The word is spreading that the use of force continuum is dying a slow death. While the continuum model has served as a useful instructional tool for trainees over the years it has serious and even dangerous limitations as a tool for application in a field environment.
Police officers engaged in encounters with non-compliant offenders may feel that they are legally obligated to climb the use-of-force ladder and de-escalate to compliance, hesitating to take safer immediate assertive actions to end unlawful resistance. The stair- step dance of “he does that then I can do this” confuses practitioners, prosecutors, and juries. Fortunately the US Supreme Court has a refreshingly realistic standard of reasonableness which has yet to be fully grasped by policy makers of my generation still trembling from the Warren court years.
This article offers five principles of understanding encounters with non-compliant offenders under the doctrinal umbrella of offender-centered decision making. That is to say that the subject with whom a peace officer is in lawful contact is the primary decider of the tenor of the encounter.
In all cases where the officer is dealing with an encounter outside of a purely consensual one (in which the subject has the right to simply turn and walk away) the law explicitly demands that the subject comply with the officer.
1. Training and report writing about non-compliant encounters should concentrate on the offender’s behavior and accurately portray the officer as reacting to the offender in the context of the event.
While this principle may not sound radically different than current practice it is a contrast to the continuum model. The continuum doctrine and its underlying premise is that officers are legally and morally bound to use no force where the remote possibility exists of avoiding it and to use the least force theoretically possible in the least intrusive way for the shortest possible amount of time.
The reality is that when an offender is non-compliant (they become an offender at the moment of non-compliance) the officer has the legal and moral obligation to gain compliance as quickly and safely as possible. Rather than lowest force, we must transition to a most effective paradigm. In this context we would define “effective” as that which is quickest and safest. The most effective means of gaining compliance may not be the least possible force but must remain reasonable.
That which is most effective, i.e. fast and safe, tends to result in shorter physical contact when a hands-on disposition is inevitable. Briefer contact means less likelihood of injury to offender, bystander, and officer. In that light, application of effective means to end non-compliance is a moral imperative as well as tactically superior and justifiable.
In addition, while de-escalation is one of the many tools in the compliance tool kit it is not always wise to employ attempts at verbal calming. Some conditions contributing to non-compliance are medical emergencies dependent on brain chemistry that will not respond to calming techniques and that will only get worse and less treatable over time. This does not argue against crisis intervention methods, but rather puts those methods in the tool box for use when appropriate and to be left in the box when they are not.
2. Restructure the language of reporting to eliminate the term “use of force” from reports, policy, and training as much as possible.
The baggage that comes along with this term unfairly colors any objective report and tacitly implies that the officer’s actions are suspect and brutal. It promotes the assumption that if force was used it was the officer’s fault and he or she has some explaining to do.
In keeping with the concept that the decision to be non-compliant is with the offender, an officer’s efforts to gain lawful compliance should be described in those offender-centered terms with the officer identified as the victim. The subject of the narrative should be the offender, not the officer. Putting emphasis on the behavior of the offender and the context of the encounter more accurately portrays the offender’s unlawful behavior and minimizes the perception of the officer as the aggressor. The officer leads the reader to agree with him or her that the use of force was imposed upon them by the offender.
With offender-centered reporting, agencies may decide that separate forms for reporting use of force are unnecessary. Those reports were important in an earlier era of policing but can be supplanted by a more comprehensive approach to report making.
Any efforts required to gain offender compliance should be a part of the offense report narrative; fully documented in the accurate and comprehensive description of the offender’s unlawful behavior and the context of the contact. The offender-centered concept of non-compliance enhances officers’ awareness of their victimization which, in turn, will likely enhance the prosecutors’ and juries’ perceptions as well.
Use of force reports are by their nature defensive and carry the cloud of accusation over them. Documenting non-compliance puts the burden where it should be – on the offender’s behavior in the context of a criminal act of resistance.
In using language to convey the circumstances of the event officers should avoid passive language like “he was then subdued” and avoid mere labeling such as “resistive”, “combative”, “uncooperative”, “non-compliant” unless providing specific descriptions of behavior such as walking away, pushing, refusing to answer, fighting, etc.
3. Context is critical.
The context of the encounter gives the officer facts that determine his or her course of action. These facts are almost always unknown to the offender, but the offender’s ignorance of them must not justify his or her failure to comply. The law requires compliance.
The significance of environmental, social, and historical factors that color the officer’s perceptions of the encounter will escape the reader of the report unless the officer explicitly guides the reader to navigate the cumulative significance of those factors. All of the factual circumstances of the event and the officer’s subjective interpretation of them must be communicated in the report.
The reader of the report must have as much information as possible about the situation faced by the officer. Standard concerns such as time of day, number of persons, and knowledge of the offender’s emotional disposition should be articulated. Officers must give voice to their fears and concerns even though documenting fear seems counter to our self-image. Those who read the officer’s report should not be left to guess or assume the appropriateness of the officer’s actions without a fully painted picture.
4. Use the “Contextual Compliance Tool Kit” language and imagery.
Stage and step compliance policies should be altered to explicitly recognize the rapid decision making and fluidity inherent in non-compliance events. The metaphor of the tool kit is much more useful than some geometric graphic.
Rubrics, tables, arcs, stair steps, and wheels all imply some rational orbit of events when a person resists a police officer. The process of deciding how to gain compliance is a logical one, not trial and error.
The use of force continuum is predicated on trial and error – if step two doesn’t work go to step three and so on. It implies a willingness to err on the side of being ineffective. Achieving compliance efficiently is rational – the officer will select the tool most likely to be effective in solving the problem of non-compliance.
5. Document success.
Officers tend to subtly express in their reports that resorting to force was somehow a failure on their part. Lawful use of force is never a failure, except perhaps a failure of judgment on the part of the offender. Gaining compliance is what law enforcement does. That’s the “enforcement” part. It is what police are hired to do, empowered to do, entrusted to do, and expected to do. It is necessary and honorable.
The narrative regarding the efforts to gain compliance should be as positive as a realistic account can be. Is there a happy ending when somebody is subdued by multiple officers and handcuffed? Certainly in the universal sense there was failure somewhere – family, school, religion, government, personal choices; all the things the criminologists study. But the officer’s mission is direct: gain compliance effectively. If that was accomplished then say so in the report. Document all of the care-giving that followed the offender’s resistance, including rights advisements, checking tightness of handcuffs and restraints, and obtaining medical care.
Policy makers need to understand that the reactive measures of the past generation to lawsuits and bad publicity have achieved their purpose. We must proceed with caution and be ever mindful of the potential for litigation and loss of public confidence while scrupulously guarding civil rights of all whom we encounter. We need not agree with the enemies of law enforcement nor apologize for gaining compliance under the law – using all the tools in our tool kit.