Cutting Edge Training

All of the latest studies on force response by police scream the fact that officers respond with force sparingly.  Over 97% of the time in an arrest, suspect behavior requires no force response by the arresting officer.  When an offender forces the situation, the majority of the time it is a low-level resistance involving muscular effort by everyone—a lot of negotiating by the suspect, and repeated commands by the officer(s).  When an officer is required by the offender to resort to force to control resistance or defend against assault, how should it be judged by the agency?

The evaluation of any force response should be fairly straight forward—the courts have provided very workable and, frankly, very sympathetic formulas for determining the reasonableness of an officer’s force employment.  Many agencies, however, muddy the waters in their test for reasonableness by using the invented standard of whether or not the officer employed “approved techniques.”   This unnecessary component of determining whether or not an officer achieved proper conduct creates liability for the officer and agency where there was none.

Background

A lot of money and time is spent training officers in defensive tactics and suspect control methods.  Whether the agency is forced to use the system endorsed by its particular state, or is free to choose the system to be presented, every agency settles upon a system or philosophy in which their officers are trained.  In many cases, the agency chooses a vendor to “certify” the agency’s instructional staff. 

Unfortunately, in many instances, these vendors dictate to the agency what the agency’s standards shall be.  They use the fear of the “Double-L of Law Enforcement ” (“litigation” and “liability”) to effectively coerce the agency into continuing to use their training system (translated:  transfer your agency's training budget to the vendor).  Anyone who has ever heard any of the following phrases has experienced this type of blackmail:

• “If you don’t use our techniques as we train you, you are on your own when you get sued…”
• “If your instructors do not re-certify regularly, we will de-certify them as instructors…”
• “If you use our techniques, we will testify for you.  If you don’t, we cannot assist you…”
• “The use of any techniques other than the ones we teach, or if employed differently than we require, will create liability.”

As a result, some agencies go so far as to create a policy or practice of requiring each officer to employ only those “approved-techniques” in which the agency trained them.  Generally turning a blind eye to what their officers actually do on a day-to-day basis, these agencies reserve the right to judge whether or not the technique the officer used was proper.  This artificial standard is based not only on the circumstances at the time, but also is also judged on whether or not it was applied in the middle of a dangerous fight as it was trained and in an "approved" manner. 

In these agencies, when a subject is injured by an officer using a “non-approved technique or method,” discipline is handed down—an officer who was simply attempting to get the job done reasonably has his/her career damaged.  Lawyers become involved and settlements are made.  And then every cop goes back to what cops do:  arresting bad guys, improvising tactically, and getting by as best they can until someone gets hurt the next time, with continuing findings of policy violations and all of the familiar aftermath. 

These policy violations and resulting liability are not a product of violating the law or a person’s rights.  Instead, this creation of liability is an artificial policy construct dictated by vendors or misguided policy makers that state, “Officers may perform only ‘trained and approved techniques and tactics.’”  Training has been officially deemed by the agency’s admin to be thoroughly comprehensive and sufficient for all circumstances.  The consequence of this is that failure to use the expected techniques and methods is a violation of policy, and while the force may have been reasonable and lawful, liability was created nevertheless by the written standard of performing only those techniques and tactics as trained. 

Important Questions

It is important that a discussion take place within law enforcement over who determines what a force response can look like, and how that force will be judged.  

• Is an officer’s force response to be judged on the techniques he or she employs in the field?
• Is it true that if the officer fails to employ a technique as the vendor trained it, or utilizes an alternative, the officer and agency is liable for that use of force?
• What if an officer uses an “unapproved” method?  Is there automatic liability?

Evaluating Police Force in the U.S.

In discussing any aspect of using force, we must explore the basis of force, how it is evaluated, and where true liability exists.  The basic framework of any lawful force response by police, since 1983, rests in the Fourth Amendment of the US Constitution.  In US v. Place, 462 US 696 (1983), the court provided a balancing test to assist in determining the reasonableness of a police intrusion during a seizure. 

This was expanded in 2007 by the US Supreme Court in Scott v. Harris, 127 S.Ct. 1769 (2007).  Officers are required to weigh the likelihood of injury or death to the suspect balanced against the threat of the suspect as reasonably perceived by the officer at the time of the force response.  In Graham v. Connor, 490 U. S. 386 (1989) the US Supreme Court ruled that all police use of force is governed by the objective reasonableness doctrine, and is based upon a reasonable officer standard.  The only consideration when evaluating any police force response is, if in the totality of the circumstances known to the officer at the time of the force employment, would another officer with like or similar training and experience, given like or similar circumstance, have done the same thing or have made similar judgments? 

