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Warning Subjects Before Responding With Force Tools?

by George on December 15, 2010 14:45

As an officer, you are given the challenging responsibility of employing force against citizens and others in the name of the people of your jurisdiction.  The US Constitution and federal laws require the “objectively reasonable” seizure of a person by any agent of the government in the enforcement of laws and the keeping of the peace.  State constitutions and laws require essentially the same reasonableness in police efforts in interacting with citizens.  How officers conduct themselves in arrest situations where force is compelled by the suspect’s behavior is a subject of great importance.  The issue of providing a reasonable warning to the subject prior to any force response, with exceptions, is part of that reasonableness.

The federal courts in recent years have enthusiastically taken up this topic and are enforcing the need to warn if it is reasonable to do so.  Providing a threatening, violent, and/or armed individual with a warning prior to responding with a force tool can decrease the likelihood of injury or death to the subject.  It is also critical to being able to defend that force response in later inquiries about the reasonableness of your actions and decision-making.

Law enforcement agency instructors, as a whole, have become very successful in training their officers to warn subjects of an impending force response, deadly or otherwise.  In fact, they have become so successful that their officers tend to attempt to warn subjects even when it is dangerous—and therefore, unnecessary—to do so.  Recognizing the difference and being able to explain your reasoning to your administration, the Prosecutor, and to a jury (civil or criminal)—why you either gave the warning or did not—may have a huge outcome on the outcome of post-force response proceedings.  The concept of warning prior to employing any force tool—non-lethal, less-lethal, and deadly force—seems to be widely misunderstood by many police trainers, and, subsequently, their officers.

This misunderstanding is seen in the form of a blanket requirement by some instructors, and even in some agency policies, to universally require a warning prior to every force response, regardless of the circumstance confronting an officer.  One agency has even taken this beyond the extreme:  recently, a firearms instructor proudly proclaimed that his agency had initiated the “ultimate liability prevention program” by requiring officers to continuously warn the suspect as they were shooting (“Police!  Drop your weapon…bang!...Get on…bang…the ground!…bang…Drop your…bang…weapon…”).  He was less enthusiastic and a more than a bit offended when, instead of wholehearted praise and welcome, his pronouncement that all agencies should adopt this liability prevention practice was met with just a few of the following arguments:

  • This is a dangerous practice.  Some shooting incidents require a warning, whereas others do not.  There are situations where immediately shooting a suspect without warning may be the safest method of legally resolving the incident without further loss of life or injury.  This would include hostage-situations, armed robberies in-progress, assaults-with-a-deadly-weapon in-progress, etc. 
  • Universal argument?  If this is a universal requirement, will a SWAT marksman be required to warn an imminent Threat before taking a surgical shot? 
  • This is likely to lead to a decrease of hits, more rounds expended per shooting, with corresponding officer injuries or death, as well as increased civil liability.  If, for argument, the national average of police bullets hitting suspects is 30%, is it likely that shouting warnings while shooting at an armed suspect who is shooting or about to shoot at an officer is going to lead to an increase in the rate of hits, the same hit rate, or fewer hits on threat?  Requiring an officer to shoot and hit a suspect while shouting at the suspect is more likely to decrease the ability of the officer to hit the suspect who needs to be shot to prevent injury to the officer and/or others. 
  • How is a suspect supposed to hear what the officer is saying?  Gunfire is loud, especially when it is directed at the individual who is supposed to be hearing these shouted commands.  If shouting while firing is just for the witnesses, how does that satisfy the spirit of the need to warn the suspect?  Additionally, the attentional load of the suspect is likely high as well, and it is unlikely that any attention whatsoever will be delegated to listening to the officer shouting while firing. 
  • This is likely to lead to more liability rather than less.  This policy requires officers to shout the warning as they are shooting.  It is a policy intended to protect the suspect and gain their compliance more quickly, thereby reducing the number of rounds they are hit with, and lessening the likelihood of multiple serious injuries.  Because the policy is in place to protect the subject, it creates a duty that is owed to the offender.  Failing to perform that duty creates a negligence issue to be solved through tort litigation.  This forces a question:  Is an officer who is in reasonable fear of imminent or immediate danger of death or serious bodily injury likely to think of: A) policy requirements requiring him/her to simultaneously shoot and shout warnings, or, B) shooting and hitting the Threat until the suspect ceases to be a threat to the officer’s life?  At this point, the officer who reacts to the threat and is so alarmed and frightened by the suspect’s threat to the officer’s life and either couldn’t or didn’t think about yelling while shooting is now subject to: A) administrative liability and is disciplined for a policy violation, and/or B) subject to civil liability in a state negligence tort action for policy violations, and/or C) an increased perception by a federal civil jury that the officer did not comply with training and policy, creating a tipping point in their verdict against the officer for shooting the subject.

