Use of Force: Time to “Geek It Up”

January 24, 2020

7-steps toward expertise.

Who is your go-to person for all your use of force (UoF) needs?

Is it the same person I often see selected by default? The range master? The arrest and control instructor? The grizzled SWAT guy? Many of these oft-named individuals have a focus on practical skill sets such as shooting accurately, martial arts, or close-quarters tactics, but they don’t always have a breadth of deep knowledge regarding what I call the “academics” behind UoF.

I know I may have just made some readers’ blood pressures rise. Maybe some forehead veins are beginning to pulse visibly—but hear me out.

I held all of the aforementioned titles, and then some, at various points in my career. When I look back, I realize there was a lot I didn’t know, but earning those titles did not dynamically increase my knowledge of the academics of UoF. As a matter of fact, there are few courses I’m aware of that focus on this incredibly important area. I—and many of those I’ve worked with—find this to be a problem.

We can all agree that it’s important to be proficient in practical skills. But those skills can be wasted if officers aren’t able to confidently make rapid “academic decisions” in a UoF scenario. Those skills may not be very useful when it’s time for officers to articulate the details after a UoF incident and deal with the legal and administrative aftermath.

Most people I have taught, from officers to executives, have told me they have some level of expertise in the academics of UoF. Then I start asking questions:

Can you define the evaluative criteria found in Graham v. Connor (1989)?

What does your policy say about the level of resistance required to deploy a TASER in dart mode?

After the use of deadly force, what initial information are you required to provide to the first responding supervisor?

Can you tell me what the jury instructions for justifiable homicide by a peace officer say in your jurisdiction?

If you or the people you supervise do not know the answers to these questions, there may be a sad country music song in their future. You know—the one where a guy loses his job, his house, and his car?

Therefore, I suggest it’s time to “geek it up” by following my seven steps to UoF academic mastery. By the time you’re done, you may just earn your certification as a UoF Geek.

1. First, brush up on articulating reasonable suspicion/probable cause. I know it sounds ridiculous, but you wouldn’t believe how many officers have a hard time articulating the standard. It’s always good to remind ourselves so that we are sure the foundation of any 4th amendment intrusion is met before attempting the seizure (i.e., force).

2. Go to the Federal Law Enforcement Training Center UoF website. Look in the “Available Resources” section for the multi-part series of podcasts titled “Use of Force.” There are nine podcasts on the academics of UoF narrated by the Legal Division at FLETC. This will provide a solid foundation on the civil standards for which you and your agency are accountable.

3. Go to your penal code and refresh your knowledge regarding what your state law says about using force. Do you have the authority to use force in order to affect the arrest, prevent the escape, or overcome resistance? Are you required to retreat? Are you required to exhaust other means or de-escalate? This information should be printed and put in a UoF reference folder.

4. Does your jurisdiction have jury instructions defining justifiable homicide by a peace officer? Are there jury instructions for the excessive use of force? Jury instructions provide evaluative criteria for determining whether force is lawful or not. This information should also go into a UoF reference folder.

5. Does your district attorney or prosecutor provide memorandums or decision letters regarding officer-involved shootings? These decision letters can help you understand how the prosecutor applies the law to an officer-involved-shooting. Print a few out and place them in the UoF reference folder.

6. Review your agency policy and see how closely it resembles federal and state law. Are there references to Graham v. Connor (1989), Tennessee v. Garner (1985), Scott v. Harris (2007), or various state laws regarding UoF? Does your policy contain language that is more restrictive than federal or state law? This is more information for your UoF reference folder.

7. Once you’ve done the work and can articulate the federal, state, and administrative standards that apply to you, it’s time to think about real-world application. As agency policy is likely the most restrictive guidance regarding UoF, use it as a checklist when writing your report. Pick the policy or policies that apply to the situation and articulate how you complied with legal and administrative requirements. This method is also useful for you as a reminder to articulate the requirements with which you didn’t comply and why.

After you work through these seven steps, don’t be surprised if you start looking at UoF incidents in a whole new way. You may be less inclined to critique an officer’s tactics or to have an emotional, knee-jerk reaction to the situation. Instead, you may be more inclined to take a clinical approach and determine whether the force was objectively reasonable under the totality of the circumstances. When you start doing that, you know you’ve become a fully certified UoF Geek!

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