P1 First Person: How to effectively review and adjudicate use of force tactics

By Scott L. Sargent
Los Angeles Police Department

The use of force by police in a modern society is a serious issue and is subject to significant internal and external scrutiny. Historically, the law enforcement use of force review process has been based on a traditional, subjective, 20/20 review process. However, the Supreme Court decision in Graham v. Connor, 490 U.S. 386 (1989) provided a much needed foundation for agencies across the country to develop consistent and fair use of force policies based on objective reasonableness when seizing free persons under the Fourth Amendment.

Importantly, while the court in Graham specifically applied the Fourth Amendment to the seizure of free persons (not in custody), a different analysis may take place, at least civilly, where force is used against persons who are in custody, incarcerated in a jail, or in a prison setting. For example, persons who are classified as pre-trial inmates or detainees (holding cell, etc.) would fall under the 14th Amendment; while those in a prison/penitentiary environment may be subject to Eighth Amendment standards. Accordingly, this article will involve the adjudication of use of force incidents strictly under a Graham standard.

The concept of objective reasonableness is not difficult to comprehend and even embrace. However, incorporating these concepts into organizational practices may present a challenge. Also, agencies traditionally place less emphasis on the review of tactics, often out of concern over appearing hyper-critical of officers. However, through broad, post incident assessments, agencies can identify lessons-learned based on professional best-practices, and, incorporate those lessons into future officer and organizational performance objectives. In the end, the assessment of individual and collective tactics surrounding the incident is crucial to any effective incident review process.

Consequently, there are four key areas where agencies should focus:

• Policy – How should a use of force policy (or policies) be written to ensure simplicity and understanding, while maintaining critical standards?
• Training – How do you train officers to use force which is objectively reasonable?
• Adjudication – How do agencies adjudicate use of force incidents without Monday morning quarterbacking or applying their own subjective 20/20 hindsight?
• Tactics – How and when does an agency conduct a formal review of the involved tactics?

Policy
Depending on agency practices, there is a difference between policies, and procedures or guidelines. Policies set the standard(s) for agency expectations and provide clear operational rules. However, procedures or guidelines provide the direction for how those policies are to be carried out. These have fewer mandates or prohibitions, but are focused on stating how the rules should be implemented and are the basis for related training. Example relative to use of force, are TASER or baton use guidelines (how and when etc.).

Also, organizational leadership from the top down is an essential component to the implementation of any organizational change, including the introduction of a new use of force policy. If formal or informal leaders are sending a message to officers that contradict policy or guidelines, significant problems and confusion will result.

Use of force polices should strive to reflect national best practices and consistency with federal law; this simply means using Graham. If agencies do develop a Graham based policy, they should strongly consider using the language of the Court in doing so. When attempting to paraphrase or modify this language, confusion can follow by officers, supervisors and adjudicators. Consequently, objective reasonableness is just that; adding terms like necessary, minimal or least intrusive to such a policy is actually contradictory, and will confuse officers and attorneys defending the agency in civil or employment actions.

For efficiency and simplicity, the use of force policy should be broken down into separate parts beginning with a guiding principal, which can interject the courts rationale such as, objective reasonable.. in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation...from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

The general use of force policy itself can then simply state language to the effect of, Officers are authorized to use that force which is objectively reasonable to defend themselves or others, effect an arrest or detention, overcome resistance and or prevent escape. However, the new policy must be supported with both in-service and academy level training, which incorporate the three basic Graham factors:

• The [severity of the] crime at issue
• Whether the suspect posed an immediate threat to the safety of officers and or others
• Whether the suspect was actively resisting arrest or attempting to evade arrest by flight

Additionally, the following factors which were contributed by subsequent court decisions must be part of the process:

• The number of suspects and officers involved
• The size, age, and condition of the officer and suspect
• The duration of the action
• History of violence by the suspect, known by the officer at the time
• The suspect’s mental or psychiatric history, known by the officer at the time
• The use of alcohol or drugs by the suspect
• The presence of innocent bystanders
• The availability of other tools/weapons (OC Spray, TASER etc.)

