Police use of force has been a hot topic for a number of years, and allegations of excessive force continue to generate headlines across the nation. The apparent prevalence of these allegations has resulted in feelings of fear, disbelief, and mistrust within our communities. While there is no question that some of the allegations are accurate, many of them involve incidents in which the officers’ actions are legally and morally justified. Nevertheless, some officers have been vilified by some and their careers unfairly destroyed. So how do we, as a society, distinguish between excessive force and that which is justified under the law?
The reality is that an officer’s actions in a particular use of force incident are being judged by a society that, all too often, does not understand the dynamics of a police use of force incident or the legal standard for determining whether an officer’s actions are appropriate. And the blame for that reality falls squarely on the shoulders of the law enforcement agencies. Law enforcement agencies have done an inadequate job at educating the communities they serve as to how and why police use of force incidents occur. And that may be because even they do not know or fully understand. In fact, during a recent court hearing, a former Arizona Chief of Police testified that he had never heard of Graham v. Connor. This is highly concerning because Graham v. Connor is a landmark case that established the legal standard governing all police use of force incidents. A case that, certainly, all high-ranking law enforcement officials should be aware of and familiar with.
This article is the first in a three-part series intended to increase knowledge in this area. The series will explain an officer’s legal authority to use force, explore the factors that play into an officer’s decision to use force, and provide insight as to how officers are trained to respond in what can quickly become life-threatening situations.
In the effort of full transparency, I want to disclose a few points. I am a police officer, and I have been for 19 years. That does shape my view and influence my perspective on these incidents. I am also recognized as a subject-matter expert in the State of Arizona in the areas of police use of force, arrest and control tactics, and firearms. Over the years, I have taught multiple instructor courses for the Arizona Peace Officer Standards and Training (“AZPOST”) Board, which is the governing organization that certifies police officers. I have also taught courses at multiple police academies. I have instructed extensively on active shooter and active threat response, response to suicide bombers, Taser, and verbal de-escalation and control. I have testified about the reasonableness of officers’ actions at numerous court and other legal proceedings, both “for” and “against” the officer. I have a strong science background and graduated with honors in Exercise and Sports Science, with a concentration in physiology and biochemistry. I am one of the original founders of the Arizona Tactical Officers Association, which is the State of Arizona’s SWAT association, and I served as the association’s Secretary for five years. My background establishes my credibility to some and my bias to others, and I accept that.
Officers are required to use a variety of force options in the performance of their jobs. These options, listed in the order of risk of injury (low to high), include: Officer Presence, Verbal Control/Commands, Soft Empty Hand Control, Hard Empty Hand Control, Intermediate Weapons, and Deadly Force. Each of these options have options within them. For example, the Intermediate Weapons category includes pepper spray, Tasers, impact weapons, and the use of police service dog. Whether officers are justified in using each of these options is governed by case law, State law, and internal department policy.
As mentioned previously, Graham v. Connor, a decision by the United States Supreme Court, established the legal standard that continues to govern all police use of force incidents. The Graham Court held that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard .
Put yourself in the position of an officer investigating a possible robbery. You see a vehicle pull up to a convenience store. The passenger quickly enters the store, within moments he then quickly exits the store, and the vehicle with all occupants’ speeds off. When the passenger exited the store you saw that something was not quite right and this appears to be a robbery. On contact with the vehicle, the passenger claims he is a diabetic, you have no formal medical training but in your career you have had lots of people make wild claims in an effort to get out of trouble. Your training and experience has shown many times a store robbery involves weapons. You are trying to contact the store and you can’t let the vehicle or the passengers leave until you know that there was or was not a crime.
In the Graham case, Dethorn Graham was a diabetic and in the midst of a diabetic episode. He asked his friend to drive him to a store to get something that would help his blood sugar. They arrived at the store and Graham quickly enters the store and after a moment realizes that the line is not moving at the rate he needs and abruptly leaves the store, he gets back in the car and tells his friend to drive off. A nearby officer sees the vehicle quickly pull up to a store a hurried subject run in then that subject run out and the car speed off. To a reasonable officer this action looks like they just witnessed a robbery.
What happens if the subject becomes irrational or combative? Knowing he is a diabetic prior to hearing the story makes it simple to understand and easy to decide a course of action. The choice is very easy when you look back via the luxury of 20/20 hindsight. But officers don’t have that magic power. It is easy to make the “perfect” decision when you have all of correct information, plenty of time to decide, with no fear stemming from the potential disastrous outcomes.
The Graham case established that police use of force should be analyzed under the objective reasonableness standard of the Fourth Amendment. Thus, It also established a three-pronged test to be used in evaluating the reasonableness of a particular use of force. These are: What was the severity of the crime at issue? Does the suspect pose an immediate threat to the safety of the officer or others? Was the subject resisting arrest or trying to evade arrest by flight (fleeing to prevent capture)? These factors are used to evaluate an officer’s use of force. One of the vital points that came out of this case is the concept of “Objective Reasonableness”.
The definition of objectively reasonable is not easy to establish nor is it subject to a mechanical application. The definition that I have used in community presentations is “Would a reasonable and prudent officer facing the same or similar circumstance behave in the same or similar manner?” This is the “reasonable person” concept applied to the reasonable officer perspective. It is important to understand that different officers would handle the same situation in different ways based on their training and experience. If an officer is faced with someone who has been drinking heavily and has decided to assault the officer a reasonable response could be the use of OC, Taser, Impact Weapon or Empty Hand control. These are all different force options but all potentially reasonable based on the totality of the circumstance.
