Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police. Reprinted with permission.
Few incidents inflame a community more than a police use of deadly force incident that, on the surface, appears unjustified. In the rush to judgment that often happens after such incidents, law enforcement leaders face a deluge of criticism over department policies and officer actions. In some cases, the outcry becomes loud enough to trigger proposed changes in the laws governing police use of deadly force, as with the recent introduction of California AB 931.(1) Following are some of the arguments critics of the Graham v. Connor “objective reasonableness” standard use and talking points to consider in response.
Focusing only on the point of time of the use of deadly force ignores the officer’s actions prior to the use of force. The officer may have created a situation where force became necessary or at least appeared necessary.
This begs the question: What does “created a situation” mean? How far back in the incident will this apply? Any time an officer intervenes to stop potentially criminal activity, they can create a situation that may lead to the need for use of force. And yet we rely on them to intervene.
In fact, the Supreme Court of the United States recently addressed this exact argument when it shot down the 9th Circuit’s “provocation rule” in County of Los Angeles v. Mendez.(2) The provocation rule held that an officer’s reasonable and lawful use of force is unreasonable as a matter of law if the officer intentionally or recklessly provoked a violent response and that provocation is an independent constitutional violation. In striking down the provocation rule, the Supreme Court recognized the rule’s inherent conflict with the Graham standard and further recognized the problems such a rule would create:
“First, the rule includes a vague causal standard. It applies when a prior constitutional violation “created a situation which led to” the use of force. The rule does not incorporate the familiar proximate cause standard. Indeed, it is not clear what causal standard is being applied. Second, while the reasonableness of a search or seizure is almost always based on objective factors, see Whren v. United States, 517 U. S. 806, 814 (1996), the provocation rule looks to the subjective intent of the officers who carried out the seizure.”
Let’s look at a hypothetical but predictable situation. Officers respond to a 911 call for a violent domestic at a residence. Upon arrival, the officers hear noise inside, but no one answers the door. The officers decide they need to enter based upon the emergency aid doctrine exception to the warrant requirement.
Upon entry, the officers see that a male has severely assaulted a female. The male becomes outraged that officers are in his house. He picks up a fireplace poker, refuses all commands to drop it and charges the officers, who fire their service weapons at him in defense.
The officers’ use of force would arguably be objectively reasonable, precluding a successful Fourth Amendment excessive force claim. But now the question becomes, did the officers create the situation and should they now be civilly and/or criminally liable? What if a court subsequently determines that at the time of the entry, the officers did not have enough facts to satisfy the emergency aid doctrine and their entry was illegal? Does that now cement the officers’ fate under a provocation or other “created a situation” rule?
Advocates for the provocation rule would likely protest, “That is not what we meant—the officers may have saved the female’s life by their actions! Besides, the suspect was violating the law!” The reality is that many of the persons shot by officers in high-profile cases were violating the law, but this gets overlooked—or just accepted—by the media and the public. Where do you draw the line—what criminal behavior is acceptable and what is not? Myriad questions would arise, leading to potentially crippling confusion and indecision on the part of police officers. This is what can happen when you change the rules based upon the results of a small number of cases that admittedly have questionable underlying facts.
The Graham standard works and results in the proper outcome in the majority of cases involving police use of deadly force. Many of those cases do not wind up in court because the rules worked, and the officers acted reasonably. Or they are brought but the courts apply the proper standard and find the officers’ actions to be reasonable. As the 7th Circuit Court of Appeals once ruled, “Like the district judge, we think that Douglas should have thanked rather than sued the officers.”(3)
We should focus on the reasonableness of an officer’s actions, not the reasonableness of their beliefs. The latter makes it too easy for them to say they believed their life was in danger.
This is a topic I have discussed in previous articles and the core of this argument completely ignores the realities of human performance factors. Focusing on the reasonableness of an officer’s actions will bring the full brunt of hindsight bias upon officers.
As a society, we openly accept the need for multiple officials and instant replay in nearly every professional sport. Having multiple angles and being able to review a play in slow motion and as many times as needed is a good system to make sure the officials get the call right. But why is such a system necessary in the first place? Because human attention is limited even under ideal situations and can be even further hindered by stress and environmental factors such as lighting and weather.
But wait, the police can take a life—how can you possibly compare that to sports? To determine the root causational factors of a problem you cannot just focus on the result, but instead must focus on the process—what the problem is and where it occurred. Both sports officials and police officers possess and are subject to the same limitations of human attention and perception, and therefore the analysis of the process is similar. For police officers, we also need to consider that a person can generally act faster than an officer can react, which can lead to time compression of the decision-making process.