Furthermore, a deadly force policy should be separate and developed with consideration and thought, as to the intent of the policy and the impact on the organization and the community? There are a variety of considerations to developing such a policy depending on the degree of restriction the agency wants to place on officers. Authors must use care in selecting terms such as lethal, substantial, serious or great bodily injury, as they all may have different meanings or legal interpretations. Additionally, agencies should consider revising or republishing policies on warning shots, tactical shots (cover fire, street lights, etc.) and shooting-at-moving-vehicles, to ensure consistency with the new use of force policies, and with national best practices.

For efficiency, all of these policies and use of force related protocols should be contained within one single policy document for consistency and ease of implementation. The actual training procedures, protocols or guidelines can be distributed through a separate peocess as they tend to be living documents which can change over time (TASER or baton directives or bulletins etc).

Training
Training line officers to use objectively reasonable force may be a confusing concept. However, the basis of the training is the reinforcement of an officer’s ability to demonstrate a level of skill and critical thinking necessary to confidently use that force which is reasonable, and proportionate to the suspect’s actions. The key is that the individual officer be able to articulate their reasoning for using force, and for electing that specific force-option. The premise for Graham is that objective reasonableness … is not capable of precise definition or mechanical application. Therefore, training must rely in part on agency procedures and be founded in scenario-based training and critical decision making.

Most importantly, trainers should avoid using terms or concepts such as minimal or minimum force, necessary force and or least intrusive force, unless these are part of a well considered training protocol supported in policy, as they infer continuum-based training and are counter to Graham. However, this does not mean that escalation/de-escalation concepts cannot be part of the training process. Critical focus should also be place on effective threat assessment through scenarios, ensuring that the force options(s) are commensurate to the force.

Also, training must incorporate the agency guidelines for the individual force options into each scenario (i.e. TASER use protocols). Also, possible deadly force scenarios should including non-lethal and less-lethal environments (i.e. man drops knife but charges at officer). Again, a critical part of training is the ability to articulate verbally and in their written report, specifically why force was used and why officers elected to use the force that they used, at the time they used it.

The advent of computerized training with systems such as the Firearm Training Simulator (FATS) and the newer Force Options Simulator (FOS), have helped to develop critical thinking skills by subjecting officers to every type of use of force scenario. Importantly, the training process is not complete until officers are able to confidently articulate the specific actions and behaviors of the suspect and, why they reacted as they did. Those reports should clearly discuss the three basic Graham considerations and eight additional factors as they become relevant.

Adjudication
While Graham is used proactively in developing policy, the actual decision is based on post-incident review. In reality, the final adjudication of a use of force incident is the critical bottom-line, which impacts the community, the organization and certainly the employee. Using a Graham based process for adjudication means ensuring an objective assessment of the officer’s perception, but not their subjective intent. Administrators conducting the use of force review should also analyze the incident without subjective bias. They should endeavor to view the incident from the perspective of the involved officer (his or her perceptions of threat and the force actually used), as compared to a reasonable officer (officer with similar training and experience) who is faced with similar facts and circumstances.

Additionally, the officer’s actions must be viewed in light of the agencies standards, including policies, procedures and training. Essentially, the goal is to avoid the 20/20 hindsight and Monday morning quarterbacking that the Court condemns, by putting the adjudicator in the shoes of the involved officer. This means the adjudicator should avoid applying his or her opinions as to what force shoulda, or coulda been used, and remain focused on the reasonableness of the force that was actually used.

As easy as this all sounds, this can be a difficult transition for agencies that are accustomed to feeling their way through an adjudication based on personal beliefs, experiences and opinions, without regard to the officer’s perceptions or the reasonableness of his or her actions. The following is a simple example for building an objective and fair adjudication process.

An effective method is to have various levels of force defined, such as Level I, Level II and perhaps Level III. Level III may be lower levels of force; Level II may be those with complications or serious injury and Level I may be deadly force (or vice-versa). Staff persons may adjudicate Level III and II and a board or committee may review Level I.

