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Legal Insight: Report the whole story
How to ensure use of force is “reasonable and necessary” and avoid claims of excessive force
By Brian Willis and Darren Leggatt
Every law enforcement trainer understands that simply doing what is right and using only force that is reasonable and necessary is not always enough. Officers must also be able to explain to an investigator, a judge, a jury, or any court of enquiry that what they did at that moment in time was reasonable and necessary based on the totality of circumstances. It is my experience that in the majority of incidents where officers use force to control subjects, their actions are both reasonable and necessary.
It is very common, however, for officers to struggle when they are asked to explain and justify their actions. In the past we would see them use generic statements in their documentation such as: “The subject resisted arrest and force was used to subdue him.” When interviewed, they would use such eloquent explanations as: “He was an asshole.” A quick review of the index in the law books fails to turn up the word “asshole” and it is not listed as a subject behavior category in any use-of-force model that I am aware of.
In lethal force cases, some officers simply state, “He had a knife.” The mere fact the subject had a knife is again an insufficient explanation to justify a shooting. Another generic response in lethal force situations is “I feared for my life so I shot him.” That fear is an important part of the big picture, but only a part.
Laura A. Zimmerman, Ph.D. of Klein Associates/ARA made similar observations in her 2006 paper titled Law Enforcement Decision Making During Critical Incidents: A Three-Pronged Approach to Understanding and Enhancing Law Enforcement Decision Processes. In that document she states:
“After actual incidents, officers often justify their actions by claiming that the suspect was “aggressive” or “hostile” or that the suspect was “acting suspiciously” or making “furtive movements.” These non-elaborative descriptions provide little justification for actions…”
A growing trend in North America is that officers lock into subject behavior categories on a use of force model to explain why they used a specific force response option. The officer states that the subject was assaultive and therefore he was justified in using a baton strike. While a baton may be a very reasonable option there is insufficient information in this explanation to justify it.
Administrators, trainers, and legal counsels around North America are looking for answers as to why this is happening. These answers are diverse and may vary dramatically depending on whom you ask. Some of the possible answers include:
1. Officers and agencies have become reliant on the technology such as in-car video cameras, Tasercams®, etc. which takes the story-telling power from the officer and defers it to a tool.
2. The proliferation of police unions and associations and their leaders who encourage officers to say the absolute minimum.
3. The ‘Hollywood Factor’ that results in the current generation of police officer being subjected to a cop show an hour, none of which reflect the reality of use of force events or of the profession. 4. The all too common question in training environments: “What category of subject can we use this with?”
The objective of this article is to provide some observations and present some thoughts and ideas on how we can begin to change this trend. We will begin by determining what we mean by “articulation.”
Articulation
When I talk about articulation I am referring to the ability to explain verbally and in writing why the officer’s actions were reasonable and necessary based on the totality of circumstances (the BIG picture).
Articulation is defined as:
• give voice: put into words or an expression; expressing yourself easily or characterized by clear expressive language;
• express or state clearly
• articulated: consisting of segments held together by joints
The ability to express one’s self clearly using expressive language and to join all the elements of the event together is an art, rather than a science. It is the art of storytelling and it is this art that is often missing from articulation. Story telling has been used throughout history to pass along knowledge, wisdom, and to share our experiences. Books, both fiction and non-fiction, employ the art of story telling. Movies and television use the power of multi-media to bring stories to life. Parents read stories to their children and tell stories around the dinner table and the campfire to both educate and entertain their children.
Cops tell stories about calls and arrests in an easy to understand, free flowing manner all the time in the coffee shop, the lunchroom, or over a beer with their peers. Unfortunately, when they have to tell the same story in a report or on the witness stand it becomes brief, stilted, lacking emotion and expression, and filled with ‘cop speak’. As a result they have a tendency to leave out important details that allow the interviewer, judge, or jury to form a vivid image in their mind of what the officer was faced with at 3:00 A.M. in that dark alley. The officer often comes across sounding more like a robot than a human being who did his/her best when faced with a difficult and often rapidly evolving situation in which his/her safety and the safety and well being of others was at risk.
In his book, A Whole New Mind: Why Right-Brainers Will Rule the Future, Daniel H. Pink talks about the shift in which society has over time placed a greater emphasis on facts than on stories. One of the concerns he has with this is that it runs contrary to how our minds actually work since we remember stories more than pure facts.
He goes on to state, “When facts become so widely available and instantly accessible, each one becomes less valuable. What begins to matter more is the ability to place these facts in context and to deliver them with emotional impact. And that is the essence of the aptitude of Story—context enriched by emotion.”
