Use of Force Contuum

I have written that the Use of Force Continuum (UOFC) must be replaced in police policy with something more utilitarian. The UOFC might be a good theoretical teaching tool but is not a good guide for field use in determining the reasonableness of force. At the very least, those who continue to use the unwieldy UOFC need to truncate the lower tier of the model by removing "officer presence" as a part of the force model.

For those who are not familiar with the UOFC the premise is that a) police need to use the least amount of force possible and b) that police officers use one level higher than the person they are arresting and escalate according to the resisting party's use of force and c) police officers must de-escalate as soon as possible and in concordance with the resisting party's own use of force in resisting.

Traditional models look like stair steps and place different control techniques on different tiers according to their potential for injury to the suspect. The lower tier is typically labelled "officer presence" and refers to the officer's "command presence" in which, theoretically, the stalwart, confident police officer intimidates the citizen into compliance. The higher tiers move through joint locks, night sticks, electronic control devices, guns, tear gas, etc. There is often a description of suspect action that corresponds to the allowable officer action.

The problem with the UOFC is that people who resist arrest don't use it. They don't start out using minimal resistance and gradually use more severe force in the order that the police academy charts indicate. Another problem is that the minimally necessary force may not be the most effective force. If the force applied is not effective then the resistance of the suspect could lead to a rapid escalation of force and an even worse outcome. Part of the reason for this is that if the officer fails to gain control of the suspect immediately, the suspect's adrenaline is kicking in while the officer's is beginning to wane, resulting in a longer, more dangerous encounter for both the officer and the suspect.

Another issue with the UOFC is that it is not what the courts require. The Supreme Court has consistently used "reasonableness" as its standard for determining if a police officer used excessive force or not. This is consistent with the US Constitution's fourth amendment that governs how persons can be seized.

Now that we've had a quick lesson in the UOFC, I'll make my main point of today's commentary: Citing "officer presence" as a "use of force" is not accurate or helpful. Officers who merely show up are not engaged in a use of force. Although a suspect or other citizen might consider the officer's mere presence menacing and intimidating, that's their perception in view of the context of the contact and not something entirely within the control of the police officer. Labeling a police officer's existence at a certain time and place as force creates an implication that police officers are all about force, that force is at their essence, that brutality sulks in the britches of every uniform just waiting to pounce. This perception is part of the undercurrent of suspicion and hatred of the police so prevalent in police encounters in recent days when focus should be on the person in non-compliance with the law.

What the officer's presence indicates is that the suspect must be mindful of the law. The law requires a person to submit to the police officer's lawful commands and requests, and submit to a lawful detention or arrest. In fact, while some state laws allow a citizen to resist an unlawful arrest, most state laws do not; and a citizen resists at their peril because the subjective knowledge of the police officer is the guide for the reasonableness of the contact based on facts that officer knows. If I happen to look just like the guy that just robbed the bank down the block I can't resist the officer's arrest since from his perspective that arrest is perfectly reasonable and the courts will quickly agree.

Therefore, if a policy insists on using the out of date UOFC , that policy should reflect that the first tier of the continuum is the citizen's knowledge that he or she must submit to the officer according to the law.

The whole paradigm of police use of force in this ordered democracy under the rule of law must change to focus on the citizens' responsibility to lawfully submit to the police.

http://www.joelshults.com/