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Are You a Cop or a Crook?

by George on August 18, 2014 11:13


“Government is not reason; it is not eloquent; it is force.”  George Washington.

 

Violence is an inherent part of your job.  When you step in front of any person on the street, you carry the full authority of the government behind you.  When you lawfully tell someone to do or not do something against their will, it is a command in the name of the People who employ you.  That person is required to reasonably comply.  If you respond with objectively reasonable force based on everything you know at that moment about the suspect, the circumstances, and the suspect’s threatening behavior or attempt to flee, statistically, it is overwhelmingly likely that your quantum of force (the type, duration, and the likelihood of the injury of that force), will be reasonable and ultimately justified under the law.  This includes shooting an imminent threat who dies or is injured as a result, even when it is later discovered that he was actually unarmed and you were mistaken about his actual threat.  Absent intentional misconduct, the shooting of a suspect is almost always ruled to be criminally justified.  

Although rarely it is not justified.  And therein, as the Bard says, lies the rub.

 

A justifiable shooting…and then the problems begin…

When can this go awry?  Police labor attorneys often advise officers, especially those involved in shootings, to refuse to give statements to criminal investigators.  Unfortunately more officers are beginning to abide by this counsel.  We’re seeing cases where an officer’s administratively coerced statement (per Garrity) is also being withheld from prosecutors rather than reviewed and later turned over to the DA.  In fact, based on their labor attorneys’ direction, some officers are now refusing to provide public safety information to the first arriving supervisor without demanding they be compelled under Garrity to provide the statement or that they wait until legal representation is present on-scene.

When asked why they are counseling their police clients not to speak to first arriving supervisor or later to investigators, their attorneys often state something to the effect of, “Nothing bad can come from not talking to the police (or D.A.).”  This is good advice if you were acting criminally.  But you weren’t.  You’re a cop.  It is vital to examine the wisdom of this logic coming from a criminal defense attorney who normally represents people who are criminals and have been arrested for their criminal acts, but is now advising a police officer.

 

Cop or a Crook? Different Strategies

If you protected yourself (or another person) by reasonably responding to your reasonable perception of imminent deadly threat, you are the victim of an attempted murder.  The law provides for the justifiable homicide or the justified shooting to defend against an imminent threat to safety by a suspect.  The law permits you to make a reasonable mistake of fact, and it permits you to reasonably fire more rounds than were actually needed based on your perception of need and human factors limitations.

Immediately following a shooting, it would be legal suicide for a murder suspect to speak freely to the police.  However, you are a cop, and you have vital public safety information regarding the crime scene(s), outstanding suspects, direction of shots, and the identification of evidence and witnesses.  This time-sensitive critical albeit limited information not only serves the public, but it serves you as well.  The crime scene will be protected, evidence preserved and collected, and witness statements recorded.  Additionally, other officers and the public will be protected by providing outstanding suspect descriptions and direction and mode of travel.  All of this will help to prove your version of this shooting, and direct the investigation toward the truth of the facts (which is good for you).

What possible good can come from a good guy not providing public safety information and some type of statement to investigators, either an interview, or, minimally, their coerced administrative statement, later to the prosecutor?  In some cases, not providing it leads directly to the officer being prosecuted for what was an ultimately justifiable shooting but is now left to a criminal jury.

Put yourself into the District Attorney’s shoes:

  • There’s a police bullet(s) inside a dead guy and no explanation from the involved-officer about how it got there—and more importantly, why the officer put the bullet(s) into the dead guy.
  • There is a witness, often a friend or family member of the deceased, who claims the officer brutalized the decedent in some manner before callously and intentionally shooting him to death.

Since the evaluation of force is always from the officer’s perspective, absent that officer’s reasonable perception of the situation and the facts known to him at the time, as the District Attorney, you would have no choice other than to criminally file on the involved-officer.  At the very least, the shooting may not be determined criminally justified, and may remain open indefinitely, hanging over the officer’s head for years.

What benefit comes from explaining your understanding of the events, whether through submitting to a criminal interview or, at least, providing your administratively coerced interview to the D.A.?  Thoroughly articulating your perceptions and state of mind helps the D.A. arrive at the legal conclusion that your perception of imminent threat was reasonable and that any reasonable officer would have responded in the same manner.  While it is always a good rule-of-thumb to invoke whenever Mirandized, there is generally no good reason not to comply with a Garrity compelled order to provide a statement that will be eventually provided to investigators. 

 

Bottom Line

Most union attorneys are expert with labor contracts and employment law.  Depend upon their advice in these matters is what you pay them for.  They may also have some criminal defense experience or, at least, were taught about criminal defense in law school.  But most are not well-versed in police post-force event needs.  And criminal attorneys?  Applying criminal defense logic to a reasonable police force response is improper and fundamentally inappropriate.  The involved-officer is the victim of a violent crime who responded with lawful and objectively reasonable force.  The officer is not the perpetrator and a crook’s defense strategy is incongruous with the officer’s role in the event.