Pink goes on to quote Don Norman Crissply from his book Things That Make Us Smart:
“Stories have the felicitous capacity of capturing exactly those elements that formal decision methods leave out. Logic tries to generalize, to strip the decision making from the specific context to remove it from subjective emotions…Stories are important cognitive events, for they encapsulate, into one compact package, information, knowledge, context, and emotion.”
This statement by Crissply identifies the art of articulation and the need for training officers in the art of story telling.
The search for answers as to why officers struggle in their ability to explain and justify their actions must lead us to a variety of locations - including the classroom, the training room, and the range. Most importantly however, it must lead us to look in the mirror. It is my contention that we need to more closely examine the way we teach use of force to determine where the disconnect exists between the officer’s ability to act in a manner that is reasonable and necessary and the ability to articulate the reasonableness of his/her actions.
Use of Force – Continuums or Models
There is currently great debate in North America about whether or not we need to keep or abandon Use of Force Continuums. I have listened to people whom I respect on both sides and they all make valid points to support their position. Having listened to both sides, I am not convinced that Use of Force Continuums are the sole cause for the inability of offices to articulate their actions as much as how they are taught. I strongly believe that we need to eliminate the word ‘continuum’ and replace it with the word ‘Model’. The rationale for this is that the word continuum suggests an incremental application of force rather than a level of force response that is reasonable and necessary based on the totality of circumstances. The word ‘model’ infers that this is a guideline or framework to help people understand what options an officer has available based on the totality of circumstances.
The Classroom
Classroom training in use of force needs to cover a variety of areas including:
• Legal authority to use force.
• Relevant case law decisions.
• Constitutional issues affecting use of force.
• Situational factors.
• Subject behaviors.
• Response options.
• Documentation.
I believe most agencies do a good job of teaching the legal and constitutional issues. The question that arises is whether these areas be taught as part of the overall use of force / officer safety package or in isolation as part of the ‘academic studies.’ Without putting this critical information in the context of the subject behaviors and situational factors officers face on the street the legal aspects are often confusing for the officers. When addressing subject behaviors the focus needs to be just that – behaviors (not behavior categories). Many recruits now entering the profession of law enforcement have little or no experience with interpersonal human aggression so they have no frame of reference when discussing subject behaviors.
It is important then to have classroom discussions about the types of behaviors that subjects may demonstrate and where possible to show them video footage of these behaviors. These behaviors must be taken in context so it is critical that an examination of the situational factors is built into these discussions. The classroom discussions can then move to the range of response options available to the officer when confronted with these behaviors. As training progresses and officers receive more training in additional force response options the discussions can expand to include these. Ideally these discussions would be followed up with video footage of officers successfully applying each of the force options discussed.
In order to allow new officers to understand that no tool or technique is 100% effective 100% of the time, it is valuable to show video footage of officers using force response options that are reasonable and necessary but unsuccessful in gaining the subject’s compliance. This creates opportunities for them to begin to imagine what they would do next to establish control by incorporating problems solving skills into the lessons.
Communications training needs to go beyond the realm of tactical communication. It is critical for officers to have skills in deflecting and defusing aggression and the ability to resolve conflicts in the field with verbal and non-verbal communication skills. Once the situation is resolved they need skills in story telling to successfully navigate the reporting system and the legal system. Officers need the ability to make powerful presentations on the stand. Communication consultant Chez Lorincz says the three essential principles that allow a presenter to communicate effectively are:
1. Be yourself
2. Use clear thought
3. Use strong feeling
All of these principles can and should be taught to officers during use of force training and officers need to be rewarded in training when they communicate in this manner.
There have also been significant changes to law enforcement documentation over the years. As a profession we have moved away from officers writing their own reports and moved into the world of phoning in reports. Committing thoughts to paper by writing reports allowed for the details to come out and be expanded upon. In order to collect statistics many agencies have gone to check box Use of Force reports where there is no narrative. This type of report stifles the articulation abilities of the officer. Even the phone-in data entry systems are created for the ease of the officer, perhaps not allowing the details of the events to be captured and explored to the level they should be.
The Training Room
The message from the classroom must be carried forward into the combatives training area. This is accomplished in a number of ways. First, the officers must understand that the most important role they will ever perform in training is when they are playing the role of the subject. It is just that – a role they must play. They need to imagine they are the subject and display all the appropriate body language and verbiage to allow the officer to learn to read the situation and then quickly and appropriately respond to threat cues.