Creating requirements that might work in a perfect world with perfectly aware officers who are perfectly in tune with the situation is foolish.  Officers tend to be average human beings who react in a variety of ways to the act of someone attempting to murder them.  Laws, policies, and training on warnings must reflect the reality officers work in.  This includes a wide spectrum of events where the possibility of harm varies as well from little to extreme.

All forms of force tools require at least some type of warning, if feasible, prior to employing them.  This includes OC spray, Tasers and other electronic weapons, impact weapons (including kinetic munitions), police service dogs, and, of course, firearms.  It is, however, the “if feasible” part that seems to be the issue.  What does the feasibility of a warning actually mean?

When is There a Requirement to Warn?

There is a definite need to warn subjects if time and circumstance permit prior to employing police force tools.  Warning a subject, when it is feasible, is both humane and may preclude the need to respond with force.  The following are a few examples of the language of one of the most restrictive (in terms of police actions) federal circuits (the 9th Circuit) on the subject of the need to warn an offender prior to responding with force:

  • “Here, it was feasible to give a warning that the use of force was imminent if Bryan did not comply.”  (Bryan v. McPherson, 590 F. 3d 767, Court of Appeals, 9th Circuit 2009). 
  • “We do not hold, however, that warnings are required whenever less than deadly force is employed.  Rather, we simply determine that such warnings should be given, when feasible, if the use of force may result in serious injury, and that the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test.  In the present case, the desirability and feasibility of a warning are obvious” (Deorle v. Rutherford, 272 F. 3d 1272, Court of Appeals, 9th Circuit 2001).

The US Supreme Court in Tennessee v. Garner, 471 U.S. 1; 105 S. Ct. 1694 (1985), when addressing the issue of shooting a fleeing suspect, stated: “Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

The common link in each of these cases is the phrase, “if feasible.”  “Feasible” is defined as “capable of being done with the means at hand and circumstances as they are” (http://wordnet.princeton.edu/). 

The 10th Circuit explained that "feasible" and "practicable" are fundamentally synonymous:  “Since Congress did not define or otherwise explain the meaning of the facially ambiguous phrase "…practicable" within the statute, we assume Congress intended the words to be given their ordinary meaning, which we may discover through the use of dictionaries.  ‘Practicable is...that which is performable, feasible, [or] possible...’ Black's Law Dictionary 1172 (6th ed.1991); see also Webster's Ninth New Collegiate Dictionary 923 (defining ‘practicable’ as that which is ‘possible to practice or perform: feasible’)” (Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249, 10th Circuit, 1998).

Therefore, officers must warn prior to responding with force to the offender’s behavior when the officer believes it is reasonable and the situation safely permits a warning given the totality of the circumstances known to the officer at the time.  Whether or not an event was rapidly evolving in circumstances that are tense, threatening, and/or out of control will determine if the officer was able to provide a warning.

The research into the “attentional load” of a human being definitively demonstrates that we have only so much ability to focus, and that all attention is serial in nature.  When presented with multiple attention requirements, humans are able to focus on each issue in turn rather than being globally aware of all of the issues at once.  When responding to an imminent threat, an officer who is required to fire and shout warnings must minimally concentrate individually and serially on the threatening actions of the offender, tracking the suspect’s target area, the complicated act of shooting (and hitting the imminent Threat), shouting warnings, avoiding being shot, realizing the subject is falling and no longer a threat—or remains a threat, the presence of unarmed civilians who may be near the line of fire, other officers who may be in the line of fire, other officers who may be firing past the officer, etc.

