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Managing Force Escalations
The police report read, “I approached the subject and advised, ‘You are under arrest. Put your hands behind your head.’ The subject muttered something, took up a fighting stance and stepped toward me.”
In this scenario, the officer could be in the kitchen of a 27-year-old professional boxer under arrest for domestic assault, or in the kitchen of a 72-year-old great grandmother under arrest for a bad check. If both subjects actively resist the arresting officer, the amount of force that is reasonable to take each subject into custody will be nothing alike.
Force models often try to predict the least amount of force necessary for a situation. There is no federal constitutional requirement that an officer use the least amount of force possible or that the force option employed be necessary in an absolute sense.
In a regularly lengthening series of decisions, federal courts have held that the Constitution does not require officers to use the least amount of force possible in a given situation. It requires only that the force used be “reasonable.” In many force circumstances, perhaps 4 or 5 different response options may all be “reasonable.”
This is the fourth article in a five-part series describing strategies to reduce the need for use of force, limit exposures to liability, manage the amount of force used and positively influence perceptions of force events. This article focuses on maintaining proportionality and managing force escalations—the amount and type of force to be used and what police executives can do to help officers prepare for real-life use-of-force requirements.
Uniformed police officers often carry four or more personal defense weapons on their utility belts. Many have additional weapons in their police vehicles. Each weapon or weapon system has its own characteristics and limitations. But all weapons have the same ultimate purpose: to aid the officer in defense against attack and/or allow the officer the opportunity to take an arrestee into custody or render them less dangerous.
Use-of-force models and continuums have been developed through time to help officers manage the increased number of force options available. They achieve their goal by attempting to match the subject’s resistance behavior to the appropriate officer response. Some models give the officer discretion in response. Others are more rigid in the suggested or required response and escalation of force.
The difficulty in constructing useful models is the long list of important variables or “force factors” an officer must weigh during a use-of-force event. The difficulty with prediction lies with the variables. No simple model can take into account the number or the relative importance of each force factor present during an incident. However the officer must make these decisions as they are presented in the field. The kitchen arrest scenario vividly explains why reliance on single variable of suspect resistance is inadequate to arrive at a reasonable response.
The suspect’s known or apparent characteristics of gender, age, size, strength, condition and personal weapon proficiency (hands, feet, etc.) are the six different variables in the kitchen scenario. In a force incident, officers naturally take them into consideration when choosing between alternative responses. From an “objective” or third- person perspective, the officer’s gender, age, size, strength, condition and personal weapon proficiency are also considered in determining reasonableness or proportionality.
The weapons available to either person at the time of the conflict factor into the use-of-force calculus. If the officer has only a sidearm at hand, his choice of response is limited to either using his hands and feet or using deadly force. To prevent this limited choice and to reduce injury to the officer and the suspect, many agencies require all sworn personnel, including non-uniform officers, to carry at least one intermediate weapon with them while on duty.
Also critical to determining a force response is the suspect’s known or apparent motivation to harm or escape, propensity for violence, current condition or state of mind, combat experience and possession of a weapon.
The ratio of officer(s)-to-combatant(s) will necessarily influence the officer’s force choices. The coordinated techniques of three well-trained and equipped officers to take a single person into custody will be far different from a single officer defending himself against multiple subjects.
Finally, the place of the seizure is an important variable in the choice of force. Consider the effects the variable of the location has on the method and degree of force used at any of the following: a crowded nightclub, a sports stadium, a stairway, an elevator, a hospital, a suspect’s home, a bus or a balcony.
Use-of-force policy should resist the simplistic nature of giving pat guidance, i.e., “If a subject does X, then the officer should do Y.” Depending on the totality of force factors, the “approved” force may be “unreasonably” excessive or dangerously insufficient. Policy that is rich with multiple, well-described scenarios that consider the full range of “objectively reasonable” officer responses are a viable alternative to sterile models that do not represent the dynamic nature of use-of-force decision making.
The United States Court of Appeals decision in the use-of-deadly-force case Scott v. Henrich offered this analysis of the officers’ predicament, and explained why trying to identify the “least intrusive” or minimal use of force is not required or even wise:
“Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would have to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only.”
Managing Use-of-Force Escalations
Officer preparedness is the cure for “unreasonable” force escalations. Often, the greater the officer’s fear of the suspect, the more force he will use. Officers don’t control the threat level of the suspects they will encounter, but they do control their ability to overcome the threat. With the confidence that accompanies competency, officers can reduce their fear and better manage the escalation of force.
If preparedness is the cure, then what is the prescription? The first two prescriptive subparts—interpersonal communication skills and working knowledge of law and authority—have been previously covered. The next part of the prescription is making a positive change in our personal force factors.
Personal Force Factors an Officer Controls
An officer’s force factors of age, biological gender, height and body type are not susceptible to voluntary change. The remaining factors of strength, condition, weapon proficiency, state of mind and combat experience are areas subject to preparation efforts.
The level of fitness necessary to do police work safely and effectively is debated by informed and reasonable people. That a precise, universal, or even legislated standard of fitness has not been adopted does not mean that fitness is unimportant. Some meaningful level of physical fitness is absolutely necessary for an officer to be successful in the full range of potential police duties—especially use of force. It is also critical to an officer’s ability to deliver meaningful back-up service to another officer.
The human body does not remain “fit” without exercise. If a person is doing nothing to achieve or maintain a level of fitness, then he is losing the level of fitness he currently has. Professional officers should condition themselves to a level where they are able to confidently perform the critical physical tasks occasionally associated with police work, including use of force.
Every psychomotor skill achieved during initial defensive tactics training, and later coordinated multi-weapon systems training, deteriorates with time. If an officer was a star high school basketball player but has not touched a basketball in eight years, he would not expect to still have the same skills. Reinforcement training is especially critical in retaining skills rarely used but required during high-stress urgency.
One’s mindset is critical to success in using force, especially lethal force. Normal humans naturally resist killing other human beings, even when it is clearly justified. Still, an appropriate tactical mindset is critical to the officer’s ability to respond immediately to gathering threats.
Combat “experience” is usually developed in the controlled atmosphere of training. Training environments where the student already knows exactly what the suspect is going to do and knows the exact response he should utilize are very useful in developing single weapon proficiencies.
Training that most closely simulates actual combat decision making and deployment of force requires the student to assess an unfolding situation, decide between several available force options, and then confidently execute a reasonable use-of-force technique. This combined weapon systems training most closely approximates the field conditions where officers operate. Coordinated training where the officer is out-manned or there are multiple officers and subjects should be part of simulated real-world training.
Nothing is a substitute for the real thing. Both involved and uninvolved officers will benefit from debriefing actual use-of-force incidents. Taking time to think through the force factors present at the time and the suspect behavior and officer response allows the officer a fresh from the field opportunity to gain insight and confidence with each encounter. A conscious self-review will also improve the quality of the documentation accompanying the incident.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at email@example.com.
Captain (Ret.) Greg Seidel is the Training Director for Thomas & Means, a law enforcement training and consulting firm, and teaches nationally on the subject of police recruiting and hiring. He is also the Director of The IMPACT Project, a law enforcement human relations think- tank. He may be reached at firstname.lastname@example.org.
Published in Tactical Response, May/Jun 2011
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