7 rules to prevent 'excessive use-of-force' accusations
How do we protect the many officers who have been falsely accused of excessive force and then libeled and slandered in the media?
As a peace officer, how many times have you thought about going to prison? Probably none. But imagine doing your job protecting the public and having to use force to arrest a resisting suspect. Imagine that you are arrested for excessive force. Months later, you’re sitting at a table in a courtroom being referred to as “the defendant” and facing years in a federal prison.
Officers who have knowingly and deliberately used excessive force should be prosecuted — just as all criminal activity should be prosecuted — but what about the many officers who have been falsely accused of excessive force and then libeled and slandered in the media? How do we protect them?
In recent years, the DOJ has placed greater emphasis on identifying and prosecuting cases of alleged excessive force. I was recently involved in a trial in which, in my opinion, the DOJ’s prosecution of the officer was clearly overzealous and unwarranted. Even though the officer was acquitted and another charge was dropped, it is a tragic, financially devastating, heart-breaking event. I don’t want you to suffer a similar fate.
1. Know the Law — Specifically, Know Graham v. Connor
All officers should be intimately familiar with this landmark U.S. Supreme Court decision regarding use of force.
If you are not, your legal training has failed you. But that is not an excuse. Look it up, read it, understand it now, and apply it always.
At the very least, be aware that Graham v. Connor established a three-pronged test to evaluate the reasonableness of an officer’s actions. These are:
1. What’s the nature of the offense (what brought the officer and suspect together)?
2. Is the person an immediate threat to the officer or another?
3. Is the person trying to flee or evade arrest?
Of these three, other court decisions have repeatedly stressed the “immediate threat” is the most critical in establishing if the force used was reasonable.
To oversimplify Graham v. Connor, you are not reasonable if you use a baton, pepper spray, TASER in dart mode, or personal weapon strikes on a person who is not an immediate threat to you or someone else.
You are allowed to use those tools if you can explain how that suspect was a threat.
2. Know Your Department’s Use-of-Force Policy
You will be asked about your department’s use of force policy. The jury will be told if you violated your policy. A violation of policy is not the same as a violation of law, but it will be used against you in an attempt to show you are either incompetent or a rogue officer.
3. Use Force Legally and to the Best of your Ability
Solve the problem quickly. I’ve seen a few cases in which officers used excessive force. But I’ve seen many more cases in which officers did not use enough force. Choosing to use less force than warranted usually leads to the situation deteriorating. It increases the likelihood of injuries to the officer and the suspect.
I’ve addressed this before but it seems to be a widespread problem in law enforcement. Never use unreasonable or excessive force, but don’t hesitate to use reasonable, lawful force to the best of your ability.
4. Write the Best Possible Report After a Use-of-Force Incident
Every single time you use force, assume you will be sued and assume you will be charged with excessive force.
With that in mind, do your best to write a complete and accurate report.
In discussions with other use-of-force experts and Police1 contributors, a common concern is that officers routinely fail to write good reports after a use of force incident.
I get it. It’s been a long day, you’re tired, you want to get home, and it’s possible nobody will ever read the report.
Please don’t think like that. Your report will be scrutinized and picked apart. A decision may be made whether or not to file charges against you based upon the contents of your report.
Writing your use-of-force report is not the time to cut corners (for more on this topic, see this article).
5. Get Help Early
Talk to someone in your department you know to be an expert on use of force and report writing. Ask for their help and guidance. Contact your union and union attorney.
6. Work Well with Your Attorney
Listen carefully to your attorney and follow his/her guidance. Your attorney can only help you if you’re completely honest. Let your attorney know everything that may be used against you. No attorney likes to be surprised in the courtroom.
You will be asked about the law, your policy, and your actions. Make sure you can talk about these in a confident, knowledgeable manner. Don’t use words you don’t understand. It may sound silly, but this is a real issue.
In one case I’m familiar with, an officer used the word “articulate” in his testimony. The opposing attorney asked the officer if he knew the definition of articulate.
Not only is this embarrassing, it also affects your credibility with the jury. Don’t try to be fancy and don’t pretend to know more than you do. Study, prepare, be yourself, and be honest.
Remember: Know the law, know your policy, don’t be afraid to use reasonable force to the best of your ability when necessary, write a complete and accurate report, get help early, work well with your attorney, and prepare to the point you are over-prepared.