In a recent baton training class, I was amazed at the looks and lack of response I got when the group was asked if they could use a distracter technique such as a shin kick or a backhand or some other techniques against a resistive subject who was only verbally resisting. They looked at each other and no one would reply. I then asked if they could draw the baton at this stage and again no one wanted to answer.
I go on to explain that according to Florida Statutes, ANY force can be used to affect an arrest. I’ve always said that all force is necessary but is all force used reasonable? That’s the issue with use of force cases. Trying to determine if the force was reasonable.
What is meant by ‘reasonable?’ Is it simply saying that this is the way another officer or group of officers would act under the same criteria? Maybe not. I suspect — and in fact, I know firsthand — that officers in certain jurisdictions could reasonably draw their guns on traffic stops as a matter of course, while to do that in other locations would get a beef filed on you. What is reasonable in Chicago, or L.A. may not be (and often times is not) reasonable in most other places.
However, there is a way to determine reasonable that is universally accepted both outside and inside our profession. This test is based upon the four tiers of protection that all officers are required to work within. These are the United States Constitution, the State Statutes, agency policy and training. If you step outside these areas, your actions will most likely be deemed unreasonable. For example, when are you allowed to violate someone’s rights under the 4th Amendment? The answer is, “Never!” While there are exceptions to search and seizure laws, these do not allow you to violate a person’s rights under that Amendment. In fact, the law protects citizens from unreasonable search/seizure.
It is well known that State Statutes usually are more restrictive than the Federal ones, and that agency policy is usually more restrictive than both. Training reflects the application of all three provided through various means to those that have to work the streets. All of these must intertwine and no one area can stand alone. In other words, training must reflect the proper behaviors and knowledge related to the U.S. Constitution, State Statutes, and agency policy. To do otherwise would be unreasonable.
Comprehensive understanding of what can be done related to use of force is far more important than what can’t be done. If an officer is going to carry a baton, then they must know how, when, and where to use it. If all they know is what they can’t do, then I believe we’ve failed them as trainers. It’s relatively easy to figure out when and why to use firearms. Not so with batons (and DT in general). There are many reasons for this. I think that officers in general are not really taught these issues as much as they are taught techniques. The application of those techniques requires many variables especially at the lower ends of the force levels.
I also think that other issues cloud the use of batons and DT techniques such as the rise in use of TASER® electronic control devices (ECDs), carrying of the baton, the techniques themselves which, with the baton is basically to strike/hit someone. There is also some doubt that arises with the use of batons as there really is no training that replicates its use in a training environment. We can pepper spray and apply ECDs to each other to get the desired effect, however, we can’t hit someone the way they need to be hit with a baton in a training environment, so we really don’t know how hard and what is the real response of someone to a strike.
To understand the effectiveness of the baton, for example, means that we must understand when it is ineffective. Its advantage is that it is the only weapon in the police inventory that has the capability of transcending the entire length of the use of force spectrum. Its presence alone can stop aggressive behavior, it certainly fits into the intermediate class of weapons and if applied to certain areas can be used as deadly force if needed. No other weapon has that capability in my opinion.
So, as trainers and users of any and all police weapons, we need to understand that weapon in the totality of the circumstances when it is used. This term used in the Supreme Courts decision of Grahm V. Conner spells this out.
The recent Streamwood, Illinois video cam of the officer using various forms of force (including firearm, then ECDs, and then baton) certainly points this out. The public’s perception with the use of firearms and now with ECDs has somewhat solidified over the past years. Just like us, they kind of know what is going to happen if we shoot or deploy an ECD at someone and the public has come to accept this. What they do not see, because we do not use them vary often is the baton or in some cases various types of DT techniques.
That is why when one views a police officer using a baton which is essentially to hit someone to gain control, it often times looks more brutal that it is and since most officers are not sure if they can use it at the lower levels of force, guess what the public believes!! What the video and any camera will never show is the totality of the circumstances especially with the baton. The officer needs to only be able to justify his/her actions as it relates to that incident. The reasonableness of the use of any police weapon has nothing to do with the actual techniques being used but rather was the weapon used reasonable within the totality of the circumstances? All the officer-subject factors need to be taken into account and again, it’s not what a reasonable officer would do but was the actions of the officer covered by the Constitution, State laws, policy, and training?
I believe that we will be facing many more such challenges — it’s simply the nature of the society we live in. That’s why it is incumbent upon every officer to know what they can do (and when), and then be able to clearly articulate their actions based upon reasonableness within the context of the totality of the circumstances.