The reasonableness of a police force response is judged from the perspective of the involved officer(s).  Following a criminal attorney’s advice to “take the Fifth” doesn’t serve your needs as an officer who was a victim of a violent crime.  Giving a limited public safety statement protects not only other officers and the public, it also begins the process of protecting yourself by pointing the investigation to the facts and evidence of the case.  If Mirandized in any situation, the smart money says to invoke your right to remain silent.  That said, there is absolutely no reason not to comply and to later provide a Garrity-compelled administrative statement.  When interviewed, provide your own audio-recorder to have a record of your testimony.  You and your attorney can review it and then formally release it to the D.A., allowing the criminal investigation to resolve.

You’re a cop, not a crook.  You acted reasonably, and, even if it is later determined that you made an honest mistake, the outcome is almost universally positive.  It’s probably a good idea not to follow the lawyer’s advice meant for the guilty.  Tell your story when the timing is appropriate, explain fully why you believed your or someone’s safety was in jeopardy by the guy you shot, tell the truth as you remember it, and the let DA will do his or her job.

Pointing Firearms: Range Safety or Real World?

by George on March 7, 2013 10:17

This article was published by the International Association of Law Enforcement Firearms Instructors in their magazine, "The Firearms Instructor," Issue 54.  Please note:  revisions to this blog article have been made to reflect changes in the case law that was in force at the time of the original writing. 

Police officers have been armed with firearms almost since the inception of law enforcement in the US.  Since equipping officers with handguns, shotguns, submachineguns, and rifles, officers have pointed those weapons at suspects whom those officers believed to be a reasonable threat.  It is inarguable that many shootings have been prevented as a result.  Is that practice of pointing handguns at suspects without the present intent to immediately shoot wrong?

In the last few years, some well-known gun writers and police trainers have been urging officers, agencies, and law enforcement in general, to consider that unless the officer immediately fires, the pointing of a firearm at a suspect is a “violation” of safety rules.  Pointing a gun, according to them, is therefore an inappropriate, unreasonable tactic.  What is the basis of their beliefs?  Range Safety Rule Number 2:  “Never let the muzzle cover anything you are not willing to destroy.”  This new idea will be referred as the “Rule 2 Negligence Standard.”

One trainer wrote that “while not a violation of law,” pointing a gun at a suspect and not shooting is a violation of the safety rules of gunhandling and should subject the officer to discipline by his agency.  This action should be considered as “causing” the officer and agency to be civilly liable.

It is important to understand why these well-intentioned individuals are mistaken in their beliefs, and how to argue against the inevitable accusations by plaintiffs and the media (as well as those in your own agency) who will take up the chorus in claiming that any pointing of a firearm at a suspect without firing it is a violation that should be subject to sanction and/or judgment.  These people are, in effect, attempting to create a new negligence standard for American law enforcement—one which is unnecessary and impractical.

As law enforcement trainers, there really are consequences to everything we do and say—often resulting in life-or-death.  If this misunderstanding of range rules in the street is permitted to grow and become “normalized” as part of training, the courts will sooner or later incorporate it into their understanding of “proper” police work and prevent any officer from muzzling someone without shooting.  From that moment on, any officer who points his or her weapon at a suspect and fails to fire will likely be guilty of excessive force.  The result?  More officers hesitating to draw guns, and more police shootings with suspects who thought they could beat the cop to the draw.  More suspects will be shot with a corresponding drastic increase in liability exposure.  And more officers are going to be shot down.

When addressing an issue with a “new interpretation” of an existing concept, care must be taken to extrapolate the possible consequences.  While well-intentioned, this concept has not been well thought out.  The old adage applies—be careful what you wish for, you may get it.

Bottom line:  When an officer has a reasonable belief that a suspect or situation might be dangerous or threatening, he or she may presently point a firearm at a suspect in order to ensure their safety.  It is lawful to do so.  And it is NOT in any way a safety violation of “range” safety rules to point a gun at a suspect(s) who may be armed, violent, or outnumber officers.

Tactical Reminder:  As I pointed out in an article entitled, “The Proper Weapon Hold on a Suspect” (The Police Marksman, November/December 1993), the proper method of holding a suspect at gunpoint is to keep the weapon pointed at the suspect’s waistband.  This permits observation of the suspect’s waistband and hands, allowing the officer to see threat cues, predatory positioning, and aggressive movement while still “on-target.”

POINTING A GUN CAN BE EXCESSIVE FORCE

An officer can now be subject to discipline and liability by pointing his weapon at an individual or group when the officer is unable to articulate the threat he or she felt existed at the time.  In the federal court's denial for a motion for summary judgment, the court stated that pointing a firearm (in this case, a submachinegun) at a subject is “excessive force” when there is no legal reason to do so is Baird v. Renbarger (7th Cir., 576 F.3d 346, January, 2010).  From the facts of the case it would be apparent to any reasonable officer that pointing a firearm at a person in this situation might be unreasonable:

  • An officer who was verifying a VIN during a visit to an auto shop believed the VIN had been tampered with.
  • Returning the next day with a search warrant, the officer pointed a subgun at the occupants of the business, and forced them at gunpoint to sit on the floor together. 
  • The officer then detained the occupants of adjacent shops at gunpoint, including a group of Amish men, requiring them to sit with the others who were detained.

