the most realistic and valuable expectation and administrator can have.  The best and most practical standard for evaluating your officers’ force responses lies in Scott and Graham.  It is the law of the land for a reason, and it is a doggone good standard by which to evaluate your officer’s actions.

Force is 'Outcome-Based'

by Tom on October 20, 2010 07:31

During a “routine” response to a call for service, Officer Johnson detains a subject for further investigation.  As the questioning progresses, the individual becomes more and more evasive and contradictory.  Eventually, the officer establishes that he has probable cause to arrest the suspect.  During the arrest process, the suspect resists by first struggling, and then thrashing about and trying to hit the officer with his arms in a bid to get away.  With no backup officer present and the situation getting more and more out of control, Officer Johnson feels he needs to get the man down on the ground to gain some control over the situation.  He tries a "takedown technique" several times, but the suspect defeats every effort.  The situation is getting a bit desperate.  Johnson wraps his arms around the suspect, driving him to the ground.  The subject lands on his elbow, shattering it, suffering what will be a lifelong injury.  Officer Johnson immediately radios for an EMS response and a supervisor to respond.  In his narrative arrest report, Officer Johnson does a good job of articulating the factors in his force decision-making, as well as his actions post-force to get the suspect treatment.

Officer Johnson’s takedown, while objectively reasonable under the circumstances, is not considered by his agency to be an “approved” technique.  He is deemed to have been "out of policy," and therefore his force was "excessive."  He is disciplined.  Officer Johnson appeals the suspension, but loses because his agency points out in arbitration that the agency force policy requires only approved techniques be employed in the arrest of a resisting suspect.  Agency civil attorneys, as a result of the disciplinary findings, eventually negotiate a six-figure settlement to the plaintiff's tort claim.  Officer Johnson and his fellow officers become even more hesitant and uncertain about responding with force as a result of the administration's actions--morale problems deepen. 

This scenario, played out in too many jurisdictions, begs a huge question:  How can it be that an officer can “reasonably” respond with force but still be “out of policy” by employing a technique that is “not approved," thereby creating the situation where the force was "negligent"?  Many agencies have bought into a concept of “correct” or “approved” techniques—generally to their officers’ and the agency’s detriment.  Some agencies break this down further into varying categories, “approved,” “approved but not completed,” and “not-approved but reasonable.”  And, of course, “not approved.”  This drive to create a system of utilizing only approved techniques does not comport with federal or even state laws regarding officer force response.  In fact, it creates an artificial liability, both to the agency and the officer.  This is a concept that should reviewed, critiqued, and finally abandoned by law enforcement.

FORCE RESPONSE AND THE POLICE

That officers respond with force to suspect resistance and assault is an activity that is not questioned except by the most radical citizens in our country.  As a matter of law, the police force response is governed by the 4th Amendment of the US Constitution as interpreted by the US Supreme Court in Scott v. Harris (2007) and Graham v. Connor (1989).  In fact, the matter of what constitutes “excessive force” is well settled and is defined in Black’s Law Dictionary as “force which is not justified under the circumstance known to the officer at the time.”  Again, the matter of judging how the officer responded with force, the duration and level of the force, as well as the injuries inflicted versus the reasonably perceived threat is clearly spelled out.  Force is, in a phrase, “outcome-based.”

Nowhere in Scott (or in Graham) is there mention of “proper” or “approved” technique.  Nowhere is there a discussion of what the officer might have done differently that might have been less intrusive.  Instead, the inherent wisdom of Scott tells law enforcement that if the officer’s force response was objectively reasonable when the balancing test of "the likelihood of injury to the suspect is balanced with the reasonable perception of threat to the officer or others" is met, based upon the totality of the circumstances known at the time.  Graham asks us to look at the totality of the facts as well, including (but not limited to) the severity of the crime at issue, the immediate threat of the suspect, and the active resistance to arrest or attempt to escape.  If the officer's actions in response to a reasonably perceived threat is reasonable (NOT perfect, but reasonable), then the force response cannot be excessive.  The Court, in these and subsequent cases, fundamentally defines how an officer’s force response should be evaluated. 

REASONABLE FORCE IS NOT ABOUT “TECHNIQUES”

As already noted, there are no requirements in any case law to use techniques “correctly.”  To require officers to utilize any technique denies a fundamental truth about real world force.  In the real world, a police force response is not a logical series of moves that automatically results in overcoming resistance.  Instead, a fight is defined by Cutting Edge Training as “a series of mistakes corrected as you make them.”©  Every fight is series of rapidly presented and ever changing problems to be solved.  Every physical struggle is dynamic and unpredictable.

Techniques, however, require time to develop and unfold.  Each "move" within a technique is a vital "linchpin"--if any move fails or is missing, the entire "technique" fails.  This means that as the officer is in the process of applying the series of moves comprising the technique against a real-world resisting suspect, the situation can completely change, rendering the need for that specific technique moot.  Generally, techniques require the cooperation of the suspect to be successful because of this—officers just cannot react quickly enough to the situational changes to make the technique work.  If, in the middle of the “second move” in any technique the subject moves his body, the technique fails.  The officer either improvises—and risks being out of policy—or regroups and tries to figure out another technique to apply as the suspect is in the midst of violently taking advantage of the first technique’s failure.  The idea that officers should use only “proper technique” puts officers’ safety in serious jeopardy.  It just isn’t practical in the real world.  Techniques nearly always fail given the slightest resistance by the suspect. 