Each component requiring focus affects up attentional capacity, and, like a computer’s RAM, once it is filled, there is no more room for more information.  Each component can only be separately and consecutively focused upon if the officer can afford to pay attention to that specific detail in the midst of a life-or-death response to someone attempting to murder him.  Those specific areas of focus most related to surviving will be given priority to the exclusion of other “nice to have” information--attentional capacity decreases as the perception of threat increases.  Attentional resources will be devoted only to those skills and areas that are necessary at this moment to survive.  The mere thought of warning a subject who is now an imminent threat of violence, serious bodily injury, and/or death may be well beyond the capability of a particular officer in a particular situation at that particular time.

This time requirement also demands the likelihood of the force tool effectively stopping the threatening behavior in time to prevent harm:

  • OC spray:  The spray must be delivered from the canister to the subject’s face and mucous membranes.  There is a delay from the time it hits the offender until the maximum effect of the substance is achieved.  The effectiveness of OC spray varies widely, however, and is affected by the mental state of the subject (people who are mentally ill, under the influence of various stimulants or hallucinogens, or in a rage often are lightly affected, or demonstrate none of the expected effects).  Its effectiveness and “stopping power” cannot be predicted. 
  • Taser:  The officer’s trigger finger must press the trigger, the probes must be expelled, and both probes must hit the subject to complete an electrical circuit with a sufficient spread to create neuromuscular disruption.  The effectiveness of Tasers are well-known.  However, misses with one of the two probes are common enough that it must be factored into the consideration of whether or not the subject can safely be warned or not given the time available to the officer.  Additionally, there are many cases where the mentally ill and those who are under the influence of certain drugs seem to be partially or wholly immune to the effects of the Taser energy. 
  • Hand-held impact weapon (baton):  While the baton can be a very effective force tool, the commonly taught “Green-Yellow-Red Zone” targeting method is particularly ineffective (it is actually a product liability strategy rather than an attempt to satisfy either legal or officer safety requirements).  Because the impact weapon is employed properly as a means of defense and control of an aggressive, violent subject, it must be used to stop and disable the violent subject by targeting the bony surfaces of the body to create maximum pain.  Because the only effective targets are bony surfaces of the body, there is a possibility of a strike breaking a bone.  However, people who are mentally ill, under the influence of various stimulants or hallucinogens, or in a rage often exhibit a level of tolerance rendering them immune from pain--including that of broken bones.
  • Kinetic munitions:  Delivered from a less-lethal shotgun or a 37mm delivery system, this force options fires a diverse assortment of rounds.  Best known is the 12 gauge fabric covered bag commonly filled with shot at low velocity in order to deliver a kinetic blow at a safer distance from the suspect.  Foam rounds from the 37mm weapon are extremely effective as well.  Its impact is similar to a well delivered baton strike.  Its success depends on either of the following results:  1) the suspect believes he has been shot by a firearm, and believing this, thinks that people who are shot are supposed to fall down, so he falls;  2) the suspect tires of being struck with a number of kinetic munition projectiles, and complies with orders.  However, people who are mentally ill, under the influence of various stimulants or hallucinogens, or in a rage often absorb tremendous numbers of projectiles with little immediate effect (with resulting spectacular bruising that is later used to dazzle and horrify civil jurors).
  • Firearms:  The ability to stop any particular human being with a bullet, or a number of bullets, is completely unpredictable.  Absent a bullet strike through the brain or spine, the human body can absorb an unbelievable number of rounds and continue to function in a threatening manner until succumbing to organ failure and/or exsanguinations some time later.  While many individuals are stopped after being shot once (or by simply being shot at), others continue to be a threat until they have been hit numerous times.  Simply being shot is not a predictor of compliance or overcoming resistance.  People who have been hit with multiple “fatal” rounds have continued in their assaults and have seriously injured and murdered several people before succumbing to their wounds (e.g., the April 11, 1986 FBI Miami shootout).  The bullet must be fired, penetrate the suspect’s vital structures, and either cause the offender to psychologically give up, or create a physiological failure of the body to continue.  This takes time that the situation (determined by the suspect) must give to the officer.