The federal district court determined that it was “objectively unreasonable” in these circumstances to aim a submachinegun at wholly compliant and non-threatening subjects.  The 7th Circuit Court of Appeals used the major factors within the totality of the facts known to the officer at the time of Graham v. Connor (1989):

  • The severity of the crime at issue:  The crime of altering a VIN is one that is not associated with violence.  The court remarked, “…this is a far cry from crimes that contain the use of force as an element, crimes involving the possession of illegal weapons, or drug crimes, all of which are associated with violence.”
  • The threat of the subject to officers or others:  This officer had been to the auto shop the day before, but articulated no belief that the occupants were threatening in any way.  On the day of the warrant service, all immediately complied with his and other officers’ orders.
  • The active resistance or attempt to flee:  None of the detained subjects resisted at all or attempted to escape.  

Other courts have weighed in on this subject, ruling that an officer pointing a gun at a suspect absent indications of threat is excessive force, including the 9th Circuit in Robinson v. County of Solano (2002) and 3rd Circuit in Baker v. Monroe Township (2005).  Some of the facts in these and other cases leading to a finding of excessive force  or summary judgment motion(s) are:

  • While investigating a crime of illegally shooting dogs, officers pointed a gun at a handcuffed, searched prisoner for an extended period of time.
  • Detaining an infant/child/children at gunpoint.
  • Pointing a gun at the head of an elderly man after he had been handcuffed.
  • Generally it is not justified to point any firearm at a compliant individual when the circumstances are not threatening.  Even if the circumstances were threatening a few moments ago, as soon as that changes, officers must reflect those changes in their behavior and stop pointing guns at compliant or restrained people.

Bottom line:  Point a firearm at a person only when you can articulate your reasonable perception of danger this person poses to you or others, whether it is through their acts or their connection to the dangerous circumstances in which you find yourself.  Failing to be able to explain why you needed to point your weapon at someone can create huge problems for you.

Note: After the submission of this article, the juries in Baird and in Robinson decided in favor of the officers, their verdicts were that there was no excessive force in these cases. That said, the federal circuits are weighing in, and officers should take note that pointing firearms at a person whom the officer does not reasonably perceive as threatening is considered to be excessive force.

THE COURTS SUPPORT OFFICERS POINTING GUNS AT PEOPLE WHEN JUSTIFIED

The US Supreme Court has always held that it is permissible for the police to point guns at people suspected of violent or weapon-related crimes.  This includes those who are suspected of a non-violent crime but who are known to have carried weapons in the past.  Federal Circuit Courts and Courts of Appeal routinely have ruled that officers may hold people at gunpoint when the circumstances reasonably create the fear of violence.  Even the 9th Circuit in Duran v. City of Maywood (2002) stated that two officers moving toward the location of a shots-fired call with their handguns drawn did not increase the likelihood of a shooting.

When an officer reasonably believes the circumstances could be possibly threatening or violent, especially those involving drugs, weapons, or violent individuals, the drawing and pointing of a weapon is wholly permitted.

TOOLS OF INTIMIDATION?

Proponents of this “Rule 2 Negligence Standard” argue that the police firearm is not intended to be “tool of intimidation.”  I would argue that every police tool, from “command presence” to OC Spray, the Taser, baton, Police Service Dog, and every firearm is a tool of intimidation.  The very presence of a police officer who is confronting a criminal suspect is inherently intimidating.  The uniform, bearing, and the weapons the officer carries are designed to be so.

The US Supreme Court in Graham supports this concept of intimidation of suspects, stating, “The right to make an arrest or investigatory stop necessarily carries with it the right to use some form of physical coercion or threat thereof to effect it” (emphasis added).  The Court recognizes that intimidation is part of law enforcement.  It is hard to argue that there is a higher level of intimidation other than directing a muzzle directly at a person and telling them to stop their behavior or they will be shot.  The realization of their mortal vulnerability as well as the officers’ intent causes most suspects to comply to avert a shooting.

VIOLATING “RANGE RULES”?

There can be little question that a firearm is a dangerous tool.  It is designed and intended to harm a living being in defense of life (or hunting for meat).  Its carry and display must be regulated and training imposed upon officers in order to reasonably minimize the chance for tragedy by preventing unintentional discharges. 

Range rules were developed through hard won wisdom.  A moment’s inattention or distraction and someone is needlessly injured or killed.  As the range rules have been promulgated and enforced, injuries from firearms accidents have steadily decreased.  Firing ranges are generally safe places to be as a result.

The National Rifle Association’s “Gun Safety Rules” include only three parts:  1. Always keep the gun pointed in a safe direction;  2. Always keep your finger off the trigger until ready to shoot;  3.  Always keep the gun unloaded until ready to use.  This is a good start for gun safety, especially on a cold range where weapons remain unloaded until directed.