Generally, one entity or individual (administrative position) with relevant operational experience and a skill for objective, independent administrative insight should be selected to conduct the review and adjudication (or to make recommendations to the final adjudicating authority). When various, differing staff personnel are tasked with this important responsibility, a range of different recommendations can follow. That inconsistent review can result in an conflicting or biased application of standards, and can be tainted, depending on the background, training and experience of those reviewers. Also, the agency should strive to select the individual or process which will have credibility with line officers, while having minimal negative impact on morale. However, it is the background, experience and training of the officer involved and not the reviewer that is critical.

Consequently, the goal is a process that is consistent, fair, objective and free from bias. If a Use of Force or Critical Incident Review Board (Board) is used, it should consist of various staff personnel and representatives from the officer’s peer group. Also, a representative from the officer’s union or employee association should be considered for inclusion even if only as an observer. Smaller agencies may want to consider using members of outside agencies as Board participants.

Below is a general model for adjudication with examples:

Use of Force

I – Classification of force

• Identify all force used by involved officers

II – Analysis for each use of force, by each officer

Note: Force options can be identified individually (i.e. each baton strike), by grouping (three punches) or sequence (two sequences of fire comprised of two rounds each). For example:

Officer Smith Level III Four baton strikes to the left knee
Two baton strikes to the right ankle

Officer Smith Level I One intentional baton strike to the head

Officer Jones Level I First sequence of fire – Four .40 Cal rounds
Second sequence of fire – Two .40 Cal rounds

• What was the rationale for each use of force

A.) Reasonableness of PERCEPTION (was the threat assessment/belief reasonable)

Would an officer with similar training and experience (a reasonable officer) perceive the same threat (i.e. mistake a lighter for a gun under same circumstances and with similar facts)

B.) Reasonableness of FORCE used

Would an officer with similar training and experience who reasonably perceived that threat, use the same force option

Note: This does not restrict an officer to that specific force option, or preclude the use of other options. Remember, we do not evaluate what the officer could have or should have done in our eyes; we evaluate the force he or she actually used.

If the answer to either question is no, the adjudication may result in a finding or recommended finding, of out-of-policy for that specific force option. If the answers are yes, the force would be in-policy.

Tactics
From January 2008, through the date of this writing, 463 officers have died in the line of duty nationwide. Of those, 183 were the result of gunfire or other suspect-assaults. Within the first two months of 2011, there were 20 officers killed across the country, 12 of those death were a result of suspect-assaults, all but one by gunfire.

Consequently, we must individually and collectively endeavor to protect the lives and safety of law enforcement personnel within our sphere of influence. This is where an honest and objective evaluation of tactics comes into play. We owe it to our employees to tell them what they did right and where they can improve.

An essential component of conducting any critical incident review is to identify lessons learned from the incident. Also, a best practice(s) approach to tactics is to develop a formal adjudication process which reinforces established agency standards. Officers are essentially held accountable to apply the tactics that they have learned, and to operate within the guidelines of acceptable organizational conduct.

One method is to determine if the tactics used were consistent or inconsistent with approved standards; or objectively reasonable based on the officer’s experience and training, and the established policies and guidelines. Examples of adjudication terms can include:

Approved Tactics

• Administrative Approval
• Tactics-Consistent with agency standards
• Tactics-No Further Action
• Tactics used were objectively reasonable

Disapproved Tactics

• Administrative Disapproval
• Tactics inconsistent with approved agency standards
• Tactics-Agency Action (training etc)
• Tactics used were not objectively reasonable

Reasonable tactics (Overall analysis)

• Would an officer with similar training and experience, employ the same (or similar) tactics in this incident when faced with the same or similar facts and circumstances?

This analysis can be broken down by time or event and should be specific to either an individual officer or a group of officers (partners etc.). Also, this assessment does involve subjective insight by the reviewer. It is critical that the manager compare the officer’s actions to established agency standards (policies, procedures and training). However, as much as possible, the adjudicator should stand in the shoes of the officer when reviewing the case.

