The authority of the police to use “reasonable and necessary” force to effect arrest has been not only one of the most debated powers granted to police, but most likely one of the most misunderstood as well. The term “reasonable and necessary” force is based on the ambiguous “reasonable person” standard. At best, it leaves the police in a perilous conundrum of trying to find that “reasonable person”, and in the blink of an eye, determine how that person would apply the use of force in separate, widely varying and quickly evolving incidents. The lack of a clear, definitive definition has left the police scrambling for ways to defend themselves and protect the public without the nagging fear that their actions will result in claims of excessive force and career ending litigation.
Enter the regeneration of “de-escalation.” The notion of “de-escalation” is not a new phenomenon and has been, in one way or another, part of every use of force continuum for decades. Finding ways to slow down the scenario, provide officers with less-than-lethal alternatives and reduce the need for the use of deadly force have been commonplace in most use of force policies. Use of force begins with the mere presence of an officer and can be escalated through verbal or visual commands, soft empty-hand control techniques, hard empty-hand control techniques, intermediate weapons (pepper spray, electro-muscular disruption devices), impact weapons, and concluding with deadly force, if necessary. However, even with this wide continuum of force options, the standard of the “reasonable person” remains on a wildly swinging pendulum that is subjectively and inconsistently applied.
The outcry for a nationwide de-escalation policy has brought police use of force under further scrutiny, the inference being, government on a national level replacing local use of force governance historically implemented by local law enforcement. This poses a question of effectiveness, efficiency and accountability. Expecting an already overburdened, understaffed and inefficient federal government to judiciously administer, scrutinize and enforce local law enforcement use of force policies and incidents is unreasonable, especially to a reasonable person.
Studies have shown that agencies without de-escalation policies experience a much lower officer mortality rate than those agencies with de-escalation polices in effect. De-escalation can work, just not in every incident. Individuals experiencing mental illness, those under the influence of drugs and/or alcohol or those with predisposed tendencies for violence usually are not the most rational people to deal with. In those incidents, de-escalation policies may be ineffective based on the actor’s irrationality and inability to cooperate. In the majority of use of force incidents, if the actor would just do as the officer requests, excessive force would never even be a consideration. Still, use of force protocols cannot be abandoned. Officers are placed in situations in which they cannot retreat, and a use of force incident can arise, causing the officer to make a split-second decision based on his or her training, experience, the law and department policy. The threat of disciplinary action, negative media attention, frivolous litigation and loss of livelihood further muddle the decision-making process, confusing officers and causing them to pause in moments where life or death decisions need to be made.
There is no panacea for this problem. We must continue to work as a society to help the police help us. This will require giving the police less ambiguous laws and unrealistic policies that will allow them to make clear-cut decisions without the fear of being held to a standard that is ever-changing.
Alpert, G. and Smith, W. (1994). “How Reasonable Is The Reasonable Man.” The Journal of Criminal Law and Criminology: Vol. 85/2, 481–501.
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