There is no mention of specific techniques or using “trained techniques” in any of these force decisions.  The question is simply asked, “Was the officer’s response objectively reasonable based on what he or she knew at the time?”  If yes, there is no liability.  If no, the plaintiff deserves to be compensated for their unreasonably received injury.

Most state laws require the same standard of reasonableness.  For the balance, these states require officers to use “necessary” force.  This is often defined as “force for which no reasonable alternative apparently existed and was reasonable to the situation.  Even with this more restrictive state law, there is no requirement to adhere to a specific technical standard.  

In both jurisdictions (state and federal), it is up to the officer to articulate the circumstances he or she perceived and responded to.  Even though the officer acted properly in the field, there can still be huge liability if that officer fails to fully articulate and document his or her reasonable beliefs.  There are no adverse judgments on the books stating the officer failed to employ some defensive tactics technique properly.  There are, however, myriad cases where an officer failed to prove his or her reasonable conduct in light of the totality of the circumstances known to him at the time.  This is the sole source of liability to officers and their agencies.  

The law does not evaluate the effectiveness of any particular force method, unless it has a bearing on the circumstances.  A shooting will be judged on whether or not a bullet hitting the plaintiff was justified by the circumstances, not on which stance or brand or style of weapon was used.  If deadly force is justified by the circumstances, it can be resolved by shooting, stabbing, choking, driving over, or even dropping a safe from the twentieth floor on the head of the person creating that imminent threat.  Deadly force is deadly force, and how you get there doesn’t matter.  In a case where limb manipulations were used with resulting injuries, no one in the jury at the end of trial is holding up a sign giving a score regarding how well the technique was performed (Juror #1, 8.8; Juror #2, 9.1; the French Juror, 3.1…).  Instead, the juror will simply be asked, was the actual force with which the officer responded reasonable given the circumstances?  Their verdict will generally reflect the defendant officer’s ability to articulate his justification of his actions, combined with the documentation of the evidence.  

According to the law, there is plainly no liability to using or not using any particular technique or method your officer has been trained to use as long as it was reasonable for the circumstances known to the officer at the time.

Responding With an "Unapproved" or Improvised Alternative 

The liability engendered by using an alternative technique is created only when the agency promulgates a policy requiring only “approved techniques” be employed by their officers.  Rather than limiting liability, this type of policy instead actually increases the possible exposure to the agency. 

The reality of any type of force response skills system requiring officers to “properly” apply only its techniques and no other is that no training is capable of answering all of the threats and problems an officer faces in the real world of policing.  Officers are constantly forced by circumstance presented to them by suspects to improvise, and training must reflect this need to problem-solve.  Relying only upon approved techniques cannot meet these needs (hence the need for improvisation) while meeting policy requirements.  In effect, a policy of this type forces officers to violate their policies in order to meet their immediate real-world defense and suspect control needs.

If the agency requires a technique to be used, it expects to see that method employed.  This is not only a dramatic misunderstanding of the purpose of training, but a belief that fighting is solved in an efficient and orderly manner with no input from the suspect.  The reality is that all training is merely a suggested method of resolution, and cannot be expected to be taken as a whole from the training floor and successfully placed wholesale into a combatives situation where the suspect is not a willing participant in the arrest.  Any situation where the suspect does not cooperate will almost universally result in any particular technique failing.  As long as an officer employs force reasonably, or employs an alternative method safely, there is no inherent liability, even if a subject is injured—unless the agency creates that liability by requiring adherence to a rigid technical system by its policy or practice. 

Rather than looking at the method the officer employed as being “wrong,” it would be more useful and would follow present legal guidelines to evaluate the context of the circumstances presenting themselves to the officer at that moment.  It is not a question of which hand was cuffed first and how, but, rather, the inquiry should be, “Regardless of the subject’s injuries, if any, were the officer’s actions and force responses justified by the reasonable perception by the officer of the suspect’s behavior and actions in light of the circumstances known to the officer at the time?”  

Vendors Can Create Liability for Your Agency--If You Let Them

It cannot be argued that vendors add their expertise to law enforcement's ability to do their jobs well and within the standards of proper conduct.  Someone must teach and train officers in the various and myriad skill and knowledge domains required today to safely and competently navigate through the requirements of law, policy, and expectations of professional behavior.  Those who make their living by training or supplying other services and products to law enforcement are generally upstanding individuals who are attempting to benefit both officers and the citizens they serve.  The problem begins when individuals devise a method of ensuring their income that is less-than-ethical.  Making a living by providing a service is one thing.  Coercion through unfounded fear is another

Many vendors who provide certifying systems to law enforcement state that failing to use their approved techniques will result in their not being able to “defend” a particular officer’s actions.  They say that only those incidents comporting with what the vendor declares to be in-line with its program can be defended.  Should the vendor’s technique fail because it was not properly executed (and for those vendors, any failure in the street is always attributed to “officer error”), or the officer simply improvises because he cannot remember how to do some complicated technique (which applies to every officer in a fight), or chooses to do something he made up on the spot, the vendor will not “defend” the agency in its litigation.  

