Another day, another headache. What began as a run-of-the-mill arrest of an Estes’ robbery suspect has quickly turned into an unruly, violent confrontation in the patrol car, the sally-port and the hallway. Out of breath, tired, bumped and bruised, you finally get the guy into the booking cell. No time to catch that breath, however, because no sooner is he in the cell than he’s busy kicking, punching, and banging his head against everything he can (and since the cell is nearly all concrete, there’s not much room for choice there). To top it off, he’s seventeen–a minor. The obvious quandary: go in there and get him to stop hurting himself, before you end up with angry parents, angry administration and a lawsuit, and risk more of a confrontation and use of force, or let him “blow off steam,” i.e., no confrontation, allowing you to fast-forward directly to that lawsuit and IA? Whatever you choose, you better be able to articulate that decision, and especially any use of force with more descriptive adjectives than, “combative,” “non-compliant,” or, “resistive.” Bear in mind that your description will not only be reviewed by a supervisor, filing deputy district attorney, or trial deputy but, in the current climate it more likely than not will also be reviewed by a city attorney or deputy county counsel, police chief or sheriff, and in some cases a district attorney determining whether to file charges or issue a Brady ruling against you! Now, then, more than ever, your choice of words and description of your state of mind has a direct effect on your future, administratively, civilly and criminally. And outside of an academy class or a WPIP (Work Performance Improvement Plan), has anyone ever really sat you down and prepared you to successfully articulate your decision in a way that secures not just this arrest, but yours and your family’s futures as well?
Over the years I’ve dissected and defended officers’ use of force in internal affairs’ investigations, arbitrations hearings, court hearings and jury trials as well as Brady reviews. If there is one common theme for the majority of those cases that wind their way into the “problem pile,” it is poor articulation of not only the force itself, but of the mind-set and the facts confronting the officer that led up to the decision to use force. The hope is that this multi-part series of articles will begin to educate officers and deputies in the articulation of uses of force in the field in the form of better, more precise written and verbal reports and in trials or hearings, when testifying about those uses of force. I would also hope that these presentations will, in addition educate and train supervisors and administrations responsible for reviewing uses of force to better revise policies, guidelines and procedures with an eye towards articulating and thereby defending their officers’ uses of force to cut-down on confusion and help prevent issues that may lead to litigation outside of the criminal arena, i.e., administrative or civil.
THE LAW
Although many if not most of us in this field have a good idea of the prevailing law governing law enforcement uses of force, a good starting point for any presentation or article regarding law enforcement use of force should entail a brief reminder of the law in this area and its effect on your decision-making.
A. Tennessee v. Garner
Before we delve into what has become the quintessential case on law enforcement use of force, Graham v. Connor, 490 U.S. 386 (1989), we need to begin with the case that first began to narrow and define the parameters of law enforcement use of force, Tennessee v. Garner, 471 U.S. 1 (1985). While many of us know this case by name, less have an understanding of its holding or the “law” that came out of Garner; even less recall the underlying facts that gave rise to that law.
Remember the “good ole days” of 1974? Watergate, fuel embargos and long lines at the gas station, polyester suits, t.v. shows like, “The Rookies,” “Starsky and Hutch,” and “S.W.A.T.?” (Did I leave out, “The Rockford Files?”) Well, aside from those fond pieces of Americana, there were also different rules of engagement for law enforcement uses of force. In 1974, Tennessee was not only the home to Jack and Charlie Daniels, it also boasted a statute allowing for police officers to use “any means necessary” (including deadly force) to arrest a suspect who was fleeing or actively resisting that officer’s lawful arrest. Step in Edward Garner, a young burglar who, when caught in the midst of a hot prowl, tried to escape from two Memphis police officers. During that escape attempt an unarmed, 5' 7" Garner tried to hop over a chain link fence in the backyard of the burglarized residence to escape arrest. One of the officers, after verbally ordering Garner to, “halt,” shot Garner when Garner ignored the command and continued his attempt to escape. Garner died of a gunshot wound to the head.
