This use-of-force model can beat attorneys and win juries
Too little force may result in the injury or death of an officer, and too much force may take you off the street and even behind bars
The Dynamic Resistance-Response Model (DRM) is a use-of-force model designed by Police1 Columnist and former Special Agent Chuck Joyner. One of many differences between this and the typical ladder and continuum models is that the public and juries tend to understand the thought process of police when they explain their situation using the DRM model.
The problem with continuum models is that they tend to start after the first offense has happened (much like the videos that surface of subject encounters with police). The jury needs to start the timeline with what the offender did first.
Risk assessment research by Butler and Hall (reported by Force Science Institute) has said that the order of "safest to most dangerous" tactics for both suspects and police goes as follows: OC spray, carotid type of restraint, ECD, empty-hand techniques, and impact weapons. Another study conducted by LAPD Sergeant Greg Dossey also concluded that closing with a suspect and going hands-on was one of the most dangerous options for an officer.
Evaluating the Threat
As Joyner put it, courts don’t try to determine which option is worse — they “lump all of these uses of force in the same group as likely to cause injury and severe pain, so the courts have consistently indicated the officer needs to articulate a threat to the officer or another person prior to using” use-of-force options.
"If you pepper spray a person but you can’t articulate the threat, you’re going to write a big check," Joyner said.
Using the DRM model, the subject categories for threat levels are:
1.) Compliance/ no resistance
2.) Non-threatening/ passive resistance
3.) Threatening/ aggressive resistance
4.) Deadly resistance
The first thing that you need to ask yourself is, "Do I feel threatened?"
The key to deciphering non-threatening versus threatening resistance is to answer this question. This is crucial when both articulating in a report as to why you used the force you did, and to gaining the public’s and/or the jury’s understanding of the cause for your actions.
"Officers never control the amount of force used; it is always determined by the actions and level of resistance of the suspect," said Joyner. "The officer responds appropriately to the level of resistance."
In the DRM model, all signs point inward because the ultimate goal is always to gain compliance or control. Too little force may result in the injury or death of an officer, and too much force may take you off the street and even behind bars.
Defending Against an Attorney’s Attack
Graham v. Connor set the standard for objective reasonableness in a use-of-force scenario, when it was decided that the said reasonableness standard should apply to a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other "seizure" of his person.
All use-of-force models then should reflect Graham v. Connor, which can be measured by answering the following:
1.) What is the nature of the offense?
2.) Is there an immediate threat?
3.) Is the subject attempting to flee?
Presenting an empathetic and relatable train of thought to a jury is only half the battle. Attorney’s don’t do empathy.
There are three easy targets the plaintiff’s attorney will go after when fighting law enforcement in court:
• Policy: Your department’s policy cannot conflict with the law, and it cannot be out-of-date
"Attorneys salivate when they see the words ‘employ the least amount of force possible’ [in your department’s policy] because they can always prove that the amount of force could be lesser," said Joyner.
• Training: Attorneys will try to prove that there is a lack of training, inadequate training, poorly documented training, and a lack of refresher training
• Documentation: The easiest way to disprove the latter allegations is to have proper documentation proving that your training is adequate and up-to-date
Joyner said, "You may have the best training in the world, but if you didn’t document it, it didn’t happen."
Train, Track, and Review
The following questions are going to be asked of you by an attorney, so ask yourself each of these and be sure you can answer them:
1.) How successful are your current DT programs?
2.) How are they structured? What happens when officers lack the necessary skills?
3.) What are your instructors teaching?
4.) Does this training comply with the law?
5.) How often do you have refresher training on DTs? Impact weapons? TASER? OC? Personal weapons?
6.) Do you have lesson plans? What is in the lesson plans?
7.) How is consistency of training ensured?
8.) Is attendance recorded?
9.) How is competency tested?
10.) Do your officers know the law? How do you know?
11.) Where is all of this documented?
Does your sergeant review your use of force reports? If he or she doesn’t, find someone who will and who is good at it. It’s going to be read by a judge and a jury, and it is your job to educate them on the proper response to the threat you faced through your report.
You — and your fellow officers — need to be confident and knowledgeable. Teach core concepts, test your officers, and prove that they are competent in their training.
Document your training, have lesson plans, and stick to those lesson plans.