Why it is just as important to document force avoidance as it is to document the use of force

By Mario Knapp

The law enforcement industry is under fierce scrutiny for everything from our choice of uniforms to police use of force, where even agencies that have not been specifically involved in any polarizing incidents or alleged wrongdoing have been forced to reconsider the way they serve their communities.

From the seemingly irresponsible demands to “defund the police” to the more genuine cries for police reform and better police training, public opinion has caused police administrators to open their manuals and take a hard look at their administrative policies and processes. No aspect of law enforcement has been more impacted by this than the use of force. It’s time for law enforcement agencies to get more strategic about how they are documenting use of force encounters and doing so in a way that garners community support. This may not be in the form of what the community thinks they want to know but in the form of what they need to know.

Differentiators

For the sake of clarity, it is important to make some distinctions between certain terms and how they relate to this conversation.

First, let’s acknowledge that when police or attorneys use the term “use of force” conversationally, they could be referring to a number of interpretations. Each of them may be correct in their own context, making it very easy to lead to confusion.

Use of force (the law): The Fourth Amendment offers protection against unreasonable search and seizure. For the purpose of this conversation, let’s not focus on whether the search or seizure is reasonable or unreasonable, as this is determined by the courts after the fact. What is relevant to our conversation is that every search and arrest of a person is a Fourth Amendment “seizure.” Regardless of whether physical force is used or not, the fact that the person has been searched or arrested (seized), is constitutionally recognized as a use of force under the Fourth Amendment.

Use of force (the action): In this context, the term refers to the physical action itself – exactly how the officer applied physical or mechanical force against a person (e.g., wrist lock, baton strike, foot sweep, etc.).

Use of force (the definition): Every agency’s threshold for investigation and documentation of “force” is different. For example, one agency may require supervisory documentation for physically placing a person’s hands behind their back for handcuffing, while another agency may require supervisory documentation only when there is a complaint of injury.

Generally speaking, in most cases during an arrest or custodial situation where a person is compliant, handcuffed with little effort from the officer, and no further conflict exists, there would be no need for a supervisory force investigation. If the person resists the officer’s effort in a manner that challenges the officer’s ability to place the person into custody, the officer will likely intensify their effort. At this point, their actions may fall within their agency’s definition of force and a supervisor will determine whether the officer’s actions require a use of force investigation.

Use of force (the document): This is the actual instrument used to investigate and document the force incident. While most agencies have moved away from the traditional title of “Use of Force Report” toward a more descriptively accurate title such as “Response to Resistance Report,” it is not uncommon for officers to still refer to the document as a “use of force” Report. Think of this as the supervisory force investigation, or the vehicle by which force is documented.

In an overly simplified, and possibly confusing overview, every use of force (the action) is a Fourth Amendment seizure (the law), but because each agency has a different definition or categorization of force (the definition), not every incident will constitute a use of force or supervisory force investigation (the document) by the agency. In other words, every use of force (action) is a Fourth Amendment seizure (law), but not every Fourth Amendment seizure will require a force report (document).

Definition depends on context

It has been my experience that you can predict the context simply by knowing where the term is coming from. For example, when police trainers use the term, they are likely referring to the action. A supervisor is likely referring to the document itself. An internal affairs investigator is likely referring to the definition and how it relates to the action; and finally, an attorney may be referring to the law at a more global level.

Because of this, during a casual conversation among co-workers, it may not be unlikely for a police officer to say something as confusing as, “Even though it was a use of force, it wasn’t force, so it’s not a use of force.” Even though it makes sense in “cop talk,” It would make more sense if the sentence sounded more like “Although it was a Fourth Amendment seizure, my actions did not meet the criteria for supervisory investigation, so it’s not going to be investigated as force.”

Agency administration

This naturally leads us to the next question that if a police department has the authority to define and categorize “force” and establishes policies surrounding how that “force” is investigated and documented, doesn’t it also have the authority to assign a title to each instrument used for documentation? In most cases, the answer is it does, much like the “Use of Force Report” was changed to “Response to Resistance Report” many years ago. This is an administrative decision, not a legal one.

