Originally published on the Force Science Institute website. Republished here with permission.
By Lewis “Von” Kliem, MCJ, JD, LLM
After working for 30 years on crisis counseling, de-escalation, negotiation and persuasion, I’m convinced few things require as much skill as talking dangerous people into handcuffs.
Regardless of an officer’s skill, when the risk of delay is too great, there may be no time for de-escalation. In those cases, if an officer uses force, they’ll need to know how that decision will be evaluated, and by whom.
This article – my second in a series – continues to bridge the gap between de-escalation and use of force. The focus is not on the amount or type of force being used. Instead, I look closely at the factors that affect the timing and purpose of the force.
Readers familiar with use of force decision-making know that even expert threat assessments are little more than educated “best guesses.” Tactical decisions, including the decision to use force, require a quick calculation of the risk of action against the risk of delay. This balancing of risk is the foundation of use of force decisions. It’s also one of the most controversial aspects of policing. So let’s start there.
Balancing Risk
In use of force cases, when we ask officers to “balance risk,” we are usually asking them to balance mission accomplishment against physical danger. But balancing risk is more than threat assessments and response options. It is the balancing of an individual’s “right to be left alone” against society’s need to protect government interests. [1]
But who decides which government interests are most important – and have they told the police?
When officers make decisions believing crime reduction or officer safety are their top priorities, they may be shocked when legally justified shootings result in protests, riots, or calls for indictments. That’s because the official and unofficial review of these decisions often involve people with an entirely different set of priorities. Unless we recognize these competing interests, we will continue to talk past each other – with one side arguing threat assessments and tactical superiority – and the other demanding that the police slow down, “de-escalate,” and use force only as a last resort.
We don’t have to agree with one side or the other, but to fairly judge the reasonableness of an officer’s decision, we must know which government interest the officer was trained to prioritize. Unfortunately, as traditional “law and order” policing continues to interact with modern “social justice” theories, the government’s priorities aren’t always clear – and it’s the individual officer who pays for the uncertainty.
Law and Order Meets Social Justice
To effectively judge de-escalation and use of force decisions, it helps to understand the tension between law and order and social justice.
As applied to police, law and order broadly refers to the government’s interest in public safety, law enforcement and public order. [2] Although law and order interests are familiar to most readers, they are not the only government interests that society seeks to promote, and they are not the only standards by which police are judged.
In addition to traditional law and order interests, special interests are increasingly promoted for the benefit of more vulnerable populations. Two of the most notable efforts include mental health crisis response and the government’s broader effort to achieve social justice.
Through the social justice lens, the police are not merely judged for the lawfulness of their conduct, but also for their ability to demonstrate respect, earn trust, promote legitimacy and champion procedural justice on behalf of specified identity groups. Beyond law enforcement and crime reduction, the police are expected to be culturally sensitive and work to eliminate the actual and perceived effects of discrimination.
Social justice theories drive much of the criminal justice reform effort, including a preference for police responses that allow people to avoid harsh legal and financial consequences. This can mean diverting eligible people away from jails and courts and into less stigmatizing community-based support programs.
In some places – to strategically reduce the frequency of force, build trust and reduce community tensions – achieving social justice means enforcing fewer laws, searching fewer cars, stopping fewer people and making fewer arrests.
Competing Interests
Most of the government’s goals are complementary and to achieve one is to benefit another. But it is easy to see the natural tension that develops when law and order interests compete with social justice priorities.
Some agencies resolve this tension by expressly adopting social justice policies. By restricting force options, discretionary stops, pursuits, and arrests, these agencies hope to avoid even the appearance of discrimination. [3] Officers may not always agree with those policies, but there is value in communicating clear expectations, both to officers and to the communities in which they serve.
The challenge comes when officers are trained to operate in support of traditional law and order goals but are then evaluated for how well they supported a community’s social justice efforts. This challenge is compounded when police oversight involves people deliberately chosen to advocate for special interests, while official law and order policy remains unchanged.
Unofficial oversight can further complicate the review process. This can happen when community protesters, media outlets and police reform advocates reject legal standards and instead judge police conduct by its impact on a specific social justice outcome.
What does this have to do with realistic de-escalation? Everything.
Public affairs officers or agency leaders who confidently defend an officer’s use of force by pointing to “officer safety,” “crime reduction” or even “public safety” are winning a game that the other side may not be playing.
When a community’s goals are for the police to stop shooting their sons and stop filling jails with their fathers, it is little comfort that the arrest or shooting was legally justified – and highly unlikely they will concede that point.
Instead, communities will continue to demand “accountability” and accuse agencies and officers of failing to de-escalate, or, worse, unreasonably creating the jeopardy. Whether these demands are reasonable depends on who ultimately sets the government’s priorities, whether officers were ever trained on these priorities and whether de-escalation was even a realistic option.
As we continue to explore realistic de-escalation in this series, readers are asked to keep the balance of risk and competing government interests in mind. In the next article, we will explain when de-escalation is a realistic option. We will provide officers, attorneys and community members a structure by which to expertly evaluate the timing of de-escalation and use of force decisions.
NEXT: 4 conditions for effective de-escalation
References
1. Readers may recognize this as a condensed version of Graham’s “reasonableness” test, which “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989), quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)
2. Courts have recognized the following as examples of “important government interests”: social order, administration of justice, officer safety, public safety, crime prevention, law enforcement, traffic regulation, safeguarding property and maintaining peace.
3. Policy restrictions can also be a necessary balance of law and order priorities, e.g., “no chase” policies balance public safety against law enforcement.
About the author
With nearly 30 years in the criminal justice profession, Lewis “Von” Kliem, MCJ, JD, LLM, worked as a civilian police officer, attorney, educator and author. Von is the executive editor of Force Science News and co-owner of Von Kliem Consulting, LLC, where he trains and consults on constitutional policing, use of force analysis, crisis communications and trauma-informed interviewing.
About the Force Science Institute
The Force Science Institute (FSI) was launched in 2004 by Executive Director Bill Lewinski, PhD, who has a doctorate in police psychology. FSI conducts sophisticated scientific research studies in human behavior to document the physical and mental dynamics of life-threatening events, including officer-involved shootings. Its findings impact officer training and safety and the public’s perceptions of police use of force.
For more information, visit www.forcescience.org. If you would benefit from receiving updates on FSI’s findings, as well as a variety of other law enforcement-related articles, visit www.forcescience.org/news/ and click on the “Subscribe Now” link. Subscriptions are free.