At least one vendor has stated that they would make themselves available to plaintiffs as experts should their client agency’s officers fail to properly use their techniques.  The impression provided to the interested observer is that the officer and agency will be left hanging in court to twist in the wind when the vendor abandons them.  Command staff and officers often truly believe, and many vendors promote the belief, that to prevent being successfully sued, you must have the vendor on your side. 

Nothing is further from the truth.  Your officers will either act reasonably and prove their proper conduct, thus avoiding civil liability, or they will be liable to the plaintiff for their actions.  Their liability will not rest in the quality or type of technique they choose unless the agency creates that liability through policy.  It will, instead, hinge on the duration and type of force based on the circumstances known to them at the time.  Having a vendor’s representative as an expert witness may or may not be beneficial, but, in and of itself, will rarely, if ever, make or break your case.  

Conclusion

The question of liability in any force response is well-settled:  an officer may respond with objectively reasonable force based on the totality of the circumstances known to the officer at the time of the force response.  This evaluation method stands regardless of the method or force technique an officer chooses or is forced to employ.  Force cannot be excessive or improper based simply upon any technique, nor can increased liability result as a result of not properly employing a defensive tactics technique when the circumstances permit its attempt.  In fact, there is no liability created simply because a vendor states a particular technique should have been used instead of the method actually employed by the officer.  

Agencies can create a climate where liability can easily result by publishing an ill-considered policy of requiring officers to employ a particular technique as trained.  This creates a situation where failure to use an “approved technique” becomes a policy violation.  This creates tort liability in state courts.  It also results in disciplinary actions even in those situations where an officer must improvise due to system failures that did not address that particular circumstance.  This discipline will be capitalized upon by plaintiffs in federal court when the fact that the officer was disciplined will be used as leverage in settlement conferences to unnecessarily increase the value of the case.

Vendors should never be allowed to dictate policy to an agency.  Vendors have a vested interest in maintaining the agency as a client.  Beware of thinly veiled threats of de-certifying instructors should they fail to satisfy the vendor’s requirements, failing to testify should officers use non-trained techniques or methods of arrest and defense that are not approved, and of the creation of extra liability should you and your officers not adhere to their program.  This is simply a form of blackmail in order to secure an income stream for the vendor, and is unethical.  Vendors and their programs should support an agency’s policy, and while consultants may assist with policy development, it is always the policy-maker’s responsibility to provide a reasonable policy that protects all involved parties (the citizens, officers, and jurisdiction), not the vendor.  

“Approved techniques” versus reasonable force response.  Hands down, agencies should opt for policies requiring their officers to act reasonably in all circumstances.  Training in force skill domains should be looked at as guidelines for problem-solving rather than as hard and fast techniques by which officers must abide.  The phrase, “approved technique” should be stricken from the vocabulary of all police administrators, policies, regulations, and police trainers (as well as vendors).  While training standardizes behavior, officers must have the flexibility to respond to suspect resistance and violent assault, as well as changing trends in the street without having to fear inadvertent policy violations as a result of their surviving an incident.  

In the real world of law enforcement, there is no such thing as an approved technique.  Your policy and practice should require reasonable (and, if required, necessary) force responses from your officers.  Forget what your vendors tell you.  If you believe your officers are qualified to instruct, don’t send them to re-certification unless you believe they can use the update—your agency actually certifies that someone is qualified to instruct every time one of your officers formally instructs an officer.  If you believe your officer was reasonable in his force response, regardless of what technique he used, then reward him with commendations. 

Until police administrators take back their policy responsibilities, they will be controlled by the false fear of increased litigation and liability.  The Double-L’s are real in many areas of police work, but are mainly manufactured when it comes to anything approaching an “approved technique.  A “required technique ” is not to law enforcement’s benefit.  A hundred arrests of resisting suspects will require one-hundred different solutions.  Flexibility within a reasonable force response is the most realistic and valuable expectation and administrator can have.  The best and most practical standard for evaluating your officers’ force responses lies in Scott and Graham.  It is the law of the land for a reason, and it is a doggone good standard by which to evaluate your officer’s actions.

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.

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

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

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

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

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

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

STANDARDS IN FORCE

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

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

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

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

THE “FORCE CONTINUUM”

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

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

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

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

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

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

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

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

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

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

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

TEACHING OFFICERS TO REASONABLY RESPOND WITH FORCE

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

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

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

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

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

CONCLUSION

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

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

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