Editor’s Note: This week’s PoliceOne First Person essay is from PoliceOne Member Kevin Sailor. In PoliceOne “First Person” essays, our Members and Columnists candidly share their own unique view of the world. This is a platform from which individual officers can share their own personal insights on issues confronting cops today, as well as opinions, observations, and advice on living life behind the thin blue line. If you want to share your own perspective with other P1 Members, simply send us an e-mail with your story.
By Kevin Sailor
Police1 Member
I recently had an officer bring to me a warrantless arrest affidavit to be notarized. This is required in my jurisdiction anytime a warrantless arrest has been made and the person is being jailed on the charge.
The event involved a subject who had committed a shoplift from a retail establishment. When confronted by the store’s loss-prevention agent, the suspect fled on foot.
One of our officers spotted the suspect running across the parking lot. He also confronted the suspect and ordered him to stop and get on the ground. The suspect did stop running but refused to go to the ground. The officer then used a straight arm-bar takedown technique to force the suspect to the ground, which was asphalt pavement.
The suspect offered no further resistance and was handcuffed without incident.
In reviewing the affidavit, I noticed the only charge was theft and there was no mention made of the verbal non-compliance or use of force by the arresting officer (the officer preparing the affidavit was not the same one who made the arrest).
The arresting officer had briefed me on what had taken place so I could complete a use-of-force report. I advised the investigating officer that an Obstruction of a Police Officer charge needed to be added and sent him back to amend his affidavit.
When speaking with the arresting officer, I questioned him about not charging the Obstruction charge. He told me since the suspect was not injured and wasn’t complaining of injury he didn’t think it was necessary. I advised this young officer that it was necessary, both for his protection and the protection of the agency.
I have seen this happen way too many times in my career.
Officers — trying to be “Mr. Nice Guy” — overlook what they perceive as minor resistance, so they don’t charge appropriately. More times than not, this will come back to haunt you, either in the form of a citizen complaint, or worse yet, civil litigation.
For over ten years I have acted in the capacity of an expert witness, defending officers’ use of force in civil litigation (primarily when involving an ECD — Electronic Control Device). With many of the cases in which I have been involved, the officer(s) did not file appropriate criminal charges when physical force was used.
This is a recipe for disaster.
While we may have the perception that the use of force was negligible, any use of physical force, particularly in the civil arena, is a big deal. In my opinion, it is not a wise use of discretion to play “Mr. Nice Guy” (or “Ms./Mrs. Nice Gal”) and then fail to back up your use of force with an appropriate criminal charge.
Here’s the rub: When you fail to charge appropriately when using physical force, the question then becomes, “Why did you use force?”
If the situation wasn’t serious enough to tack on an obstruction/resisting arrest charge, then it probably wasn’t serious enough to use physical force to begin with. A good rule of thumb to follow is if the use of force could or is likely to result in injury, then an appropriate criminal charge should follow.
In the civil realm in particular, defending yourself can become difficult when you don’t have a criminal charge to support your use of force. Litigation may even be avoided by adding the appropriate criminal charge that covers you for using force. You might still get sued or have a complaint filed against you, but defending your actions is much easier when you have charged appropriately to cover your use of force.
I’ve also had officers tell me they didn’t charge for obstruction/resisting because after the use of force, the suspect became compliant and/or cooperative.
This is not relevant to the decision to charging someone appropriately. You have to consider what the actions were that led you to use physical force to begin with. Anything that took place after-the-fact should have no bearing on your decision to file criminal charges in situations that required you to use force.
Let the mitigating circumstances be determined by a judge, not you.
In this case, although the suspect was not complaining of injury at the moment, he could very easily come in the next day and make a complaint. He was after all, taken to the ground on a hard surface making injury possible and maybe even likely. It then becomes problematic to add a charge of Obstruction/Resisting, as it would look like retaliation on the part of the police.
The bottom line is this: We all know that “Complacency Kills” in respect to officer safety. Complacency also “kills” in the sense of needlessly creating liability when we don’t use good judgment in deciding to overlook minor resistance (even verbal non-compliance). When resistance, however slight, leads to using physical force on someone, it is my opinion that criminally charging appropriately is required.
Playing “Mr. Nice Guy” is likely to come back to bite you in the posterior.
Stay safe everyone!
About the Author
Sergeant Kevin Sailor is a 33 year veteran of the Westminster Police Department. He has been a Sergeant for 28 years and has served assignments in Patrol, Traffic and Investigations. He served as a Deputy Sheriff for 1 ½ years with the Adams County Sheriff’s Department and also served four years in the U.S. Air Force as a Law Enforcement Specialist.
Sergeant Sailor is the TASER coordinator for the Westminster Police Department and is charged with administering the TASER program for the department. He is also a Senior Master Instructor for TASER International, the company that manufactures the X26 and X2 TASER used by the department. He is one of only 26 Senior Master Instructors in the world and was among the original eight persons who were selected when this position was first created in 2004. He has traveled about the country teaching TASER Instructor classes and performing other duties for TASER International. He also is used as a court expert witness for law firms defending police use of the TASER.