A question often asked in training rooms is “What category of subject can we use this technique/tool/tactic on?” This question is asked to reinforce the classroom theory and to make sure the officer can answer the question correctly on the use of force exam. The problem with this question is that it creates a direct link in the mind of the officer between the response option and the subject behavior category. When asked following an incident to explain why the officer selected that option his or her trained response becomes “because he was this category of subject.” A better question in the training room would be “What subject behaviors and situational factors would allow us to use this option?” This question creates a link between totality of circumstances and options therefore training the officers to identify and articulate the big picture. A follow up question could be “Based on those factors what other options do you have available to you?” These types of open-ended questions take away the labels, tags, and shortcuts, resulting in a greater ability for the officer to speak to behaviors and options using common language.
In keeping with the themes from the classroom it is critical to build failure drills into all use of force training. This means that officers must be presented with situations in training where the technique or tool fails to gain control of the subject and the officer must transition to another response option. Officers should also be placed in situations where they have to transition from one response option to another due to the fact that the dynamics of the situation have changed. For example following the initial baton strike an officer may end up too close to the subject to use the baton for additional strikes and it would be more desirable to use knee strikes or some other form of empty hand control.
Additionally, the messages taught in the classroom and the control tactics training room must be the same as those delivered during firearms training, vehicle stop training, building clearing training, and rapid intervention training. To this end, it is important that instructors within these fields are cross trained or at least know definitively what is taught in each area of expertise.
Debriefings
Training debriefings following scenarios or similar exercises are a great opportunity to learn from the experience, determine what we would do differently in similar incidents in the future, and practice the skill of articulation. Unfortunately, we are often so eager to get into discussions surrounding tactics that we gloss over the explanation surrounding the use of force. As a result, officers are allowed to use generic statements and simply refer to subject behavior categories from the model so the instructor can mark those off on the check sheet and move onto the ‘meat’ of the debrief. By doing this, officers are being conditioned to believe that this is an acceptable way to explain their actions.
Instructors must take the time to conduct comprehensive debriefings in order to maximize all the learning opportunities. Failing to do so is a disservice to the officer and the agency. In order to conduct full and effective debriefings however, the instructors running the scenarios must have an in depth understanding of the totality of use of force authority and articulation. They must also be familiar with what has been taught in the classroom and the training room to avoid any conflicting messages.
It is worth noting in relation to debriefings (and investigations) that one of the potential flaws in the way we examine use of force in the aftermath is that many people believe the decision made by the officer at the time is based on examining all the options available to them, precluding options that would not work and selecting the best option. Gary Klein, in his book Sources of Power: How People Make Decisions, talks about his research into recognition primed decision-making. Klein and his associates found that in circumstances similar to what officers face in the street they do not examine a range of options. They use a singular evaluation approach whereby they identify one option that will suffice to solve the problem. Klein refers to the decision-making strategy Herbert Simon (Nobel Prize winner in Economics) referred to as satisficing: selecting the first option that works. Satisficing is more efficient than optimizing - especially in situations where there is greater time pressure, dynamic conditions, and ill-defined goals, which refers to trying to come up with the best strategy.
Simulators / Videos
Many agencies are now utilizing some form of simulator technology in their training. This ranges from interactive judgmental use of force simulators to driving simulators. A use of force simulator provides a few unique opportunities to trainers. Prior to going through a complete scenario on the simulator a recruit class could be divided into two groups. Each group is brought in and shown a scenario up to the point where the officer would use force to control the subject. At this point they could be given some time to imagine in their mind what control option they would utilize to control the subject. The recruits are then sent out to independently make notes of the incident while the second group is brought in and shown a different scenario. They go through the same process of imagining their control option and making notes.
The two groups are then brought back together, paired up and each explains their scenario and response to their partner. Once both groups have had a chance to tell their story they watch the two scenarios again to see how close their explanation was to what actually occurred. This could be repeated as often as the instructors desire – in order to develop the officer’s skills in observation, note taking and articulation. The timing of the explanation and the review of the videos can vary. In some cases the entire process would take place immediately after they have finished making their notes. In other cases, the explanation could be done immediately following the note-taking and then 24 to 72 hours later the officer would retell the story and watch the video to see what effect time has on the officer’s recollection of the event.
It is not necessary to have a simulator to conduct these types of exercises. If the agency does not have simulators, or does not wish to use their scenarios in this manner, the same process can be used with video clips of incidents. Most trainers have a library of video clips they can use and if not, the videos are available from a variety of sources. The ideal method of using these clips would be to project the scenarios onto a large screen by running the video through an LCD projector. This provides the officers with a closer to real life view of the incident and makes it easier for them to imagine being there. If this is not possible, the video can be shown on a television.
