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Legal Insight: Report the whole story
How to assure your use of force is “reasonable & necessary” and avoid claims of excessive force
There you are on a Monday night, watching football. What type of commentary do you hear? There’s the “play-by-play,” a barebones delivery telling you what down your team is on and who made the play — things that, for the most part, you can already see. Then there’s the “color commentary” –the interesting stuff that fills in the gaps and puts situations in context. It brings the game to life.
The same two-tiered approach is necessary for writing police reports — especially in the case of use-of-force incidents. In addition to the facts, police officers need to document tactical considerations and special circumstances that factored into their decision to use force.
This goes well beyond window dressing; a thoroughly written report can not only save you a headache — it could save your job.
Color commentary
Robert Willis, an Instructor at Northeast Wisconsin Technical College in Green Bay, likes to say that life has a beginning, middle and an end. The same, he said, is true of police reports.
“Often, people writing the reports—or even people testifying— want to get right to what happened: He had a gun, I drew my gun, he said this, I did that…” he said.
And while the facts are a good start, they’re not enough.
“In order to find the truth,” he said, “you have to get to the totality of things.”
In other words, be your own color commentator.
The Golden Standard
A Supreme Court case called Graham v. Connor 490 U.S. 386 (1989) set the bar police reports by introducing the concept of “objective reasonableness,” which asks, based on the circumstances —as well as the experience and training of the officer involved —what would another officer have done?
In other words, an informed judgment must be made based on the perspective of the officer involved — and how will we know the perspective of the officer if he doesn’t detail it?
“In the Graham case, the Court instructed lower courts to always ask three questions to measure the lawfulness of a particular use of force,” said Police1 legal columnist Ken Wallentine. “First, what was the severity of the crime that the officer believed the suspect to have committed or be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape?”
“The Supreme Court cautioned courts examining excessive force claims that ‘the calculus of reasonableness must embody allowance for the fact 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,’” Wallentine said.
The impact of the case was huge. “The judges in this case talked about the totality of circumstances known to the officer at the moment of the decision to use force,” Willis said. “This is important because police decisions are quick decisions made in very uncertain circumstances. And who, if not the police officer involved, is going to offer this information?”
Covering your bases
P1’s use-of-force defense expert Gary Klugiewicz is fond of saying, “If you don’t write it down and it would have made you look good, it didn’t happen.”
This, according to Gary, is because information remembered and/or documented later - for whatever reason - is very likely to be attacked by the opposition’s attorneys as being potentially fabricated. They’ll accuse you of making up facts to make yourself look good, or cover your tracks.
“These days, we’re in a legal climate where it’s not just the legal justification, but the professionalism of the officer that is questioned,” said Willis.
For this reason, a conclusive report needs to set the stage so those who read it get the feeling that you had the moment you made your decision. This information supplies not only the legal justifications, but also all the tactical and environmental considerations — what goes through an officer’s mind to determine whether it’s desirable to discontinue? (i.e., why didn’t he just disengage or wait for back-up?)
Consider the following questions when constructing your report:
Legal justification (What got us there in the first place/what’s legal)
• Reasonable suspicion
• Probable cause
• Information and belief
• Warrant-
The Graham case formalized inclusion of the following points for use of force reports:
What makes you think you could control this circumstance? Was it desirable?
What happened before you decided you needed to. . .
• Draw your weapon?
• Strike with a baton?
• Spray/use a Taser?
• Elevate your voice/change tone?
• Use combat verbalization? - The battlefield conditions
• Were they behind cover?
• Did you have cover?
• How many bad guys?
• How many good guys?
• How many of you were there?
• Was he in front of you/alongside of you?
• Did he display any threatening behaviors?
• How big is he?
• How big are you?
• Are you in pre-attack posture?
• Early warning signs
• Indications of mental illness or disease
• Any concern for weapons – both the one you carried or the ones he displayed/could have displayed?
(Remember: The battlefield conditions need to be laid out prior to getting into the specifics of what level of force was used.)
Willis strongly urges officers to include documentation of verbal contact in their reports. This means documenting any attempt at verbal defusion tactics as well as why they were not feasible (i.e., situation became too dangerous, EDP wasn’t rational, etc.).
“Your case will be stronger,” he said. “This will show that you tried to use arbitration tactics, despite the fact they failed.”
Caught on tape
It’s important to remember, despite the glut of video footage out there, that the camera can lie – especially when it comes backing you up in a use-of-force incident. Think about the different environmental circumstances that can interfere with a recording: dim light, glaring light, fog, traffic noise – the list is endless. That’s why police cannot afford to rely on dashcam footage to elucidate and justify their actions. (Be sure to read The camera doesn’t lie, right? Wel-l-l-l-l-l-l..... from the Force Science Research Center.)
“Videotape is not the best evidence out there,” Wills said. “It’s from a passive point of view that’s different from the officer’s. Plus, it’s susceptible to distortion, making it difficult to gauge nuances of distance, depth, color and sound.”
The best evidence, he said, is still the officer’s description.
What a drag
No question about it, report writing is a drag— especially at 5 a.m. after a long shift; maybe you have five or six reports to write, you don’t want to work overtime, you want to get home to your family, you need to get the paperwork into court, etc.
“Report writing is not studly,” said Bob Willis. “It’s not why we went into police work. We’re not stenographers with guns.”
Still, Willis’ upshot is unforgiving: “Some officers just hate to do it. But too bad, it’s your job.”
Where the buck stops
Ultimately, Willis believes it is the supervisors who need to call for complete reports, look at each one and send it back if it doesn’t pass muster.
Officers lose their jobs over this – or worse; cops have even gone to jail over shoddy reports.
“I knew an officer who ended up in jail charged with misconduct in public office because his report failed to paint the whole picture,” Willis said. “Ultimately, it didn’t jibe with videotape of the incident.”
It’s not that the officer was trying to lie, Willis said - he just got lazy.
“He ended up in the ‘trick bag’ so bad, he lost his job,” he said.
These days, when everyone has a video camera, Willis believes that law enforcement has a professional responsibility to document what they do.
“Doctors do it, nurses do it,” he said, “Police are professionals; we need to do it too.”