This reality—the time it takes to observe and orient to the threat, decide to respond with reasonable force, deliver the force tool, followed by the time it takes for the offender to either realize the danger to his health and well-being and stop his threatening action out of self-preservation, or for the tool to overwhelm the subject physically and cause the behavior to cease, added to the time for the officer to perceive whether or not that particular force response was successful or not—requires a sufficient length of time be available to the officer before the perceived harm can occur, and partly determines whether or not a warning may be feasible.

Distance Equals Time, and Affects the Ability to Warn

Distance and time are components of each other in tactical doctrine.  Time considerations are often a function of how much distance is involved and the rate of movement of the involved-parties (time = distance/speed).  It stands to reason that the closer you are to the Threat, the less time you have to react.

Reaction-response time is built into this requirement to warn.  This involves the officer having the time to give a command, which, in turn, requires the offender to hear the command, process the required action, and respond to the command.  This then requires the officer to have the time to be able to perceive and orient to whether or not there is a change in the suspect’s actions or level of compliance, and to then act on the offender’s actions in time to prevent or respond to the Threat.  This takes time and is not in any way instantaneous. 

If you have a choice, recalling the Universal Tactical Doctrine Principle© of “Optimize distance from the Threat,” every contact would ideally be from as far away from an offender as possible while still being able to conduct the business at hand.  Every day contacts require enough distance to obtain information, conduct an investigation, exchange paperwork, etc.  This calls for you to be a step or two from the apparently unarmed, apparently cooperative suspect, giving you at least some time to react to a sudden assault.  As threat factors increase (apparently under-the-influence, apparently mentally ill, hostile, threatening, violent, prior extreme violence, possibly armed, verified armed, etc.), the greater distance is needed for a safer response.  As the distance between you and the Threat increases, the likelihood (and practicability) of the need to warn prior to a force response also increases.

In the real-world of policing, officers must often place themselves between civilian innocents and aggressing suspects at distances they, themselves, would admit were unsafe but feel is necessary for the protection of others.  Since suspects always control the speed, evolution, and location of a call, you may have no choice but to get closer in proximity than you would otherwise choose.  This will affect the time in which you have to react to sudden assault, as well as the time you have to warn the subject prior to responding with force.

In this case, given the threat level of the offender as well as the proximity of the event, the need to warn is dependent upon the offender’s behavior.  If the situation is static and a plan is in place to reasonably compel compliance through force, and it can be safely accomplished, give a warning.  If the situation is dynamic, is threatening to become violent, or violence is imminent, and the officer is in proximity to the suspect, a warning is less likely to be feasible, and is therefore less likely to be required.

Safety Factors in Providing a Warning

The safety of the officer and others may also be a factor in whether or not a warning is required.  As a dynamic, rapidly evolving, and/or highly threatening event unfolds, a warning may no longer be feasible.  Just a few examples where a warning is not necessary might be:

  • An offender suddenly reaches down to the floorboard of his vehicle as you belatedly see a handgun. 
  • A suspect makes a grabbing, pulling motion from his waistband.
  • An offender is in the midst of an armed robbery using some type of deadly weapon. 
  • An offender with a knife or stabbing instrument is charging or lunging at you.
  • An armed, apparently violent subject is about to enter/exit a doorway leading to an area where unarmed civilians are likely to be present.
  • An apparently unarmed suspect charges you.
  • The suspect is initiating or is in the midst of a criminal, violent assault.

If the officer believes that she or another individual is in imminent or actual danger of assault, serious physical injury, or death, a warning is likely not required before responding with force.

Additionally, if a warning is likely to create the ability of a suspect to develop or initiate a countermeasure, it is unlikely that a warning is required.  For example, an officer who is about to go hands-on with a resistive subject is not likely going to provide that individual with a warning, giving up all hope of surprise.  This will simply turn what may have been a simple takedown into a brawl with a higher likelihood of injuries to both the officer and the suspect.  Likewise, a violent suspect who is standing near the open door from which he just emerged may simply step inside upon being warned and close the door, preventing the officer from tasing him, delaying and complicating apprehension efforts.

Provide a Warning, If Feasible, Regardless of the Suspect’s Condition

Some officers in the past, faced with a mentally ill individual who is in crisis, or a suspect who is under-the-influence, have reasoned that the subject is not only not complying with commands, but is apparently unable to understand or comprehend anything, negating the need to warn.  This is a flawed reasoning that will create no end of problems in post-force proceedings.

