P1 First Person: ATM, Part Two

By John Thornburg and Ed Flosi

An officer has encountered or legally contacted subject in the field. For various reasons, the subject has not complied with a lawful order phrased in a “ask” format. Nor will they comply with the “tell,” in which the officer has ordered or told the subject what they are to do. You or an officer you know have encountered this situation and came to the “freezing point” or turned into a proverbial “broken record” repeating command after command and not gaining any compliance. Now what? Here is our recommendation.

Make
Make is sometimes often the most difficult portion for officers, new and veterans alike, to understand. This is mostly due to the fact that “Make” in ATM is not a set action. Many times trainees will want “the answer” for all situations. Since the “Make” phase often involves some level of force being used on the suspect, there is no one right answer. The force used might simply be hands-on the suspect or could involve the use of deadly force depending on the actions of the suspect. All force option choices would fall under “Make” and must be reasonable based on the totality of the circumstances.

The idea of ATM was not to replace the need for force decision making training, it was to give officers a model to follow to move the contact process along in a reasonable amount of time. There is a certain need, indeed a requirement, that agencies still train their officers in force decision making under realistic conditions. This training should include the factors and guidelines set forth by the U.S. Supreme Court in Graham v Connor.

The guidelines derived from Graham v. Connor include that the evaluation of an officer’s use of force must be; (1) judged from the perspective of a reasonable officer, (2) examined through the eyes of an officer on the scene at the time the force was applied, not the 20/20 vision of hindsight, (3) based on the facts and circumstances confronting the officer without regard to the officer’s underlying intent or motivation, and (4) based on the knowledge that the officer acted properly under the established law at the time.

The analysis must also strike a balance between the subject’s Fourth Amendment right to remain free from any unreasonable seizure against the government’s interest in maintaining order through effective law enforcement. Factors included in this analysis include; (1) the severity of the crime, (2) the nature and extent of the threat posed by the subject, and (3) the degree to which the subject resists.

“Make” must embody and abide by the requirements of U.S Supreme Court’s ruling in Graham v Connor and be flexible enough to handle the “X Factor.” The “X Factor” is what prevents “Make” from being a set, pre-planned response. This is not to say officers should not mentally pre-plan their response to incidents they may encounter, they should. But to make a statement such as, “Ask, Tell, ‘Tase’” would suggest that a suspect that does not follow “Ask” or “Tell” should automatically have a TASER deployed against them. There is no way that can be reasonable all the time.

In the vast majority of the cases, “Make” turns out to simply be some sort of hands-on application. This could be a simple turning of the subject to a control hold or takedown. This of course may not be tactically sound or could be inappropriate if the officer perceived pre-assaultive behaviors from the subject or the subject introduced a weapon into the situation. This would require a different reasonable force option depending on the reasonable perceptions of the officer on the scene. For example, a suspect is being detained for public intoxication has a large glass bottle in his hand. He refuses to put it down after being asked and told to do so and in fact takes a step back and taunts the officer by shaking the bottle and asking, “What are you going to do if I don’t put it down?” It would be tactically unsound for the officer to simply approach anyway for a hands-on solution and may result in a higher level of force being used.

Trainers that decide to incorporate the ATM model into their lesson plan must be aware of the trainee that will not move to a hands-on solution ever because the suspect “might have” been armed. The trainer must correct this behavior and remind the trainee that we must act based on what we reasonably perceive, not what might happen based on hunches or feelings without objective facts to support them. Let’s be clear, our job is a dangerous one and we are certainly likely to contact someone that is armed but we cannot be overly afraid to approach someone only because they might be armed.

The advantage to an ATM approach is that in many situations a hands-on application will quickly resolve and control a situation before it escalates out of control. When officers fall into the “broken record” approach, the subject can perceive a lack of confidence from the officer to take action or to go hands-on. This can empower the subject making a situation more dangerous and possibly requiring a higher level of force. It is well documented that when officers fail to take control of a situation and the suspect, the situation can become more dangerous — and potentially deadly — for the officer.

If an officer elects to use hands-on in the “Make” phase and the subject pulls away or resists the officer’s application, then a reasonable force decision is needed by the officer. This is in no way to suggest all “Makes” should be a hands-on application, or repeated and failed hands-on applications. If a subject takes what is perceived by the officer to be a combative stance, then a different force option could be reasonable and would become the “Make.” In this instance, the officer would be reasonable in choosing to create distance and deploy O.C. spray or an electronic weapon instead of going back in to try a different hands-on technique. Remember, we are not required to meet resistance with equal levels of force. We are authorized to use a higher level — but still reasonable — level of force to overcome the suspect’s resistance.

Some will ask how ATM works with someone with a perceived mental illness or when dealing with emotionally disturbed persons. Simple, be reasonable. If an officer notices or thinks he has someone who appears to just not understand what the officer is telling him to do, a simple hands on application to turn the person to a position of disadvantage or cuffing position is all that may be needed. This would be a very minimal use of force, yet accomplish the lawful objective of the officer to resolve the situation.

Conclusion
ATM came about to assist new officers in handling situations that would otherwise end up in a “broken record” cycle of asking - no compliance, ordering - noncompliance, ordering - noncompliance, pleading - noncompliance, etc. The problem was that even after all the asking, ordering, and pleading the suspect still would not do what the officer was telling them to do. The officer with no plan to follow might falter at this point. Indeed, in training we have witnessed recruits turn a simple contact scenario into something more like a barricaded suspect negotiation. It is simple to remember:

• “Ask” the person to do something, it they refuse
• “Tell” them to do something, and if they still refuse
• “Make” them do what it is you wanted them to do

Keep in mind “X” factors can change the tactics, method of delivery, and what ultimately becomes the “Make” is based on the reasonable observations of the officer(s) on the scene. All “Makes,” regardless of the tool used, must be objectively reasonable based on the totality of the facts known to the officer at the time of the application.

A quote from Maj. L. Caudill USMC (Ret) sums up Ask, Tell, Make very nicely:

“Human beings only have two ways to deal with one another: reason and force. If you want me to do something for you, you have a choice of either convincing me via argument, or force me to do your bidding under threat of force. Every human interaction falls into one of those two categories, without exception. Reason or force, that’s it.”