A certain faction of the public is asking for a change in the way law enforcement operates with regard to use of force. These people base their calls for change on a select few incidents, most of which are legally justifiable but protested under false narratives and a lack of understanding about police use of force. Those few incidents that actually do demonstrate excessive force do not reflect the vast majority of law enforcement personnel and the way they operate on a daily basis.
Politicians seem more interested in appeasing certain vocal groups that have obvious anti-law enforcement sentiments than truly addressing the issues. Importantly, these groups have no real authority to create law, standards of care, or agency policy — they can only make recommendations.
If a person or group is going to make suggestions that training and standards need to be changed, then that person or group should try to understand the current standards and why they exist. Then —and only then — can they understand how these proposed changes would affect law enforcement and the way they operate.
Current Standards
The SCOTUS has created the standard to which law enforcement must operate: an officer’s force response is evaluated based on the standard of objective reasonableness. Why the standard of reasonableness? The fourth Amendment protects against unreasonable seizures, and the court has viewed an officer’s use of force as a seizure. Therefore, we must be reasonable in using force.
These standards include several important points that take into consideration that officers work in an unpredictable world that requires split-second decisions under circumstances that are less than controlled.
I have written several articles on these standards. In this article, I offered the reminder that another trainer once said, “The law is comprised of words, and those words have definitions,” and that instead of using words like “minimal force” and “necessary force” I advocate for the term “reasonable force” (or more specifically, “objectively reasonable force”).
This term does not carry the unrealistically-utopian idealism of the term “minimal force.” It also does not give any implication that it describes an exact quantum of force that can be debated for weeks. It does not give the idea that a use of force should be looked at with hindsight to determine if it really was “necessary.” You can read much more about this line of reasoning here.
New and Potentially Dangerous Ideas
Some of the words being spoken for these new standards are very dangerous to officers, both in a physical sense and in a litigious sense. In a physical sense, these new ideas will be overly subjected to second guessing the officers’ actions, which in turn will create hesitation by the officers. Everyone understands the issues with officer hesitation — and the results. If officers hesitate or take no actions (“paralysis by over-analysis”) due to concern of an overly subjective standard, the law abiding public will also eventually suffer the consequences.
The other danger comes in the form of increased litigation. We have already seen a decrease in qualified applicants due to the “Ferguson Effect” — driving good people away from a career in law enforcement for fear of being the next scapegoat in this over-litigious society.
Police critics have been introducing some dangerous words and ideas into the often heated debate over police use of force. These words include:
• Changing the standard to what the officer “should have” done. This is a hindsight evaluation that flies in the face of Graham v Connor and does not take into consideration the pace of the event facing the officer at the time in many cases.
• Asking “Was the force necessary?” is also dangerous, as the word necessary is too precise and overly subjective. This again flies in the face of Graham v Connor. There are times when the force used was “objectively reasonable” (the true standard) but would not have been necessary based on someone else’s subjective opinion.
• Asking “Was the force “preventable?” This is perhaps the most dangerous of all thoughts to turn into a standard. First off, every use of force can be preventable if the suspect would not physically resist. Some ignorant evaluator can always come up with some other solution using hindsight and the ability to think the situation to death over days while the officer in most cases is “forced to make split-second decisions in situations that are tense, uncertain, and rapidly evolving.”
The most troublesome concern about all of this is that these pundits seem to only be concerned with changing officer behavior (via new standards) rather than placing the responsibility of the officer’s force response where it belongs: on the suspect. Perhaps if we worked in a more non-litigious world these new ideas would be more palatable, but unfortunately we live in just the opposite and it is absolutely foreseeable that these new ideas will be rammed down the throats of the officers in court. But more importantly, these new ideas will create a physical danger in officers hesitating or not acting in an appropriate manner to protect themselves.
If you are a chief of a sheriff or a public information officer, work hard to correct the record with regard to these new and dangerous ideas. If you’re a patrol officer going out on the streets for your next shift, don’t allow this inaccurate and irrational line of thinking to cause you to hesitate. We need you out there doing your jobs.