After all, the title change from Use of Force Report to Response to Resistance Report made sense. The former title held a somewhat negative connotation, as the title only served to highlight the fact that an officer used force, with no association to the fact that the involved officers actually responded to the person’s actions. The title lends itself to the interpretation that the involved officers made a decision to use force as if it were a preference and not a necessary response to the actions of a combative person.

The latter title of “Response to Resistance Report” is more appropriate. The title of the report offers a more descriptively accurate depiction of the incident. The officer did not just decide to use force, they encountered resistance and responded to that resistance.

In full transparency, even with the title change, officers prefer not to use force. While agencies and trainers explain that the utilization of force, when confronted with resistance, should not reflect negatively on the officer, policies and protocols prove differently. Practically every agency has what is generally referred to as an “Early Identification System.” While it may be named differently from agency to agency, it’s an arrangement where officers are subject to investigation for having a certain number of personnel complaints in a given amount of time. Also included in the calculation are supervisory force investigations, or “uses of force.” Officers understand that having to resort to force is obviously not celebrated, so they generally try to avoid it.

Strategic documentation

We’ve established that every arrest is a Fourth Amendment seizure, and every seizure is documented as required by the agency in one way or another, but only the seizures that are administratively defined by the agency as “force” require a formal investigation by a supervisor. So, while we are reassessing our departmental reporting practices to ensure that we have detailed documentation as to what officers ARE doing while responding to resistance, maybe we should look further into establishing a means of capturing what officers are NOT doing while responding to the same. And by this, I mean they are not indiscriminately using force.

Very often, officers are faced with arrest or custodial situations where the individual becomes combative. Whether the incident is criminal in nature or involves an emotionally disturbed individual, not everyone complies with police commands. In many of these cases, police might be legally justified to use force, but instead, they use de-escalation tools and strategies to generate voluntary compliance. After all, police officers understand that not every display of resistance requires escalation. But are we as a profession, telling this story? With so much scrutiny on law enforcement and such a heavy emphasis on police use of de-escalation, wouldn’t it be equally as important and beneficial to record how often officers successfully employ force avoidance strategies?

This could come in the form of a “Force Avoidance Report”. This would be a short, detailed account of the subject’s behavior, and how the officer was able to establish control without the use of any conventional means of force. The Force Avoidance Report can be used anytime force is justified but was avoided, and control was established by any other means, such as verbal communication, or the use of any other de-escalation strategy or tool.

Not only would this accurately titled report be useful in satisfying the public’s request for increased transparency, but this would also paint a much more accurate picture of the frequency in which officers face resistance, and the lengths they go through to avoid using force daily.

This is not to say that actual force becomes obsolete. That would not only be untrue but a totally irresponsible suggestion. Officers are confronted with a myriad of situations daily. To say that officers can avoid using force in every situation is reckless, but to say that it would be very advantageous to document the instances where they do is important and meaningful. It is nothing more than titling the report in a manner that is consistent with the findings of the investigation.

Implementation of a Force Avoidance Report framework is beneficial in many ways. It is meaningful to the officer, as it is commendatory in nature, and can be placed in their personnel jacket. It is meaningful for the agency, as it demonstrates how officers consider other options in situations where there is no immediate threat and therefore reduces departmental force incidents.

It benefits the chief who can now confidently stand before the community and provide data that is not only more accurate but may paint a more visually accurate picture of the agency’s successes on de-escalation, which can be used to counterbalance what might be reflected in a “black and white” Early Identification System.

Force avoidance is not a new concept for police. Officers have avoided force and de-escalated situations since the beginning of time. The challenge has been that we have never felt the need to corroborate it. Being able to do so goes a long way in not only protecting our officers but also regaining community trust and support.

About the author

Knapp is a member of the Police Executive Research Forum (PERF) and holds a Bachelor of Science in Criminal Justice Management from the Union Institute and University.