Ed Nowicki
One of the most important aspects of a law enforcement officer’s duty relates to the use of force. If officers do not respond with force in certain circumstances, these officers may pay the ultimate price with their lives. If their force response is excessive, they may unlawfully take someone’s life.
NOTE: This article was written by a use-of-force practitioner and a judicially recognized use-of-force expert who is not a licensed attorney. This article does not constitute legal advice. It has been created to open dialog and analysis dealing with use-of-force policy issues.
It’s important to know how to safely and accurately shoot a firearm, but it’s just as important to know when to do so which is why the decision-making process is critically stressed during many reality-based training programs. The growing use of firearms simulators, which go far beyond traditional firearms accuracy training, is making its impact upon law enforcement training by emphasizing the decision-making process while the officers are under the stress of artificial reality.
Use-of-force training must provide officers with real-world understanding of what use of force is and how to use that force in a reasonable, yet effective, manner. Administrators must address the needs of officers to use force; to protect the community at large; and to protect any citizen, as well as the agency. This may appear to be an impossible task, but the courts have already addressed this dilemma. There are occasions when agencies prohibit their officers from using force in a reasonable manner, even though there are no laws which require this prohibition. One phrase which is all too common in many departments’ use-of-force policies is something to the effect of “officers must use the minimum amount of force necessary to control a subject’s resistance.” Can anyone please explain what is meant by the “minimum amount of force necessary?” The “minimum amount of force necessary” is an absolutely impossible standard to maintain.
The definitive US Supreme Court case which addresses use of force is the case of Graham v. Connor, 490 U.S. 386 (1989). The U.S. Supreme Court stated that officers must use objectively reasonable force, based upon the “totality of circumstances…known to the officer…at the moment force was used.”
The Supreme Court further stated that officers will not be judged with “20/20 vision of hindsight” when determining whether their actions were reasonable or not, but from “the perspective of a reasonable officer on the scene.” There is absolutely no requirement to use minimal force in this case. So, why put this impossible and unrealistic standard in a department policy, since neither the Supreme Court nor Federal Circuit Courts require this?
Some law enforcement agencies genuinely try to demonstrate their concern for human life when they add to, or modify, the portion of their department policy which deals with deadly force to include wording which officers should “exhaust every reasonable option before using deadly force.” In the 7th Circuit Court case of Plakas v. Drinski, 19 F.3d 1143 (1994), the Court stated, “There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.” Thus, officers are not required to “exhaust every reasonable option.” The proper standard should be the “objective reasonableness” standard of the Fourth Amendment as established in Graham v. Connor.
Attorney Mike Brave, Legal Advisor for the International Law Enforcement Educators and Trainers Association (ILEETA), offers, “Consider this: If an officer is required to use ‘the least intrusive means possible’ which the law does NOT require, then, cannot any use of force be endlessly second-guessed? Comments such as, ‘Officer, you should have backed off; you did not use verbal de-escalation techniques long enough; you should have used a lower level of force; you should have waited for backup; you should not have gone in until SWAT arrived; you should have summoned a negotiator; you should have done whatever I find in perfect 20/20 hindsight you did not do’ – these equate to the ‘would have, could have, should have’ standard of law enforcement use of force.”
Mike Brave isn’t the only attorney who believes that an officer’s hands should not be tied in this manner. Retired Chief of Police Jeff Chudwin, a former prosecuting attorney, states, “To hold police officers to a use-of-force standard more restrictive than that decided by the US Supreme Court and the Federal District Courts is both unnecessary and unwise. Policy statements, such as ‘least intrusive use of force,’ create ambiguity through lack of clear definition and ultimately place officers and the public at risk. Officers must have the ability to make immediate decisions where life is at risk without having to resort to force options which are neither effective nor safe.”
Unfortunately, there are law enforcement agencies which still have policies which highly restrict an officer’s response to a subject’s force, or threat of force, and also needlessly expose the officer to great physical danger if the officer wants to stay within department policy. Additionally, an officer could respond with force which clearly fits within the legal “reasonable force” guidelines, and the officer would also violate department policy. A clear conundrum exists of the proverbial “damned if I do and damned if I don’t.”
Law enforcement agencies can best protect their officers and the public with reasonable use-of-force policies which reflect current law. Policies must be developed in a reasonable manner to reflect legal standards established by the courts and not be overly restrictive by sacrificing an officer’s personal safety – no matter how well-intentioned or politically expedient the policy.
Policy standards should be developed in a manner which reflects the law of the land, such as what is included in Graham v. Connor, and not be overly restrictive. Attorney Brave adds, “Overly restrictive and highly subjective policy standards are highly unfair to officers. First, these standards are far more restrictive than the applicable legal standards of care. Second, and more importantly, these unduly restrictive standards expose officers to endless subjective scrutiny and persecution.”
Agencies must make certain that their use-of-force policy, which includes deadly force, is specifically designed with input from knowledgeable individuals which can include attorneys familiar with use-of-force law, use-of-force instructors, administrators, and rank and file; however, not from community activists with hidden agendas. The policy, first and foremost, must be anchored in current legal standards.
It may be ill-advised to just photocopy another agency’s use-of-force policy and simply replace their agency’s name with your own; that is, unless the policy is extremely well crafted. Larger agencies’ policies aren’t necessarily any better, either. Sometimes, bigger equals more screwed up! No agency should reinvent the broken wheel.
Use-of-force policies are guidelines which provide officers reasonable discretion. They should not be “thou shalt not” commandments which make it impossible to keep an officer safe and the public well-protected.
As stated in Graham v. Connor, the issue is one of objective reasonableness; that is, what a reasonable officer would do, given the known facts and circumstances. Chief Chudwin succinctly states, “When violent criminal acts fall upon police officers or the public, unlawful force must be overcome by lawful acts which meet the test of the fight, not politically correct drivel.”
Ed Nowicki is the Executive Director Emeritus of ILEETA. Ed has been judicially recognized by a number of courts across the nation as a use-of-force expert and he has trained thousands of use-of-force instructors across the nation. He can be reached at ncjtc@aol.com.