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Are “De-escalation” Policies Escalating Line of Duty Deaths?

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.

 

References:

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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The Challenges of Police Use of Force

The authority given to police with regard to use of force, especially the use of deadly force, has long been a topic of discussion and analysis.  For decades, researchers, citizen groups, civil rights organizations, police administrators and the courts have been dissecting the issues surrounding police use of physical force, in an attempt to try to understand the causal factors leading to the need for use of force, as well as what constitutes excessive force.  The notion of justifiable use of force has been addressed by the courts in several landmark decisions, however, media scrutiny over a few highly publicized and emotive police use of force encounters, has continued to fuel the controversy of the appropriateness of police behavior during use of force incidents and continues to spark heated debate as to what level of physical force is reasonable and necessary.

Alpert and Smith (1994), in their research, examine the very issue of reasonableness and necessity with regard to police behaviors in use of force situations.  They outline and examine specific conditions that can lead to police use of force and make an attempt to understand and interpret the ambiguous Fourth Amendment concept of “objective reasonableness” and their Constitutional right to be secure in their persons, and the guidelines set forth in Graham v. Connor, 490 U.S. 386 (1989), regarding an arrest, investigatory stop or other seizure of a free citizen.  This legal standard has been one of the foremost guiding principles driving police use of force policy throughout the past several decades; however, Alpert and Smith bring to light the standard of “reasonableness” as a fundamental concept is an unrealistic standard when applied broadly, based on the vagueness of the interpretation of the definition.  What may seem reasonable and necessary to one person may be completely different to someone else.  Additionally, the reasonableness of an untrained citizen may be distinguished much differently than that of a highly trained officer, or even a poorly trained officer for that matter.

Critics of police use of force often analyze the situation well after the incident has occurred. Everything is analyzed from the officer’s frame of mind, the severity of the incident, the physical and social environment, severity of injury, officer characteristics, suspect characteristics, the officer’s level of training and experience and consideration of discriminatory factors to name just a few.  However, something that appears to be overlooked by many critics is the fact that the analysis of these use of force incidents occur after the fact.  As such, those analyzing the officer’s behavior and decision-making are doing so in a sterile environment, free from the stresses and dangers that the officer felt at the time the incident was unfolding.  Most use of force decisions that an officer has to make are made in an instant, without the benefit or luxury of thoughtful consideration and the analysis of prior research or court decisions.  These instantaneous, life or death decisions must be made in response to rapidly evolving incidents occurring in highly charged and unreceptive environments.  This results in leaving the officer, who in the heat of the moment believes he or she is acting within the confines of policy, law and the standard of reasonableness, exposed to the consequences of analysis made by actors outside the paroxysm of the situation, to determine whether the force used was justified and reasonable.

Although Anderson v. Creighton, 483 U.S. 635 (1987), provides immunity from personal liability to officers whose actions, although resulting in otherwise actionable injury, did not violate clearly established law, one of their biggest challenges remains to be the ambiguity of the “reasonableness” standard, especially when emotions are amplified through the inaccurate sensationalism of media reports that tend to surround a use of force incident.

In future posts, use of force management, use of force methodology and the use of force by police, dichotomized based upon theory and practice, will also be discussed.

 

References

Anderson v. Creighton, 483 U.S. 635 (1987). Justia Law. Retrieved 2017-06-15.

Alpert, G. P. & Smith, W.C., (1994). How Reasonable is the Reasonable Man?: Police and Excessive Force. The Journal of Criminal Law & Criminology, 85(2), 481-501.

Graham v. Connor 490 U.S. 386 (1989). Justia Law. Retrieved 2017-06-15.

 

Intellectual Property Disclaimer

  • Users are permitted to read the website and the Information and make copies for their own personal use, for example by printing or storing it. All other use of the website or the information, for example the storage or reproduction of (a part of) the website of Chief Concerns in any external internet site or the creation of links, hypertext links or deeplinks between the website of Chief Concerns and any other internet site, is prohibited without the express written consent of Chief Jody O’Guinn, Carbondale, IL.