A benchmark must be developed to determine when the overall tactics become objectively unreasonable or inconsistent with agency standards. Remember that critical incidents are dynamic and officers are forced to make split second decisions in tense, uncertain and rapidly evolving circumstances. Each tactic employed may be individually assessed; however, because tactics are often not based on specific policies, the adjudication must be based on written, often general guidelines (i.e. baton-use) and related training; but that adjudication must always be flexible and based on the facts and the circumstances specific to the incident.

In many circumstances, officers need to be creative to solve a problem and use tactics that may not be trained or written. Consequently, it is difficult to determine if the tactics used overall comport with written standards in every case. Therefore, determining the objective reasonableness of the tactics used, allows a fair benchmark to formally adjudicate the incident. Ultimately, a reasonable officer under the same or similar circumstances would or would not use those tactics in light of the established agency standards and training.

The following are examples of specific inquiries that can be made to assess tactics:

Did the officer(s):

• intentionally separate from each other
• create a cross fire with 360 degree approach or containment (lack of planning)
• give appropriate warnings when required and reasonable to do so
• fail to await additional officers when it would have been prudent to do so (approach alone)
• fail to take advantage of available cover or leave cover
• put themselves at-scene as required and update location when changed
• have required or necessary equipment (TASER, ballistic vest etc)

Established adjudication protocols should detail a range of available outcomes or remedies. These can be based on the number of issues or severity or degree of deficiency. When tactics are inconsistent with standards or not reasonable, the result or outcome from the adjudication can be:

• No Action
• Minor or Informal Training
• Major or Formal Training
• Discipline
• Other (Counseling, etc.)

Here is an example of a tactics adjudication with a negative outcome:

Tactics — One officer with no negative history approached a known violent narcotic suspect alone, a fight ensued and officer who was injured had to put out a help call. The officer had no explanation or justification for doing so.

Standards — While no written standard exists covering this issue, training clearly supports that solo officers should never approach a violent suspect without requesting additional officers (back-up), and a TASER or other force tools where appropriate.

Analysis — The involved officer intentionally failed to follow his training without any reason for doing so and his tactics could have resulted in his serious injury.

Finding/Outcome — The officer’s tactics substantially deviated from approved agency standards without justification (or were objectively unreasonable)

Incident Debriefing
One important component of any learning-organization is constant review of actions and process. Each agency should reinforce the use of the tactical or incident debrief process. Such a protocol should be used after all critical incidents and can be used for individual use of force incidents. At the least, agencies should require a debriefing with substantially involved employees after a critical incident such as a deadly force encounter, assault on an officer, high speed pursuit, critical call for service, or a, hostage/barricade or similar incident. These debriefings should be held as soon after the incident as possible unless a formal adjudication is involved. In those cases, they should be conducted subsequent to the formal disposition of the incident.

Appeal Rights
Administrators should consider the impact that any of the described adverse actions will have on the employee. Because, an adverse action such as an out-of-policy use-of-force finding or Administrative Disapproval for tactics will impact the officer in various ways, the agency should develop an appeal process to ensure the officer’s rights are respected and they are able to be heard on the matter.

One method is to provide a forum for use of force cases where a recommendation for Out of Policy or Administrative Disapproval is made and where the final adjudicating authority will make the decision. At that forum (Force Board etc.), the officer or his or her representative may be afforded an opportunity to address the Board. Similarly, a Skelly type process can be developed to ensure that the officers feedback is considered prior to implantation of any negative outcome. Importantly, legal counsel for the agency or government entity should be involved in developing these polices and guidelines.

Note: The views and opinions expressed in this article are those of the author and not of the Los Angeles Police Department or any other agency. Scott L. Sargent is a 29 year veteran of law enforcement and is currently a Captain with the Los Angeles Police Department. He can be contacted at sargentlaw@gmail.com.