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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.