Throughout policing history, officers have begun their shifts with briefings. These pre-shift gatherings have traditionally focused on crime statistics, wanted criminals, and discussions about officer safety and tactics. Now, those conversations have changed to what police officer, in which state, was charged with excessive force. A secondary topic of discussion might be on new restrictions in department policy on the use of force or new state laws that remove protections afforded by qualified immunity.
Unfortunately, there is little you or I can do about any of those things – except by becoming an expert on them. My experience as a police trainer and use of force consultant has taught me that far too many officers have difficulty articulating their use of force as required by law and policy. Therefore, as use of force legal standards and agency policies are revised, officers need to increase their professional knowledge on this topic. Failure to do so can and has resulted in adverse outcomes no officer wishes to experience.
This article provides strategies for creating use of force expertise. The reading recommendations are not legal advice but do represent briefing topics/training to discuss with your supervisor, leadership and possibly your local prosecutor. Once knowledge is established, I suggest recurring monthly training in the form of tabletop scenarios that allow for the application of what has been learned. The intent is to create patrol supervisors and officers who have a comprehensive knowledge of the legal standards and agency policy on use of force.
REQUIRED READING AND STUDY MATERIALS
The following reading and study suggestions should be well-understood before continuing on to the scenario portion. While I recommend these sources, don’t limit yourself as there are several other reputable resources available online.
1. Officers should have a thorough understanding of both reasonable suspicion and probable cause. These are what my friend Lt. Jon Domingo (ret.) refers to as “The Platform.” Officers require a firm articulable platform to use reasonable force. The standards are universal across the U.S. and thoroughly discussed in the following documents:
- Investigative Detentions – Detailed description of reasonable suspicion with examples. [1]
- The Principles of Probable Cause – Detailed description of probable cause with examples. [1]
- Terry v. Ohio, 392 U.S. 1 (1968) – Detailed description of searches during a detention.
2. Officers should read and understand their state legal standards on police use of force AND/OR civilian self-defense standards. This self-study recommendation includes a comprehensive review of the associated jury instructions when applicable.
These state-specific documents can likely be found online. However, your local prosecutor may assist in obtaining the appropriate jury instructions if they exist. Also, some prosecutor’s offices release memorandums outlining the legal standards that guided their charging decisions on local officer-involved shootings. These memoranda provide valuable insight into understanding your prosecutor’s perspective on what is considered objectively reasonable force. See an example here.
3. Officers should have a well-rounded understanding of key U.S. Supreme Court decisions that have guided officer use of force for over 30 years.
The Federal Law Enforcement Training Center offers a series of podcasts and narrative documents that detail relevant court decisions.
4. Lastly, officers should have a thorough understanding of agency policy regarding the use of force and contextually related topics.
Agency policy is location specific and should be at least, if not more, restrictive than applicable federal and state law. Officers should consider using the policy narrative as a checklist when they write reports or otherwise articulate force. Using policy as a checklist can also ensure violations are fully explained rather than left out of reporting.
TRAINING SCENARIOS
Body-worn camera footage and other investigatory documents related to use of force provide a fantastic resource for tabletop training. The idea is not to second guess or find fault in other officers’ decisions or actions. Instead, this training is oriented toward applying your state law, agency policy and even community expectations to real-world situations to improve performance.
Preparation
These scenarios do require planning. The facilitator must gather an exemplar use of force video and identify key learning objectives, some of which are defined below.
The scenario will require a lead-in narrative based upon the actual event or information created to meet the learning objectives and the video content. Decision-making stop points should be identified that align with the learning objectives. For example, stop points may be determined for when probable cause is reasonably clear and later when de-escalation tactics might be a reasonable option. Stop points may be placed for various tactics and force options as well.
Once the facilitator has taken these preparatory steps, it is time to present the training.
Facilitation
The facilitator should brief officers on the call or situation and run the video to the stop point (or points). Stop points are where a reasonable officer should recognize the need to make a decision (force or pre-force).
The facilitator then tells students they have a minute or two to bullet point on paper what they would do next. There is no discussion or teamwork during this time.
Once the time is up, officers can each explain their answers and support them with legal standards and policy.
After the initial round table of answers, an open discussion can occur. The facilitator may then drive the conversation to other learning objectives or play the video to the next reasonable decision stop point.
Here is a list of essential learning objectives that will guide the development of decision points (not all-inclusive):
- Identify and articulate the reasonable suspicion/probable cause for the initial contact and all crimes committed during the police-citizen interaction: For example, the initial crime may be petty theft, but the suspect ran and ultimately fought the officer. Each of these actions may be a new crime and related to the totality of circumstances. In many cases, the crime committed is causally linked to the force used (i.e., assault with a deadly weapon).
- Identify opportunities to de-escalate the situation (if possible): Before the use of force, did a reasonable chance to create distance, slow the event and communicate rationally between both parties exist? If not, explain the reasons why. This may include discussing what tactical or resource-based options exist.
- Identify a reasonable force option: Officers should articulate what force they would use and the duration of that force.
- Articulate the reasonableness of the force used: Officers should be able to articulate the force they used based upon policy and the law. In the case of policy, if a guideline was not met, explain why.
- Post-force requirements: Officers and supervisors often have post-force tasks – what are they and were they completed? Why or why not? In the case of an officer-involves shooting, discussions should include the shooting officer’s rights and responsibilities. What is going to happen in the next 72 hours? Supervisors should present their responsibilities, as well.
CONCLUSION
There is no shortage of experts who offer opinions that police training in use of force is sometimes inadequate. However, I find one topic always missing from a use of force training discussions is an officer’s academic knowledge of use of force policy/law. Therefore, police agencies need to pursue recurring training opportunities on use of force. One evidence-based method is through tabletop decision-making training.
Be safe. Be vigilant!
Reference
1. Documents authored by attorneys in the Alameda County (California) District Attorney’s office.