The late Jeff Cooper of the American Pistol Institute at Gunsite Ranch in Arizona developed a version of these rules, one that many officers have been trained in.  The four so-called “inviolate” Firearms Safety Rules are:  1.  All guns are always loaded;  2.  Never let the muzzle cover anything you are not willing to destroy;  3.  Keep your finger off the trigger until your sights are on the target;  4.  Always be sure of your target.  This article is not intended to discuss the efficacy of these range rules as they are generally stated (which should certainly be up for discussion).  Rather, the application and intention of Safety Rule Number Two will be discussed.

The trainers and writers who are promulgating the “never point a firearm at a suspect unless you intend to shoot” negligence standard explain that while it is legal to point a firearm at a person in limited cases, it is a “violation” of the safety rules.  It is therefore unsafe and should be prohibited.  They agree that having your handgun (or shoulder weapon) in your hands early is a good thing in possibly dangerous circumstances (because, as we all know, the fastest drawn gun is the one that is already in your hand).  They argue the in-hand weapon should be held in a low-ready or off the line of the suspect until the decision to shoot is made.  Additionally they note that there is little difference in reaction-response times between a properly positioned weapon that is held off-target and one that is held on-target.  This, they reason, will reduce or eliminate the possibility of injury due to unintentional discharge and resulting civil liability. 

While some of their reasoning for why they believe an officer should not point guns at people they do not intend to shoot may be useful in limiting liability, the purpose of an officer possessing a firearm is not about civil liability prevention.  It is rather about defense of life and creating compliance.

  • Defense of life.  The main purpose for carrying a firearm is to shoot another person to save life.  Stopping a suspect’s imminent or actual threat to life by shooting bullets through their body is the only reliable and proven method of quickly stopping life-threatening behavior.  Shooting a person necessarily requires the muzzle to be pointed at them.  Proponents of the “Rule 2 Negligence Standard” are not against officers shooting people who earn getting shot.  Their concerns are how and when that muzzle is brought on target.  That is the center of this discussion.
  • Creating Compliance.  Many, if not a universal experience, officers have had the experience of a non-compliant suspect in a dangerous situation, or possibly armed, suddenly become compliant when confronted by the muzzle of a police weapon.  Almost all people understand there is a fine line between a gun being pointed at you and that gun being fired at you.

What creates compliance when muzzling a suspect?  The fear of being shot.  The presence of a handgun in police confrontations is universal—officers carry handguns at all times.  A handgun in an officer’s hand is an increase in the degree of the threat to the suspect.  The suspect’s perception of the threat posed by an officer’s handgun muzzle pointing directly at him is dramatic.  A pistol in-hand is cautionary, a firearm pointing at you is a whole other universe of reality—that’s imminent and real.  Confrontations with an armed suspect results in compliance because that suspect knows that if he tries to outdraw a handgun pointing at him, he’ll lose.  Simply put, many, many shootings are prevented because officers muzzle suspects.

SO HOW DO WE TRAIN IT OUT OF COPS?

So let’s say we do adopt the “Rule 2 Negligence Standard” and declare that pointing a gun without shooting to be a violation of policy, tactics, safety, and, eventually, law.  What will the result be?

  • Slower response to deadly threats.  Most will agree that officers today are much slower to respond with force than their forbearers.  This reflects our society at this time.  It must be considered that by adopting the “Rule 2 Negligence Standard,” officers will likely be even slower to draw and fire their weapons than they are today.  Of course, there will be an attendant increase in shootings, and the resultant increase in both suspect and officer injuries and death.
  • increased allegations of misconduct.  Due to more sophisticated offenders who already take advantage of the system, the allegations (both true and false) of “the officer pointed his weapon at me” will increase.  This will be especially true in both criminal and civil courts.  The “he said/she said” nature of many of these complaints will cast a pall across law enforcement, causing many to leave their handguns in their holsters until the last possible moment before a shooting for fear of being falsely accused of brandishing.
  • A natural response to great threat.  In highly threatening circumstances, officers will point their guns at a suspect due to their own fear and desire to prevent a shooting.  Many officers, if not most, have had the experience of facing a suspect whose actions were so intense and threatening that the officer could have legally shot him but didn’t for one reason or another.  Universally, these incidents were emotionally startling in their intensity and focus.  Having a weapon in one’s hand and, if given time, NOT threatening a dangerous person with it before a shooting is not natural.  It would be a very difficult training issue and a behavior that could not be prevented.

Pointing a firearm at a suspect in a dangerous, possibly imminently threatening situation is something that we cannot “train out of officers.”

  • Hard-wired response.  It is a hard-wired human behavior to throw our hands and arms forward and up between that which we perceive as suddenly threatening and ourselves when startled.  This action has been termed the “startle reflex.”
  • Posturing to prevent violence.  Humans who feel threatened but are not yet engaged in combat, tend to “posture” in an attempt to intimidate their adversary.  They point the most dangerous weapon they have at that other person before blows are exchanged in hopes that the other person will become discouraged and demoralized, and desist or submit.  This intimidation is designed to avoid physical conflict.  When posturing, unarmed combatants will point their fingers or shake their fists.  If armed with a knife, it will be displayed between the two parties and pointed at the other person as a warning.  A club will be ominously swung in the direction of threat, or struck against an object as an example of the consequences of engaging in physical conflict.  Guns are pointed as a display of warning and threat.
  • A threat of last resort.  Pointing a gun is the highest level of threat—short of actually shooting the suspect—an officer has.  A pointed gun and a yelling officer are wholly intended to transmit the message that “There is nothing left except to shoot you, so comply with my orders.”