Regardless of your perception of whether or not an individual comprehend the warning, either because of mental disability, mental capacity, their state of sobriety, or apparent language barriers, a warning, if feasible, should be given.  In the case of a language barrier, a uniformed police officer shouting commands while pointing a police weapon at a person is a universal signal to stop whatever behavior that person is presently doing.  Giving a warning if the suspect’s behavior and time permits helps the jury understand that you are attempting to resolve the incident without injuring the subject.

Articulating Your Reasoning

Whether or not you warn an offender prior to responding with a force tool, you will be required to justify your actions, or lack of actions.  Properly acting but failing to sufficiently articulate what you did and why it was reasonable is a common problem in police cases where the officers are found liable for their force conduct.  Everything you do or do not do must be accounted for in your reporting of the incident.  While the tricks that criminal defense and plaintiffs’ attorneys play for the jury (“If it was so important, why didn’t you include it in your initial report?”) are often just that, tricks that are easily seen through by any rational juror, your reality is that there are key components to every force incident that must be addressed in your reporting and testimony that explain your “state of mind.”  All force by police is evaluated on your understanding of the totality of the circumstances—20/20 hindsight is not permitted.  All factors in this evaluation are based on what you knew then, not what is known following the force incident.  Failing to address in your report the facts you knew at the time creates a very difficult defense in subsequent inquiries.

If the circumstances created by the offender forced you into proximity to the suspect—even when admittedly dangerously close—explain why you were forced to take that position.  Your reasoning may include that others were endangered by the suspect’s actions.  If the suspect then forces you to respond with force without the ability to provide a warning, it will be up to you to articulate the need to be in that position and as close to the threat as you were.

Until now, officers have not universally been trained to address the subject of warning as a requirement in the reporting of facts known to them at the time.  The increasing focus of the courts on the topic of warnings by police prior to a force tool being employed demands that the prudent officer include it in the initial report of the incident.

  • If a warning was given, specifically document that in either your report and/or interview.  Provide a direct or approximate quote of your commands and warning(s). 
  • If a warning was not provided prior to the force response, explain why the suspect’s behavior and circumstances did not permit the feasibility of a warning.  This would include the threat of the offender’s actions, the relative dynamism and rapidly evolving events driven by the suspect, as well as the safety issues involved in your decision.

Conclusion

“The safety interest in controlling the group increased further when the group was warned by police that a chemical irritant would be used if they did not move back from the area, and the group refused to comply.  Jackson, who heard the warning, also chose to ignore the officers' orders, and instead began to directly interfere with Officer Davis' attempt to maintain order.”  (Jackson v. City of Bremerton, 268 F. 3d 646, Court of Appeals, 9th Circuit 2001).

The courts are interested in the safety of all concerned, the public, the officer(s), and the offender.  The courts also understand that officer safety is vital, and will provide a lot of leeway to officers when they can prove they reasonably perceived they were under actual or imminent assault.  The courts also understand that an officer’s job is a difficult one, and that split-second judgments are made in circumstances that are dynamic, tense, uncertain, and rapidly evolving.  There is no requirement for perfection by police officers—officers are permitted a wide spectrum of reasonable conduct.

Warnings, when feasible, are no longer optional.  While the lack of a warning is not determinant to a finding of excessive force, it may well be a factor mitigating against you.  The concept of the feasibility of providing a warning to a suspect whose behavior calls for some type of employment of a force tool to gain their compliance is contextual.  The context is driven by the offender, with the officer adapting her tactics and force response accordingly.

There is a real-world requirement to warning that borders on being commonsensical.  Training that an officer must always provide a warning is counter to common sense and to safety—and does not decrease the liability exposure to an officer or agency.  Failing to train an officer to warn when given the opportunity to perhaps give the offender a chance to reconsider whether or not to comply is no longer excusable.

Bottom line:

  • Warn the subject prior to a force response if there is time and you can safely do it.
  • If it is not safe or there wasn’t time, respond with force per your training and your understanding of the context of the incident, and then explain why it wasn’t possible or safe given the totality of the circumstances you faced at the time.