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Why ‘Force Continuums’ Should be Abandoned

by George on October 27, 2010 08:33

As a law enforcement officer, you have a complex and very demanding profession.  The job of enforcing the law grows in depth and breadth every year, requiring more of officers in their knowledge, reasoning, and judgment.  Courts, legislatures, and changing public expectations create new challenges, new learning curves, and new obstacles for officers to adapt to and develop strategies to effectively meet these changes.

There are few areas of an officer’s duties that require more discernment and restraint than in responding with force during an arrest.  The ability to read a situation, understand the broad range of human conflict from the subtle nuances of suspect pre-attack indicators to the unmistakable and extremely dire situation of a close-range gunfight, and then react quickly enough to make a difference is a product of training and experience.  It is also a result of understanding the law and policy clearly enough to be free to use those guidelines effortlessly and without doubt. 

“Force continuums” were adopted as an attempt to quickly bridge the knowledge gap between the new civilian recruit and the functioning police academy graduate.  They were seen as a training shortcut, and easy method of training officers how to effectively select the force reasonable to the situation.  Terms like “escalation of force” and “de-escalation” became commonly employed in explaining how and why an officer might respond to a suspect’s threat.

Plaintiffs and their police experts soon found the continuums to be of great value to their arguments that the officer either failed to meet standards, or failed to employ proper conduct because the officer failed to de-escalate early enough.  They often point to the suspect’s behavior at the moment prior to the officer’s force response, fitting it into a category of “suspect actions” requiring a “lower force option,” while disregarding the totality of the facts known to the officer at the time, and upon which the officer based his or her actions.  This confuses jurors, who look at this mechanical, very rigid appearing matrix, and can clearly see that the force employed for “that” suspect behavior was “not permitted.”  Problematically, it also confuses officers, sometimes creating stammering explanations that “the continuum doesn’t really mean what it says.”

The trouble is, a force continuum, in every version and variation, does not deliver for law enforcement—or the public—as advertised.  Every continuum often fails officers in their articulation of the circumstances in which they responded with force.  And for each time an officer’s actions were justified through the matrix of the continuum, there is another where the evaluation of the reasonable response by an officer was subjectively or mistakenly found to have failed the force continuum’s "requirements." 

Force continuums, in policy and in training, should be abandoned.  A continuum is simply an attempt to place a mechanical explanation on a situation that defies stultified, rigid application in typically dynamic, fluid situations.  Additionally, officers require a different type of problem-solving strategy to survive and meet the challenges of the street, something that enhances and develops their ability to quickly reason through and articulate their choices based upon the law.  A static matrix where simplified suspect behaviors are stair-stepped into categories of force fails officers in a tense, uncertain, and rapidly evolving incident, and underestimates their ability to discern an emerging situation, recognize the force reasonable to overcome the resistance, respond reasonably, and then to articulate the basis of their force response.

STANDARDS IN FORCE

Unique in all of human history, individual officers are responsible for not only documenting the circumstances surrounding any police force response, but also in being required to specifically articulate those actions based on an “objective reasonableness standard.”  This standard was codified by the US Supreme Court stated in Graham v. Connor (1989).  The Graham court understood that an officer’s force response is not capable of mechanical definition, but must be articulated based on the totality of the circumstances known to the officer at the time. It was reiterated by the Supreme Court in Scott v. Harris (2007). Various non-specific guidelines have been suggested by the court, including, but not limited to, the severity of the crime committed by the suspect at issue (not necessarily the crime for which the offender is being arrested, but the crime to which the officer is immediately responding), the immediate threat of the suspect to the officer and others (the suspect is bigger, stronger, armed, apparently trained, and/or the officer’s fatigue and injury status was a factor), and the active resistance of the offender to resist arrest or attempt to flee (this is the level of intensity and how desperately the suspect was fighting with the officer).

All of this is mixed together to arrive at a “reasonable officer standard.”  This standard is generally defined as, “Would another officer, with like or similar training and experience, given the same circumstances, respond with the same force or use similar judgment.”  It requires the officer to justify his or her actions based on their training, based on their experience, and to a standard to which another officer would recognize and react.  It does not require the “best” solution to the problem facing the officer.  Instead; it simply requires the officer meet a wide range of objectively reasonable conduct.

Every force response is based only upon the totality of the facts known to the officer at the time, without the clarity of 20/20 hindsight.  The evaluation must take into account considerations for split-second decisions made in tense, uncertain, and rapidly evolving circumstances.  Therefore, an officer may be mistaken about the facts of a case, but still be an objectively reasonable officer.

The Force Continuum is a mechanical model for the application of police force that was specifically rejected by the Scott and Graham courts and subsequent federal circuit court rulings.  Force Continuums were developed pre-Graham as a method to explain to officers how and when to respond with force to a suspect’s threat.  It seemed simple at the time, and was apparently easier to apply than the old Glick standard.  The trouble is, times have passed it by, but like computer SPAM, we just can’t seem to get rid of it.