While the results in the two situations are clearly disproportionate in impact, the causational factors are the same. To subject officers to criminal and/or civil liability for being wrong, even though their beliefs were reasonable, is to ignore the root causational factors and punish officers for being placed in dangerous and rapidly unfolding situations.
Officers in many use of force cases that go to trial or cause big media headlines are not criminally prosecuted, but they are fired. Those who are prosecuted are rarely convicted, but they may also be fired. Doesn’t that show our legal use of force standards are out of line with the expectations we place on officers?
To effectively respond to this argument, it is necessary to set forth some basic premises of policing and liability—criminal and civil. Officers are subject to liability in three areas:
- Criminal, which typically requires the highest level of culpability
- Civil, which has different standards, rules and venues (federal and state) depending upon the type and nature of a claim
- Administrative, which at the department level could lead to various degrees of discipline, including termination.
A use of force incident review may trigger liability in all three areas, two areas, one or even none. All have their own standards of review.
The next concept that must be understood is that police policy is typically very comprehensive and separated by topic. A use of force policy essentially covers a moment in time in an incident. During that moment, everything the officer is aware of and/or reasonably believes is taken into consideration in determining whether the use of force itself was reasonable.
Pre-force actions, however, may be covered by different types of policies. Let’s say an officer races into a house with a lone suicidal subject inside, and that subject charges at the officer with a knife, resulting in the officer shooting him. This will probably be determined a reasonable use of force under the Fourth Amendment since the officer was under immediate risk of serious physical injury or death. Under New York law, the officer has the benefit of Article 35 to shield him/her from criminal prosecution. But, the officer may have violated another policy, such as the Crisis Intervention Policy, during the pre-force actions. This could lead to administrative punishment, which can include termination.
This is exactly what has happened in some recent high-profile use of force cases. There are layers of redress for citizens harmed by police actions, and the terminations of officers in such cases is an indication the system is doing what it is supposed to do. Such cases may also result in civil settlements or judgments, but for constitutional violations or state tort claims on issues separate from the use of force claim.
When officers are charged and are acquitted at trial, it may be because the jury is privy to what the general public is not—the actual facts. Expert testimony can put an officer’s perceptions in proper perspective for the jurors and the jurors themselves can judge the credibility of the witnesses and the evidence.
Our use of force standards are not out of whack, they are just part of a multilayered system to address the complexities of police-citizen encounters.
Officers should be required to use de-escalation measures prior to using force.
De-escalation techniques should absolutely be used, but only when they are possible. Many critics of police use of deadly force assume all situations can be successfully de-escalated by officers. This is not true. A person who is in a severe emotional crisis or in what appears to be a state of severe agitation may not be able to comprehend or even hear any attempts at de-escalation, which is premised on the ability to communicate with a person. It is particularly applicable to persons in crisis situations with limited risk.
De-escalation involves effectively communicating with a person in situations where crisis communications are appropriate. Conflict communication, however, is more appropriate for dealing with criminal suspects who choose to refuse to cooperate with police officers. While beyond the scope of this article, the reality is the techniques used in each situation may be significantly different. Effective communications are critical regardless of crisis or conflict, but it is important to understand that in some situations the person will not listen or cooperate with officers no matter what they do or say. The police can only try, they cannot make the person comply.
For more on when de-escalation tactics are appropriate and when not, check out this on-demand webinar.
It’s easy to understand the dismay and even anger of members of the public who watch body-cam video of an officer involved shooting that, with the benefit of hindsight, was not exactly the way the officer perceived the situation. But this dismay and anger are hardly the basis for changing the established standards governing police use of force. Such feelings are borne out of a limited understanding of the law, the realities of policing and human performance factors. The correct response to public outcry following a use of force incident is to conduct a thorough and transparent investigation—not to rush to change laws or policies rooted in foundational legal and policing concepts. Police agencies must use the results of these investigations to continuously improve their policies and training.
References
- The proposed legislation is comprehensive and would eliminate the current federal standard of objective reasonableness. Under the proposed legislation the use of deadly physical force must be “necessary” and would not be justified if the officer(s), through “gross negligence,” “substantially contributed to making necessary.” In other words, if the officer is wrong in his or her perception of the events, the force used would not, with the benefit of hindsight, have been necessary.
- 581 U.S. ___ , 137 S.Ct. 1539 (2017)
- Bell v. Irwin, 321 F.3d 637 (2003); Douglas was intoxicated, armed with multiple knives, threatened to kill any officer that came in the house and then would kill himself, opened the door and threatened to blow up the home with the propane tanks next to the house. He started moving toward the tanks and the officers fired bean bag rounds at him, causing injuries to his head.
