Cutting Edge Training

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Police Civil Liability: Words Matter

by George on June 4, 2009 07:41

You're a conscientious cop who takes real pride in doing your job right.  Because this is the case, you might want to change how you talk about force after doing a good job on the street. 

All of your career, you have heard, been taught, and said the phrase, “use of force.”  You’ve read it in case law in the language of the courts.  Use of force is so synonymous with policing that no one thinks about the phrase—until you are the defendant in federal civil court wondering why in the world, after you did the job the way you were trained, are you being accused of misconduct?

Yes, you injured the suspect after responding to his behavior, but you responded to his resistance according to your training.  And you know your actions in overcoming his assault and attempts to flee were reasonable and well within the bounds of your agency policy.  Yet you are facing a trial in civil court as a defendant…what went wrong?

Actually, nothing really went “wrong.”  It’s the system.  The US Constitution requires the police, as government agents, to defend their actions against any person (citizen or not).  To meet this challenge, you must adequately address the "second half" of your enforcement activities.  This involves describing your actions accurately and in sufficient detail so that others who are not the police and who weren’t on-scene during the arrest can understand why you took the action you did.

The words you use matter.  A lot.  No kidding.

Let’s talk about the foundation of how you think about describing your job in a force incident.  Let’s consider two phrases:

1.    “The officer used force on the suspect.”

2.    “The officer responded with force to the suspect’s actions and behavior.” 

Is there a difference in the meaning between the two?  Is there one phrase that implies responsibility for the event and any outcome (injury to a suspect) to you as the arresting officer?

PHRASE ONE.  In the first phrase, the officer is the “actor using force.”  The officer is making the decision to hurt or shoot the suspect.  This phrasing reveals nothing about the suspect’s actions.  It plays into the media’s and Hollywood’s wildly inaccurate portrayal of the police (ever see a cop TV show or movie that looked anything like your real life job?).  This language puts the responsibility for the force employment solely on your shoulders.  The question is, where is the suspect and his/her behavior in this?

PHRASE TWO.  The second phrase is clearly demonstrating that the suspect is the “actor.”  If the suspect had not done “something,” there could be no need to “respond.”  The suspect is the cause of the event, not the officer.  While your response to his resistance resulted in his being injured, it was the suspect's behavior and actions creating the reasonable need for those injuries.

Even a casual understanding of constitutional and case law shows that officers may not simply “use force” on a suspect:

  • In Scott v. Harris, 127 S.Ct. 1769 (2007), the balancing test in any force evaluation of the police is “the likelihood of injury or death to the suspect balanced with the apparent threat of the suspect to the officer or others” as reasonably perceived by the officer.  
  • In Graham v. Connor, 109 S.Ct. 1865 (1989), officers are required to base their force decisions on “the totality of the circumstances known to the officer at the time.”  Just three factors cited by the court are “the severity of the crime at issue” (the crime you are responding to with force—generally resistance or assault—not necessarily the crime for which he’s being arrested), “the threat of the suspect,” and “the active resistance or attempts to flee.”  

The majority decisions in each of these cases extensively discusses the need for describing the suspect's behavior and threatening actions.  In each of these major, controlling US force cases, the focus is not on the officer, but on the suspect’s actions forcing the officer to respond. 

It’s time to change your language to protect yourself and your agency.  By describing the event as a “force response,” you use accurate phrasing to describe what you do.  It sets up the next step for your articulation and justification of your force response.  Consequently, your reporting of the force event will be more accurate in describing the offender's actions and behavior (both subtle and overt) that led you to reasonably perceive the suspect's resistance, threat, and/or attempts to flee.  This simple change--"responding with force"--benefits you, your partners and agency, your community, and the jury members who simply want to understand what happened during the incident.  By describing your specific response to each threatening or resistive action taken by the suspect, you are more likely to be rewarded with a fair judgment of your actions. 

If you follow this suggestion, your language will probably begin sounding like:

  • “I responded to his (actions and behavior) by...”
  • “I was involved in a force response incident created by the Defendant/Plaintiff's behavior, when I observed him...”
  • “I responded to his resistance by (which ever reasonable response options you employed to overcome his resistance or attempts to flee).”

Be safe.  Wear your vest every day, every shift.  In your reports, tell us why you responded to the suspect’s behavior and actions.