THE “FORCE CONTINUUM”

Essentially, every force continuum contains three components:  Force levels or options, labels of suspect resistance, and “escalation/de-escalation” requirements.  Only one of these components really has any validity in the real world where an officer’s force response is measured against Graham’s standards of evaluation.

Force levels or options:  Force levels are simply those actions by officers that physically affect a subject’s ability and/or willingness to resist or flee.  Each force option, at a given duration and effort, will result in an expected level of injury or pain.  For example, OC, or pepper spray generally causes acute pain, temporary blinding, and breathing difficulty for a limited period of time, but is without the likelihood of lasting or permanent injury.  A wrist hold or limb restraint is generally a “pain compliance” effort, relying upon pain to gain cooperation, yet it also can cause long-term or even permanent injury to the wrist, elbow, or arm—usually resulting from the intensity of a suspect’s resistance.  A Taser will safely create compliance through disruption of the skeletal musculature’s electrical messages.  It is non-lethal, although secondary injuries from falling are common enough.  An impact weapon, or baton, properly delivered, is expected to cause injury, ranging from a contusion to a bone fracture.  Deadly force, of course, is force likely to cause death or serious physical injury. 

Problems with “force options.”  A significant problem with the Force Continuum is that areas of police conduct are included under the label of “force.”  “Officer Presence” and “Oral Commands” are listed as “the lowest levels of force.”  Some continuums are now improperly including the pointing a firearm at an offender by the officer within the force options.  What’s the problem?  An officer showing up on the scene, speaking to or yelling at a subject, and even pointing a firearm at a subject is not force.  Force is an intentional action by an officer that physically affects the well-being or movement of a person.  The officer who commands a subject to stop, turn around, take his hands out of his pockets, and to step to the patrol car has created a “seizure” under the 4th Amendment the moment the subject complied with the commands—but has not employed “force.”

But if there is no force employed in these acts, why, Plaintiffs ask, are they included on a “force continuum?”  This confusion creates problems for both officers and jurors.  For example, most continuums list “Officer Presence” and “Voice Commands” as part of their “force options.”  I have routinely asked in a training event, “Is officer presence a force option?”  Officers regularly--and mistakenly--answer, “Yes.”  When asked what permitted that officer to “use force” absent any suspect resistance or failure to obey the officer’s commands, these officers often respond with blank stares.  Some astute officer will sometimes come to the officer’s rescue, saying, “There was no use of force.  Presence is not a ‘use of force.’”  This misunderstanding of what is and is not “force” allows the Plaintiff’s attorney and his/her expert to state that it is the agency’s policy or training doctrine listing “officer presence” as a force option in the continuum, and to ask the officer, his or her police witnesses, and his experts, “Why now, when this officer is now in ‘trouble,’ is the policy's force continuum’s ‘force options’ not really force?”

Lawyer games?  You bet.  Slimy?  Well, that is a matter of opinion--the Plaintiffs' lawyers would say it is not, and that it is law enforcement's adoption of this model that creates the opening for them.  In any case, it is permitted in court.  But legal games are another unpleasant part of the job you signed up for.  But when some jurors believe that officers routinely lie under oath because of deliberate distortion and indoctrination by Hollywood, television, and the media, it doesn’t take much imagination on the juror’s part to look at the “force continuum,” read the heading, “force options,” and conclude the officer or police defending these actions are spinning it to their own ends.  While it isn’t true and the officers testifying are simply telling the truth, Force Continuums present this opportunity for skilled attorneys to create the appearance of impropriety or convenient definitions that are fluid according to the needs of the defendant officer(s).

Suspect resistance:  Rather than take the excellent and ultimately practical formulas in Scott and Graham and apply them to the question of when and how to respond with force, the force continuum wrongly attempts to “simplify” the concept of suspect resistance into distinct, definable categories.  For example, a suspect who is presently simply pulling his hands away from the arresting officer, and is not presently attempting to harm the officer is exhibiting “Defensive Resistance,” and therefore may be subject to the corresponding force option on the chart.  However, a suspect who is presently physically assaulting the officer is exhibiting “Active Aggression,” permitting the corresponding “higher level of force” to be employed.

Problems with “Suspect resistance” labels:  The problem is that neither of these “categories of resistance” provide a clue as to the totality of the facts known to the officer at the time.  This labeling excludes many factors that must be considered by the officer and any post-incident evaluation of the officer’s force response.  Distinct, sterile labels cannot describe the officer’s state-of-mind—something which is crucial to any objective and comprehensive evaluation.  That is why the Supreme Court required officers to describe the totality of the facts known to the officer at the time, as well as what the suspect was doing at the time of the force response.  Both are vital in the officer’s articulation of a force response.  Labels as offered by a force continuum are not inclusive of the facts and circumstances, and are often grossly misleading.

More accurate labels might be “violent,” “resisting,” “eggressive resistance,” and “combative.”  None of these labels would permit or call for a specific force response without an explanation by the officer of all of the facts known to the officer at the time of the force response.  When the officer describes the actual behavior of the suspect combined with all of the facts known at the time, it now becomes clearly reasonable that the officer responded with empty hand limb restraints, OC, Conducted Energy Weapons, impact weapons, and/or deadly force.  It is only through such articulation that reasonableness may be determined.