How is something this instinctive to be trained out of an officer?  It can’t be.  The result of the “Rule 2 Negligence Standard” requirements will be that many officers will be disciplined and possibly lose their jobs as a result of their natural and instinctive response to their perception of great danger.  Citizen complaints will increase.  False accusations of officers brandishing will become the norm by criminal defendants and civil plaintiffs.  Officers will be forced to defend the negative—arguing that something did not occur.  The civil liability exposure for “excessive force” will dramatically increase, resulting in more lawsuits and increased litigation costs, settlements, and adverse judgments.

REASONABLY MUZZLING A SUSPECT IS SIMPLY NOT A “VIOLATION”

There is no “violation” of range safety rules when pointing a weapon at a suspect when the situation is sufficiently threatening.  Rule #2 states:  “Never let the muzzle cover anything you are not willing to destroy.”  It says, “…willing to destroy,” not going to destroy.  This is a paper target rule when taken literally. 

A police officer who muzzles a suspect, as discussed, is conveying the willingness to shoot that person.  However, that officer is communicating to that individual that he simply has not made the decision to shoot him yet, but is very, very close.  The decision as to whether or not the suspect will be shot is now up to the suspect and his actions.

The law as interpreted by the courts permits officers to point guns at suspects in circumstances that justify it.  An officer who points a gun at a suspect is implicitly telling that suspect to change his behavior immediately or he’ll be shot.  As Clint Smith says, “The muzzle of a .45 pretty much means ‘go away’ in any language.”

The “Rule 2 Negligence Standard” is a misunderstanding of the rules intended to increase range safety and safer gun-handling.  Officers in the street work under a different context.  They not only shoot to protect life, but attempt to protect life by reasonably intimidating a threatening suspect by pointing a weapon at him. 

By adopting the “Rule 2 Negligence Standard,” it will likely be sooner rather than later that officers will be prohibited by the courts from employing this important safety practice.  Yes, unintentional discharges occur, but not at a greater frequency than before.  And when they happen, agencies will settle with the plaintiff to compensate for the loss.  But the shooting of more suspects who attempt to fight their way out of an arrest when confronted by an officer who is hamstrung in their last-ditch ability to convince a suspect that the only way out without risking serious injury or death is to comply will be out of proportion to the very limited number of injuries from unintentional discharges.  Sometimes pointing a gun at a suspect is the only chance an officer has to prevent a shooting.

Adopting this misinterpretation of “Safety Rule 2” will increase civil liability beyond anything now seen from the few unintentional discharges that occur annually in the US.  Many more suspects will be shot, injured, and killed as a result of its adoption.  More to the point will be the needless loss of police officers in the line of duty because of a misinterpretation of something that was originally designed to keep them and all gun owners safer. 

Instructors and administrators:  Let’s really think about the very real consequences of this before incorporating it into our legal and tactical doctrine.

Shooting Suicide Bombers?

by George on April 25, 2011 07:56

Many intelligent and well-informed individuals have been warning for years that the world-wide trend of Person-Borne Improvised Explosive Devices, or "PBIEDs" (whatever you call them, whether suicide bombers, homicide bombers, or “insane-dude-or-dudette-with-explosives-strapped-to-his/her-body-to-kill-others-and-self”) will come to our shores and be directed against our people.  It really is a matter of time.

So the question in some circles is raging:  Head shots vs. pelvis shots?  While head shots are seen as a sure means of stopping a subject and putting him down, how difficult is it to hit him in the head while he is moving, and you are feeling the life-threatening pressure knowing that if the vest detonates you and others will die?  And there is the added pressure that if you miss the shot completely, he/she will likely detonate, taking you and everyone else with him/her.  Pelvis shots with rifles and shotgun slugs are generally a body dropper because of the bone breaking capability of those rounds, but that does not stop the terrorist from self-detonating.  And pistol shots to the pelvis often cause the individual to bleed out, but rarely force a subject down due to mechanical disruption.

Another reality:  neither a successful head-shot, pelvis shot, or additional confirming shots to the head will stop a second individual from detonating that PBIED from a distance by a remote firing trigger.

Given that the first indication of the presence of a PBIED is generally an explosion with casualties, there have been instances where these individuals were discovered prior to their detonating their device.  These discoveries have generally been through good fortune, sloppiness on the part of the suicide-bomber, or a change of heart where a second individual remotely detonates the PBIED.  Some have actually been interdicted prior to detonation by alert security forces and, at least in one instance, an alert armed citizen.

If there is a possibility of shooting to interdict the detonation of a PBIED, is there a real-world danger of shooting this terrorist in the body?  What is the real-world implications of shooting to the torso and possibly hitting the vest components?  Before we begin developing doctrine, it is very important to determine our limitations and the context we must apply them in.  Supposition and dangerous assumptions has a long history of killing officers, warfighters, and others who are responding to threatening circumstances.