Trainers can also become creative and utilize cameras to shoot videos of different subject behaviors and actions which could be used at specific times in their programs. It is not necessary to have hi-tech video equipment to complete this task. The purpose of the video is to expose officers to subject behaviors and allow them to begin to learn to observe, respond, document and then tell the story. Actors from the local college, family members, or plain clothes personnel can play the roles of the subjects in these videos. If these people are utilized, it is important to ensure they understand the behaviors that are necessary for the video segment.
Similar articulation exercises could be utilized with driving simulators in which the officer is involved in a pursuit followed by note taking and articulation exercises. For agencies utilizing both driving and use of force simulators it is beneficial to have them at the same location so the officer can transition from the driving simulator to a use of force incident.
The Challenge
The challenge then to all use of force instructors is to find better ways in which we can not only enhance the decision making skills of officers but also to put the ‘art’ into articulation. It is not enough to make good decisions, the officer must also be able to explain in common language why, given the totality of circumstances, the decisions they made and the actions taken were reasonable and necessary for them.
About the Authors
Darren Leggatt
Darren Leggatt is an 18-year veteran law enforcement officer with a major Canadian police agency. He is currently the Sergeant in charge of the development and delivery of Officer Safety, Subject Control Tactics, Emergency Vehicle Operations, Incident Command, Use of Force and Communications training for his agency of over 1600 sworn officers.
Darren’s career has been mostly operational in nature, spending more than 8 years as a police dog handler and trainer, with an expertise in high risk tactics and explosive detection. He has planned operational tactics for explosive detection and sanitization surrounding 9-11, The G8 Summit, and the Royal Visit 2005. Darren has also served as a Search and Rescue Management Specialist for his agency for over 10 years, coordinating numerous urban based search and rescue operations.
Darren has various instructor level certifications in subject control techniques, less lethal munitions, chemical munitions, vehicle operations, and officer safety tactics. He is currently working on a Risk Management and Emerging Leaders Certificate from the University of Calgary.
Brian Willis
Brian began his law enforcement career in 1979 and over the next 25 years he worked as a patrol officer, tactical officer, patrol supervisor and trainer. From 1995 to 2004 he was the head use of force trainer with an agency of 1500 officers responsible for researching, developing, instructing and overseeing the Officer Safety, Subject Control Tactics, Crowd Management, Incident Command and EVOC programs. Since his retirement in November 2004, Brian has served as the President of Winning Mind Training Inc., an innovative training company focused on performance enhancement and helping individuals and organizations in the Pursuit of Excellence. In 2005 Brian was the recipient of the first Lifetime Achievement Award presented at the Canadian Officer Safety Conference in recognition of his contributions and commitment to Officer Safety in Canada.
In addition to numerous law enforcement certifications Brian has a Certificate in Adult Learning from the University of Calgary and Mount Royal College. He has given presentations on mental preparation and conditioning at numerous international conferences and is sought after as a speaker across North America for his dynamic and innovative presentations on achieving personal and organizational excellence in addition to be a contributing writer for the book Warriors: On Living with Courage, Discipline and Honor, he is the editor and a contributing writer for the books W.I.N.: Critical Issues in Training and Leading Warriors and has had numerous articles published in law enforcement periodicals. Brian serves as an Advisory Board member for the International Law Enforcement Educators and Trainers Association (ILEETA), ForceOneReadiness.com, and served as a member of the National Advisory Board for Police Marksman Magazine from 2000 to 2007. He is also a member of the National Tactical Officers Association, the Illinois Tactical Officers Association, the International Association of Law Enforcement Firearms Instructors, American Women’s Self Defense Association and the Canadian Association of Professional Speakers.
Brian has trained law enforcement trainers from the FBI, DEA, RCMP, as well as trainers from state, provincial and municipal agencies in New York, Florida, Louisiana, Illinois, Arizona, Washington State, Alberta and Saskatchewan in his cutting edge Excellence in Training program. He has also worked with martial artists, competitive shooters, athletes and coaches from a variety of sports including hockey, volleyball, bull riding, figure skating, running, biathlon, and golf on harnessing the power of the mind and enhancing performance.
Brian worked as a volunteer mental preparation coach with Canadian amateur boxing champions in four weight classes, a 2004 Canadian Olympic Boxing team member and four gold medal winners from the prestigious Ringside Boxing Tournament held annually in Kansas City. He can be contacted through his websites at www.winningmindtraining.com, www.warriorspiritbooks.com, or by e-mail at winningmind@mac.com.