Escalation and de-escalation requirements:  Escalation of force theory simply requires that officers begin with the “lowest-levels” of force (non- or least injurious) and work their way up to something that effectively restrains or overcomes the suspect’s actions or resistance (more injurious).  This requires officers to “experiment” with force.  In one instance, a city’s expert witness, arguing for the termination of the officer during an arbitration hearing, testified that even if the suspect is capable of causing serious bodily injury or death, the officer is still required to use less-lethal force if she can.  There must be an escalation of force, “reacting to what is unsuccessful.  If this level of force is not successful, move to the next one.”

Problems with “escalation/de-escalation”:  This is a gross misunderstanding and clearly not called for in law. It is a clear misrepresentation of what is required of officers struggling to take a suspect into custody.  In the middle of a fight with an extremely motivated, unsearched individual, an armed police officer cannot afford (or be expected) to experiment with force as called for by a continuum.  This would amount to playing a dangerous game with the suspect—the officer attempting to use the lowest level possible while the offender is resorting to whatever means he intends to employ in order to escape.  Instead, Scott permits officers to respond with objectively reasonable force (force option plus duration) to overcome the reasonably perceived threat or resistance of the suspect (from the officer’s reasonable perception based on the totality of the facts and circumstances she knew at the time).

Of the three components making up the Force Continuum, only force options are meaningful in the real world  recognized by the courts.

TEACHING OFFICERS TO REASONABLY RESPOND WITH FORCE

Many police trainers react with despair when the subject of abandoning the Force Continuum is broached.  “How in the world can I teach officers to respond with force?” is often their question.

The use of the Force Continuum, a mechanical standard, is a lazy way of teaching officers when to respond with force.  It attempts to simply take a response off the shelf and plug it into a category of assault or resistance.  All very neat and tidy, but the threatening safety problems officers are forced to respond to in the real world are not.  Instead, officers must be given permission to evaluate the situation and then reasonably respond.

This is done by first teaching them the law and their policy, and then holding them accountable for justifying their actions while in training.  Then they are taught about force options and the specific expected injuries as a result of duration and intensity of that force response.  After giving examples and possible solutions to common force problems, students or recruits are then put into various problems during defensive tactics and officer safety training.  They are then permitted to find their own force solutions, and then must justify the force they employed.  By using the law (Scott, Graham, Garner, and state law) and agency policy as the basis of justifying their force response, the officer learns the bounds of force conduct vis-à-vis suspect resistance and assault.

Is it more difficult?  Yes--that's why the continuums were adopted in the first place.  It requires the trainer to be conversant (rather than just “knowledgeable”) with the laws of force.  It requires the trainer to articulate the standard of evaluation as required by the reasonable officer standard per Scott.  It requires the trainer to be able to discern the totality of the circumstances as a basis of that force response, and not just the present circumstances apparent to the officer at the time.  It also starts the process of requiring the officer to begin justifying his or her actions per the law, within the law. 

As a result of this greater effort, officers are able to discern the complexity of their force responses.  The capability for nuance is created, and better articulation of their decision-making is possible.  There are no downsides to this change in creating an officer who has deeper knowledge and understanding of the permissions and the limits to the force response.

CONCLUSION

The force continuum, as stated earlier, is exactly the type of mechanistic application and evaluation of force  rejected by Scott and Graham.  Essentially it calls for the officer to label what the suspect is doing at this moment, and experiment with matching the lowest level of force to that labeled suspect behavior.  If that force option is not successful, the officer is to escalate or progress to the next force option, experimenting with it until the officer finally progresses to a force level that is successful.  This is unsafe in the real world, and the US Supreme Court was wise enough to repeatedly recognize that experimenting with force is foolhardy when facing the real-world threats officers are sworn to respond to. 

The force continuum is a misleading representation that is not valid for any aspect of law enforcement.  Adopted in the early 1980s by plaintiffs experts, law enforcement naively adopted it as a means of attempting to explain, and then train their officers in the reasonable force response.  Since the early 90's, it is slowly but steadily being recognized, and as advocated by leading police policy authorities, trainers, and expert witnesses, that the force continuum has no value in teaching, policy, or explanation of an officer’s actions.  It only serves to mislead a jury and the public in what the officer “should have done” according some expert who claims authority in such matters, without taking the officer’s state of mind into account.

An appreciation for the realistic effects and likely outcomes of various methods of restraint and force must be apprehended by any evaluator for a fair evaluation of any officer’s efforts.  Responding with force, articulating force, and evaluating the police force response is best served through the law as it is written and interpreted by the courts.  There is a reason that after all these years, the force continuum has not been accepted by the courts and written into law.  It does not meet the standards by which officers are judged.  The sooner law enforcement recognizes this, and removes this failed experiment from training and policy, the better officers, their agencies, and the public they serve will be.