The Graham decision also clarified that an officers actions don’t have to be “right” they have to be “reasonable”. Officers are human and subject to the same limitations that all humans have. (These human limitations will be discussed further in part 2 of this series.) The Supreme Court recognized that officers are human and that they cannot be held to a standard that does not allow for errors. These errors must be reasonable and not the result of poor judgment or poor use of tactics. The Graham decision established that “Not every push or shove even if later it may seem unnecessary in the peace of a Judge’s chambers, violates the fourth amendment.” The courts have recognized that officers have to make decisions in “tense, uncertain and rapidly evolving situations.”
Put yourself in the place of an officer working to meet the needs of her husband and twin boys. One night, she responds to a call of a man with a gun. She sees a person step out of the shadows holding a gun. The officer repeatedly commands the subject to drop the gun. Instead of complying, the person quickly raises the gun towards the officer and establishes a shooting stance. What would you do in the officer’s shoes? You are facing a person with the means to kill you, they have demonstrated their intent by pointing the weapon at you. Is it reasonable for an officer to shoot a subject that is pointing a weapon at the officer? What if the weapon later turns out to be a toy? What if the subject is later established to be mentally disabled? This would be a highly tragic situation, but is it reasonable? The officer was incorrect in identifying the replica weapon as real threat, but this is a tense, uncertain and rapidly evolving situation. Any reasonable person would believe it was a weapon they were facing and would fear for their life. Officers get paid to take calculated risks, not foolish risks and they don’t get paid to get injured or to die.
State Law also provides the foundation of police use of force. In Arizona, it is found Arizona Revised Statutes (ARS) 13-409 and 13-410 which cover the use of force and the use of deadly force in Law Enforcement. Complete documentation on these state laws can be found online.
The use of deadly force in law enforcement has multiple components. This article will focus on ARS 13-410.C.1. This section deals with defense of self and others. The use of deadly force by an officer is justified to defend themselves or another when the officer “reasonable believes to be the use or imminent use of deadly physical force”. Again the concept of reasonableness plays into the justification of use of force.
This reasonableness of the force must be judged from the perceptive of being in the officers shoes at the time the force is used. It is not appropriate to judge the officers’ actions based on the luxury of 20/20 hindsight. We have to judge the officers’ actions based on what they knew or reasonably believed at the time the force is used. The concept of “imminent” is also important in this. Imminent does not mean that it is happing right now, imminent means “about to happen”. If an aggressive subject is moving toward a table that has a gun on it and trying to arm themselves against the officer, the officer does not have to wait until the subject has the weapon to use deadly force to stop him.
Police department policies also govern use of force of an officer. The intent of department policy is to provide more specific guidelines in various use of force situations or options that the officer has. These policies generally mirror State and Federal law as it applies to “reasonableness”. Policy may be more specific than current State or Federal standards but it cannot contradict them. Policies can cover the use of specific force options as in how and when to use an intermediate weapon. Most police agencies realize that they cannot expect a strict adherence to policy, and will clearly establish they are a guideline. The reason for this is that no policy can cover every possible circumstance an officer may face.
It is critical that these policies are in line with the officers’ training. Just as important the training must support the ability to adhere to the policy. The policy must also be lawful and reasonable. Creating a policy that states “officers must not fire their weapon unless they are being shot at or subject is actively shooting at someone else” is not reasonable. This is not what society would want. If a subject has a weapon pointing at your loved one, do you want the officer to wait till the subject pulls the trigger?
An example of questionable policy is “officers shall not shoot at a moving vehicle.” On the surface this policy seems reasonable. Bullets don’t stop cars and bullets can deflect off of the surfaces of the car. But, what if a subject is driving on the sidewalk running over pedestrians how else does the officer stop the driver immediately? This language, or an example of, currently resides in many police department policies. The real problem that created this policy language is not the shooting at the vehicle, the problem occurs when an officer unnecessarily places themselves in front of a vehicle that is capable of movement or already in movement and being there creates jeopardy for the officer. The policy and training should guide officers away from this self-created jeopardy. But writing it in a policy and not providing appropriate quality training is a mistake. An agency may be able to say “we have a policy that states…” but if the training does not support what is stated in policy then it is not enough. The training must support the needs of the officer and the community they serve.
Policy is vital for officers to support the needs of the community. Some agencies let political influence or the “flavor of the month” topic sway policy. Other may create policy in a bubble without input from outside sources. Both of these approaches are wrong. The “we are the police” and we know best mentality is not appropriate or just. Communities’ members and true experts need to be part of the policy process. It is a three way partnership: Community, Agency, and officers. They all have vested interest in having solid workable policy.
Evaluating the appropriateness of police use of force is very difficult. Federal law, State law, and Department policy provide the rules and the framework for use of force. When we analyze the adherence to this framework it has to be done objectively and reasonably. That reasonableness must be from the perspective of someone that has the experience and training that an officer has and from the officer’s perspective at the time of the incident. Officers should be held to a high standard which takes into account the sanctity of all life, including their own. Sir Robert Peel is considered the father of modern policing. One of his principles is that the “police are the public and the public are the police”. It is not us versus them, we are all in this together. We are a community and the police are part of it.