I had the privilege to speak at length to an...um...individual who is assigned to a US. Govt. facility where they test out cool and interesting things about this and other…um…topics.  They asked that very same question (shooting and hitting the PBIED).  They set about creating explosive vests using the most common components and designs from around the world.  Those devices were subjected to extensive “testing” to see what would happen.

The results of their shooting the heck out of those bombs?  Only one round in all of the testing set off a vest.  It was later determined that the bullet happened to hit the blasting cap, resulting in a partial detonation of the vest.  A few blocks of explosive did not detonate due to a sympathetic explosion.  Bottom line:  Even though there is a possibility of a partial detonation, the entire vest did not explode, and casualties would have been limited as a result.

His recommendation:  shoot the terrorist in the area you are most likely hit, and put him on the ground.  If the vest detonates due to a remote activation, a ground detonation will decrease the number and severity of collateral injuries—almost half of the shrapnel goes into the ground, and a good deal is directed vertically.

As a result this information, Cutting Edge Training's suggested doctrine is:

  • If you are close enough, make a proximity-shot to the head, followed by a second round to the head.  Justification for the second round to the head:  the imminent danger of the bomber and his/her intent to commit mass, indiscriminant murder;  The presence of an explosive designed and intended to murder and maim others;  the triggering device is likely easily reached and activated, and the need for self-defense—you are in proximity—and defense of others justifies this action to stop any possible detonation by the suspect.  Immediately evacuate the area, including yourself to prevent injuries should the PBIED be remotely detonated.
  • If you are close enough, or have the equipment (red-dot and/or magnification), and the situation is static—you are braced enough and the bomber is still enough, take a head shot, followed by a second shot to the head (the same justification as above).  Immediately evacuate the area (including self).
  • Take the shot at any target that you can hit, including any part of the torso.  Do not permit the bomber to deploy or transition to a position where he/she is able to maximize the casualties.  It will NEVER be better than NOW--shoot the torso.  Understand that bullets rarely work at stopping anyone from anything unless the brain, spine, or major load-bearing bone is disrupted.  Bullets stop people because they believe they need to fall down because they are hit, or they don't want to be shot anymore, or they leak enough blood to stop them from being able to stand.  So shoot that person a lot, then shoot him/her in the head at least twice.  Same justification, same immediate evacuation plan.

Let's keep everything in context:

  • If a shot is taken, the bullet hits the detonator, and the vest explodes, it is no different than if the terrorist executed his mission, except the officer disrupted his timing and likely minimized casualties.
  • If the shot at the head is taken and missed, the terrorist may decide to detonate then and there, or run to an area where maximum casualties will occur.  Now a shot to the torso (including the pelvis) is the only option left, and a running, dodging target presents all sorts of background problems, as well as increasing the difficulty of making the shot.
  • If the shot to the head or torso (including the pelvis) is only partially successful, a detonation will probably be the result.
  • A successful head shot and instant death of the bomber may still result in a remote det of the system.
  • A shot to the torso that actually hits the detonator is unlikely, though possible, to create a detonation.  But that shot is more likely to hit the threat than a small target such as the head of a moving, breathing animated human.
  • Due to the imminent threat of this individual, regardless of his medical status, a second (or many) shot(s) to the head to ensure his inability to detonate the vest is justified.

Head shot, pelvis shot, or torso shot?  Here’s a thought about will like be the foremost reality:  Identifying the individual carrying a PBIED with the certainty that most cops are going to need before taking a shot at anyone will likely be the main obstacle at anyone taking a shot before the PBIED is detonated.  No cop wants to shoot an innocent person.  How will there be enough certainty (probable cause) to press a trigger unless the PBIED is visible.  If the individual reveals the bomb-vest, it’s likely just to gain enough attention of his/her victims in the moments before detonation that a first responder will likely not be able to respond.

If able to respond in time?  Shoot him/her to the ground.  Quickly shoot him/her in the head enough times to visually confirm that the first stage of imminent threat is over.  And then get out everyone out—including you—as quickly as possible to avoid the effects of a remote detonation—leave the body and evidence for someone else.  Besides, that’s what the EOD tech’s signed up for (what were they thinking?).

Be safe.  Decide fast.  Shoot straight.

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.

 

Dealing Safely With Prone Suspects: In Context

by George on August 29, 2010 03:37

In January, 2009, the Force Science Research Center (FSRC), headed by Dr. William Lewinsky, came out with another excellent but preliminary study that certainly will increase officer safety.  This study alerted law enforcement to the dangers of an unrestrained prone suspect with his hands tucked under this torso.  However, as can happen with any study, misunderstandings regarding the study’s published conclusions seem to be popping up.  The FSRC will soon come out with the findings of their completed research project, conducted with the assistance of Sgt. Craig Allen and the excellent Force Tactics Instructor team of the Hillsboro, Oregon, Police Department.  These misunderstandings involve responding with force that will likely prove to be difficult or even impossible to justify. 

