Ed Nowicki
“What does reasonable law enforcement use of force and making sausage have in common?” The answer is logical.
“You want to enjoy the final product, but you don’t want to see either one being made.” The part of law enforcement which tends to be the most controversial is the use of force which, at times, has been compared to making sausage.
Today’s complex society requires that the professional law enforcement administrator deal with various issues involving the use of force. There are no secrets or magic formulas to address all potential aspects of using force. You may not agree with all “seven things” addressed in this article as answers for you and your agency. You may want to eliminate a few or add a few. Still, keep an open mind and give serious thought to not reinventing the wheel, but making the wheel go faster and farther.
1. ALWAYS, the most important thing to consider is the safety of the officers – ALWAYS. It’s true that law enforcement is inherently dangerous, but the number one concern for all should be that officers go home at the end of their shift. If officers are expected to sacrifice their personal safety way beyond the call of duty, something is seriously wrong.
Officers still need to do their job and respond to calls for service, but within reasonable parameters. Expecting two officers to wade into a fight at a music concert where hundreds of people are brawling would be ridiculous. Expecting the officers to handle this call with ample backup and the right equipment is entirely reasonable. There is a big difference between cowardice and stupidity.
2. Analyze any use of force incident as “reasonable” in addition to any department policies. Without a doubt, there is no place in law enforcement for brutal officers and policies need to address use of force. It is also possible that an officer may have violated a specific component of a department’s use of force policy; for example, using their own pepper spray rather than the department issued one and only authorized spray. If that is the case, it would be a clear violation of the department’s use of force policy and the policy violation will need to be investigated and addressed.
A clear violation of department policy, such as the use of the unauthorized canister of personally owned pepper spray, may not equate to violating an individual’s rights under the US Constitution or the respective state’s constitution. For example, the use of the unauthorized pepper spray, which is a use of force application, may be absolutely reasonable under US standards, state standards and even other provisions of the department’s use of force policy. The violation of policy investigation, in addition to reflecting a violation of policy, should also state that there were no apparent violations of anyone’s rights under the US Constitution or the state’s laws or constitution, if that is the case. The conclusion may be that the officer used a personal can of pepper spray which is definitely a policy violation, but the use of that spray was entirely a reasonable use of force under the circumstances.
The US Supreme Court in the 1989 decision Graham v. Connor (490 U.S. 386) uses the “reasonable” standard based on “the reasonable officer on the scene, rather than with the vision of 20/20 hindsight.” The issue of determining the use of force is not what the officer “could have, should have or may have done” but, whether the use of force was within the parameters of reasonable or not.
A plaintiff’s attorney may try to base a lawsuit for excessive force on a clear violation of a section of a department’s use of force policy as a prima facie case of excessive force. This may not be the case, as brought out in the prior pepper spray use example. Law enforcement administrators should remember that the US Supreme Court stated “that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation.” The Court also stated that, with the claim of excessive force, the same standard of reasonableness at the moment applies. In essence, not every push or shove is unreasonable or excessive, even if it may later seem unnecessary in the peace of a judge’s chambers.”
3. Keep an open mind to new technologies and training programs. This does not mean that you go along with every new piece of equipment or training program devised. For example, you may recall when SAP gloves, blackjacks and thumbcuffs were still being used by some police and sheriff’s department personnel.
Alternately, it took a long time for the semiauto pistol to replace the revolver for most police departments and the use of pepper spray and a TASER® as effective nonlethal force options are still not embraced by all law enforcement agencies.
4. Training doesn’t cost – it pays. Officers use both their training and experience to determine their level of control over a person when using force. If officers are not provided with initial training with any piece of equipment, they are left to fend for themselves and may become injured or they may unwittingly injure a person they are confronting. Even with a simple piece of equipment, training may seem like a waste of time and money. Using pepper spray is an example where officers should be trained to know when and how to (safely) spray a person; what it can and cannot do; how to assist the person sprayed from the OC’s effects, as well as for skill development.
In-service training is also a good idea and some states have mandated a minimum number of required training hours for all officers. Unfortunately, the minimum number of hours frequently becomes the maximum number. Why not go beyond a minimum 24 hour yearly in-service requirement by giving officers 32 hours or 40 hours? In-service training is also a time to make sure that officers have not developed bad habits in areas where they may be injured or unintentionally injure someone else. If bad habits exist, they need to be corrected.
Professional use of force training programs can also save money and anxiety. Officers will not be injured as often; workers’ compensation claims will be reduced; complaints to the agency will also be reduced; litigation should diminish; and your job may just get a tiny bit easier. Ongoing training is also the right thing to do.
5. Be prepared to deal with the media. Rick Rosenthal is an experienced journalist who conducts training programs throughout the country on media relations. Rosenthal advises, “You should keep in mind that one of the worst comments that can be made to the media following a major use of force incident is ‘no comment.’” The media may report that, “Chief Smith refused to comment.” Most media sources are “headline-driven” and the tone of a reporter’s voice may imply that the police are closing ranks or covering something up.
Telling media sources something like, “We’re thoroughly investigating this incident and for us to speculate would not be fair. We want to be certain that we do everything we can to find out exactly what happened,” makes more sense. If you don’t feed the sharks, they’ll start taking bites out of you!
6. Don’t succumb to pressure. Once you sacrifice your integrity, you are no longer worthy of carrying out your sworn responsibility. Your job is not to be liked by everyone, but you need to be fair while doing it. If an officer is right in doing what he (or she) did in a use of force incident, you need to be able to stand up to attacks by vocal members of the community with ulterior motives, political pressure or even media attacks.
You should also be able to do what’s right if an officer blatantly stepped over the bounds of using proper and reasonable force. If department discipline, employment termination or criminal charges are called for, then they should be dealt with. You should never compromise your integrity.
7. Never stop learning about use of force. Once you figure out all of the answers, they are sure to change the questions! Be aware of new laws and court decisions and how they may impact your agency. Newsletter, magazine and E-mail subscriptions and memberships in professional organizations can assist you and your staff in making your organization the best it can be.
Not only do you need to be an administrator, but you should also be a leader. Qualify with your handgun, participate in legal updates, and be the first to volunteer for new training techniques. For example, if your agency is conducting TASER recertification training, consider volunteering to feel the TASER’s effects in front of the class. The officers’ respect for you will grow.
Ed Nowicki, a nationally recognized police training and use of force expert, is executive director emeritus of ILEETA. This article is an excerpt of Ed’s upcoming E-book, The Police Use of Force Manual. He can be reached at NCJTC@aol.com.