Techniques are also complicated and difficult to remember--especially so in the heat of combat.  This is because each is designed to be applied to one specific attack or situation.  The unique situation calling for a "rear wrist lock" is not the same as an "outside twist lock," which is not the same as that calling for a "front goose neck" which is not the same as a any other situation calling for a specific, unique response.  The reality is that we can teach officers 3, 30, or even 300 techniques specific attacks.  How does one remember even 30 techniques that must be perfectly performed when a suspect is attempting to injure the officer?

Additionally, most of these "techniques" were not designed to "control" another human being--they were originally designed to injure, break, and kill a soldier on a battlefield, and were only adapted to civilian use (and, decades later, to police training) as a method of training in the martial arts without injury.   This creates contextual problems for any application of technique.  Taking anything out of context generally renders that object or concept null and void.  For instance, attempting to take a technique that is designed to permanently disable a limb by breaking bones or dislocating joints, and then modifying it as a "pain compliance" method fails for several reasons. 

  • Ancient military application would call for the enemy warrior to first be injured in some manner, through a strike by a weapon or punch or kick.  This gives the warrior time to complete the series of moves needed for the "technique" and disable the limb.  The warrior would quickly follow up with a killing blow to dispatch the enemy before moving on to engage others enemy soldiers.
  • Diluting a method of breaking or killing into something that it was never designed to accomplish has huge unintended consequences.  Officers are trained to employ techniques on suspects who are uninjured and physically fresh.  The suspect is free of psychological or physical impediments, enabling him/her to resist the series of movements required for a successful technique.
  • The now-hybrid technique intended to "control" an individual permits the suspect the ability to unexpectedly escape--often easily--is completely ineffective for its intended purposes, unless the suspect is too injured or too fatigued to continue resisting. 

Further, this adaptation of a technique from "breaking" an arm to "controlling" an arm through pain requires the suspect's cooperation.  The suspect must honor the pain without going beyond the limits of the body's structure, or the arm breaks.  Whenever this occurs, the officer is predictably accused of employing excessive force. 

This concept of teaching "techniques" that are now "approved" fails any test of reality:

  • The defense and control situations that officers face are literally infinite, and the limited number of techniques of any system cannot address all of the variations officer face.
  • How is any officer with an average of 80 hours of training can instantly recognize any situation and then instantly select the correct response and then instantly respond?  They cannot.  It takes time to respond, and then time to apply the technique, causing most techniques to fail.
  • Techniques are designed to teach "principles"--not to be employed "as-is" on a resisting suspect.
  • Techniques routinely--almost universally--fail when the subject upon which they are being used resists in any manner.

Reasonable force is, instead, about recognizing that human beings in uniform realistically respond to the chaos of real-world assaults and resistance with levels and durations of force that are justified by the situation.  For example, given a suspect who is threatening to “fight” with an officer who has just arrested him, one officer might attempt a limb restraint.  Another might try a takedown, while others might spray him with OC or use a TASER to subdue him.  All are reasonable, although some are less tactically sound than others.  The only caveat for evaluating force is reasonableness based on the totality of the facts and circumstances known to the officer at the time. 

Real force against a living human being who is motivated to resist being taken into custody and who may elect to injure or kill the arresting officer(s) is definitely not a static event.  Its inherent dynamism requires constant improvisation on the part of the arresting officer who has scant fractions of seconds to react to protect himself and/or impede the suspect's efforts.  Techniques, approved or not, fail any test in the real world where they are supposed to be applied. It is a false standard that cannot stand any type of "reality test."

CONCLUSION

There is a large segment of law enforcement, encouraged by vendors supplying training (who have a financial interest in remaining the "approved training source"), that has bought into the concept of evaluating force based on “proper” or “approved” technique.  This is a concept--especially in agency policy and court testimony--that should be abandoned because:

  • Requiring an officer to respond only with an “approved” technique is not realistic.  The human condition and the limits of police training cannot respond to infinite number of attacks and resistance they face with specific counters and counters-to-counters and counters-to-counters-to-counters, ad infinitum
  • Officers are routinely forced to improvise in their force response efforts.  This need for improvisation routinely surfaces in almost every defensive tactics situation where a suspect resists.  This means that officers cannot realistically use “approved techniques in even a majority of arrests.
  • Civil liability is increased in situations where officers achieve reasonable conduct but violate artificial policy restraints.

To be successful, techniques require a perfect application of force in a perfect situation under perfect circumstances.  If any factor fails in its perfection, the technique fails and the officer is forced to improvise.  Instead, officers and their force response should be judged by the objectively reasonable standard described in Scott and Graham.  This standard is based on the totality of the circumstances known to the officer at the time, rather than on a technical standard based on the concept of an ideal application of force that regularly fail in the real world.  Through this standard, every interested party benefits.  Force in America by police is judged from its outcome.  The officer is more fairly judged in his or her work product, the agency does not manufacture liability where none exists, and the suspect, protected by the reasonableness requirements of the law, remains the "architect of his own fate" and responsible for requiring the officer to respond with force.