I first became aware of study, and saw a preliminary draft of the article by Dr. Lewinsky while teaching a DT instructor (Effective Combatives Problem-Solving Instructor:  TRAIN-THE-TRAINER) course for a large agency.  Various officers stated they felt the topic of problem-solving a subject’s hands out from under him following a takedown was now irrelevant in view of the new study’s findings.  They now believed the study justified shooting any suspect whose hands disappeared under his torso. 

I also received several e-mails from officers throughout the country asking my take on the study.  Each of these veteran officers were asking essentially the same question:  “Any time a suspect’s hands disappears under his torso, he may be armed and can move faster than I can respond.  Am I justified in shooting him because of well-known reaction-response disparities?”

Given the number of inquiries, there seems to be some level of confusion about the study’s conclusions and what officers may take away from its findings.  Bottom line, the FSRC’s study did not suggest that every prone suspect whose hands disappear is an imminent threat who needs to be shot.

FSRC TRANSMISSION #113

In an e-mail newsletter entitled, “FORCE SCIENCE NEWS: Transmission #113," the lead-in was:  “New FSRC study explores threat posed by prone suspects.”  The first paragraph states, “One of the most dangerous positions a suspect can assume on the ground is prone with his hands tucked under his body, either at chest or waist level.  What’s hidden in those hands?  And if it’s a gun, how fast can he twist and shoot if you’re approaching him?”

It continues, “The prone study…is expected to further pinpoint the formidable reactionary curve that officers are behind when attempting to prevent or respond to potentially lethal assaults.”  Importantly, the e-mail notes, “Role-playing a prone, armed offender with hands tucked under his body, he repeatedly turned to present and fire a gun as if shooting at a contact officer approaching him from the feet or side (emphasis added).”  “The average time it took him to make his threatening moves was ‘about one-third of a second…This speed would likely be faster than an average cover officer could react and shoot to stop the threat, even if the officer had his gun pointed, his finger on the trigger, and had already made his decision to shoot.’”

Simply put, approaching a prone subject (or anyone) who refuses to show his hands is very dangerous and may lead to the suspect spinning and shooting an officer.  This is the same principle as the “Folsom Roll” that I introduced to law enforcement a couple of decades ago, revealed by a paroled "associate" of the Aryan Brotherhood prison gang who did not know I was a police trainer.  He moved so quickly from a standard “spread eagle prone” that I was unable to react (other than to grimace) before he hit me (very hard), pulled me over him, and simulated taking my holstered handgun.  He then simulated shooting the cover officer using me as a shield, and then me in the head.  This happened in a blink of an eye.

Dr. Lewinski’s study now documents what was practically and painfully demonstrated by this prepared offender.  Someone can move faster from a prone position than you can react.  If he has a gun, he will be able to shoot you faster than you can respond, even if you “think” you are ready.

CONTEXT IS EVERYTHING

Every force response depends upon “context.”  The police force response can only be reasonable when the officer is able to explain the context of his or her perception of the suspect’s behavior within the totality of the circumstances upon which the officer’s decision-making reasonably depended.  Broadly applying the FSRC prone suspect study to all prone suspects whose hands disappear is taking its findings out of context.

Situation:  if you are attempting to arrest a subject and he resists, the first (and best) option is to take him to the ground in the prone position.  Before and during the takedown, you will have noted that his hands were free from weapons.  On the ground, this suspect decides to continue to resist, delaying the inevitable by pulling his fists under his chest in the classic “Nuclear Turtle Position.”  

What is the context?  You are probably kneeling (or lying) on his back, using your body weight to hold him in place.  There is likely at least one other officer on top of him—or soon will be.  From this position, it will be very difficult for him to roll or fight his way to freedom.  His hands were clear of weapons during the fight, and he has simply locked them into his chest with no obvious pulling or grabbing motions. 

Solution?  Slow down.  Wait for at least one other officer to back you up.  Do not tase him (unless you can articulate a threat of violence).  Once there are at least two officers present and using their weight to hold him down, extend a baton, and shove the tip to the ground between his armpit and chest wall.  If he squeezes his arm against his torso, preventing the baton tip from being pushed to the ground, give him orders to “stop resisting” and stir the baton vigorously while pushing down.  Once the baton is deep enough, use it to pry the arm out from under the subject.  Upon seeing the wrist pried out by the baton, cuff it.  This gives you a handle, helping you force the cuffed wrist to the small of his back.  If he’s not paying attention and again fails to comply, repeat the same on the other side.  Then bring the arms together, and cuff the handcuffs to each other.  Once he is compliant, adjust the cuffs so that one pair of handcuffs are securing him.  If he won't calm or cooperate, he can be transported in two sets of cuffs--make sure you double-lock all four cuffs to avoid injury to the suspect.

Change of situation:  that same unsearched individual in a prone position with officer(s) on top of him begins digging in his waistband or chest/armpit area.

What is the context?  There is no plausible reason for a person in this situation to dig and grab at something in the waistband or armpit areas other than to arm himself.  This is quickly approaching an "imminent threat" situation. 

Time to quickly change gears.  With you on top of him, it will be problematic for the suspect to surprise you by sharply rolling.  Target the limb that is apparently being armed by quickly pressing your weight with your closest knee through his upper inner arm, pinning his shoulder and, more importantly, his elbow to the ground.  A second officer, if available, should similarly pin the other arm.  If additional personnel are present, immediately assign an armed cover (not "lethal cover") officer.  This officer should be far enough away from the pile to have a “big picture” view but still close enough to take a single step and deliver fight-ending “proximity shots” if reasonable.  If you are alone, draw your handgun. 

In either case, order him to, “Stop reaching!”  Tell him clearly and loudly that you will shoot him if he does not stop.  Make shoot/no-shoot decisions based on the totality of the facts known to you at the time.  Remember, you are not required to verify an actual weapon exists if you have a reasonable fear of imminent threat based on his behavior, provided you can articulate your reasonable belief sufficiently.

If you are a lone officer, and he then permits you to pull his lower arm and hand out from under him, use your non-dominant hand to pull while maintaining weight with your knee on the upper arm, preventing any independent action by the suspect.  As you take hold and maneuver his arm, be very aware of sympathetic grip response issues that might create an unintentional discharge, and maintain the muzzle in a direction that doesn’t endanger any human.  If the hand is empty, holster and cuff that wrist, taking him into custody.

THE UNRESTRAINED PRONE SUBJECT

Change of situation.  You have an unrestrained prone subject with his hands under his torso, and refusing to show his hands.  This may be where you (and hopefully multiple officers) are directing him into a known-risk/felony prone position and he chooses to bring his hands under him, or it may be following a shooting where his medical status or consciousness level is unknown.  Whatever the case, this subject is in a prone position and is not complying with orders to show his hands.

What is the context?  There is a reason this suspect is not showing his hands.  Just like any subject who refuses to show his hands, do not approach him.  He is not cooperating.  He must have a plan.  And part of his plan might include you walking up to him to force him to comply. 

Slow down and be patient.  This is a multiple officer problem.  An “L” shaped contact is safer (officers contact him from two separate positions approximately 90 degrees apart).  From positions of cover and ensuring clear fields of fire and background, the subject should be made aware that multiple armed officers are present.  Orders are given to show his hands.  Give him time.  It’s uncomfortable lying on concrete, asphalt, or even grass for an extended time.  Eventually he will adjust his position, possibly giving you visual access to his hands.

Failure to comply now creates a new tactical problem.  At some point, after numerous orders and sufficient effort to gain his compliance, someone will be required to go “hands-on.”

Ideally, a ballistic shield approach with four officers (one on the shield, one with a Taser©, and two contact officers) will be made, protected by at least one cover officer behind something that stops bullets.  Approach is from the side least likely to have a muzzle pointing at the team.  When the contact team is in position, the cover officer gives one more command to comply.

If there is no compliance, tase him from an optimal distance.  As soon as it appears he is under Taser© energy, the two contact officers immediately move forward to quickly pin both upper arms to the ground with their knees while he is under power.  The shield officer ditches the shield and uses his body weight through his knees on the suspect’s shoulders.  Any subsequent tasing should be employed only if he is about to get out of control again—not to gain his compliance with orders to move his hands.  Now that both arms and his torso are pinned, slow down, work the problem, and get him cuffed. 

If the “multiple officers with shield” option is not available, call for a K9.  If this isn’t an option, it remains a multiple officer problem.  Once backup is on-scene, the traditional selection of the contact officer through “the-least-time in-grade-goes-first” method still works, with the senior officer(s) protecting from behind cover.  Approach from the side least likely to have the muzzle pointing at you and get those shoulders and his upper arm pinned immediately. 

If he spins upon approach and you reasonably believe you are in imminent threat of death or serious bodily injury, respond per your training.  The information that Dr. Lewinsky and his FSRC staff gained through their initial study will be extremely useful when articulating your decisions and defending your actions.

CONCLUSION

The Force Science Research Center has again made a serious and positive contribution to the safety of officers and a better understanding of the threats to life they face through the study of the capabilities of an unrestrained, prone suspect who has his hands tucked under him.  As I learned in the late ‘80s, a prone subject can move much faster than I can react.  Happily, all I suffered was a bruise and wounded pride.  If that had been real life and that parolee had been armed, I might not be here today.

The Force Science Research Center has again made a serious and positive contribution to the safety of officers and a better understanding of the threats to life they face through the study of the capabilities of an unrestrained, prone suspect who has his hands tucked under him.  As I learned in the late ‘80s, a prone subject can move much faster than I can react.  Happily, all I suffered was a fairly significant bruise and wounded pride.  If that had been real life and that parolee had been armed, I likely would not be here today.

Responding to the varying threats posed by proned suspects, just like every situation officers face, is a matter of context.  The latest FSRC study is very narrow in its scope, and should not be broadly applied to all situations involving a non-compliant suspect who tucks his arms under his body and refuses to be handcuffed.  It’s all a matter of context.

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.