Although the Memphis Police Department found nothing wrong with the shooting, nor the District Attorney, Garner’s family sued the Department, City and the officers involved. The case was dismissed during jury trial on a motion for a directed verdict by the City and the Department, citing that the officers’ actions were protected by the Tennessee statute. The Court of Appeals reversed, holding that the Tennessee statute was unconstitutional. The Supreme Court agreed, affirming the Court of Appeals ruling, also holding the Tennessee statute was unconstitutional. The Court also held that deadly force may not be used against a fleeing suspect unless it is not only necessary to prevent escape but also that the facts presented to the officer would lead a reasonable officer to conclude that the suspect poses a significant threat of death or serious bodily injury to the officer or others. In other words, when confronting resistive or fleeing suspects, before using deadly force officers must be able to articulate that the facts confronting them led them to reasonably believe that the suspect posed a threat of death or great bodily injury to them or to others (i.e., their partners, public, etc.). Again, in other words, officers need to articulate, “I thought he was gonna kill me,” “I thought he was reaching for a weapon to kill me,” along with a detailed description of the underlying facts and events that led up to and support that fear. The standard academy line, “Fearing for my safety and the safety of my partner,” does not, by itself (or, many times, even coupled with other facts) allow for deadly force. In many cases, the generic, “officer safety” does not adequately articulate support for any force decision.
B. Graham v. Connor
Any discussion regarding law enforcement use of force usually begins (although this one did not) and unfortunately ends with citing the quintessential case of Graham v. Connor, 490 U.S. 386 (1989).
On November 12, 1984, Dethorne Graham was a diabetic having an insulin reaction and in need of some sugar. A friend drove him to a convenience store to buy some orange juice. Seeing the line at the counter was long, Graham ran out almost as fast as he ran in and got back in the car. Connor, an on duty Charlotte police officer felt Graham’s actions were suspicious and stopped the vehicle. Graham was acting strangely and, although he and his friend tried to explain his actions were due to his insulin reaction, even going so far as to offer to pull diabetic medical decal out of Graham’s wallet, Connor and his fellow officers were not convinced, handcuffed Graham and had him sit in the back of a patrol car while they checked out his story and the convenience store. Once it was determined that no crime had taken place, Graham was let go.
Graham filed suit in Federal Court, alleging his rights were violated under The Fourteenth Amendment to the Constitution and 42 U.S.C. Section 1983. The case was dismissed on a motion for a directed verdict. The dismissal was upheld by the Court of Appeals. The Supreme Court reversed, holding that the lower courts had used the wrong test in determining if Connor had used excessive force. In coming to that conclusion, the Court stated that any review of a law enforcement officer’s use of force must fall under the Fourth Amendment’s “objective reasonableness,” standard of analyses. Some of the language of the Court (what everyone does seem to remember from the case, of course) gives definition to that analysis:
The Fourth Amendment’s ‘reasonableness’ inquiry is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.” Sounds great, huh? Especially in light of California Penal Code section 835a, which allows an officer to use force to make an arrest, overcome resistance or prevent escape. PC 835a also states that the officer need not retreat, and will not be deemed the aggressor in the implementation of that force when he or she does not retreat. Sound even better? Add to that P.O.S.T. Learning Domain 20, that allows for officers to use force for the same reasons as set forth in PC 835a, and adds that the use of “personal weapons” may be necessary and reasonable, dependent on the circumstances, to again overcome resistance, be it active or passive, and one wonders what could ever go wrong? Sounds like an officer’s training seems to mirror the law, and vice versa, both taking into account what an individual officer is facing in the field, not how some Monday morning Brett Favre may have reacted in the comfort of his couch, office, or jury deliberation room. You probably already guessed that there wouldn’t be a need for an article (or series of articles) if there wasn’t a hitch.
Yes, there’s a hitch.
RULES OF ENGAGEMENT
Comedian Jeff Foxworthy once described an “encounter” he had in a bar in Atlanta, Georgia. He had just come from working a few months in New York and had begun to “acclimate” to the culture there. Fast forward to his night in Atlanta, where, while sitting in a smoky bar nursing his beer he accidentally spilled a bit on the linebacker-sized gentleman sitting next to him. As Foxworthy was in the midst of turning to apologize he felt a cold mug of beer being broken against his face. Dazed, confused, bleeding on the floor, he looked up at his assailant and complained that in the Big Apple, that would never happen.
“First of all, in New York, there are rules.
Rule 1: Establish that there may be an issue:
‘Hey, you got a problem?!
‘I don’t got a problem–you got a problem?!
‘Yeah, YOU’RE my problem!”
Now that we’ve established that there IS in fact an issue, we can then establish who the parties are:
Rule 2: Establish the parties:
‘You know who you’re messin’ with, ah?!
‘Who I’M messin’ with? Who I’M messin’ with?! You got any idea who YOU’RE messin’ with?’
Now that we’ve established there’s an issue, and the parties involved, there needs to be some notice given about the potential consequences should the issue continue on its present path:
Rule 3: Notice
‘You know what I’m gonna do to you? Eh?! Yeah?! I’m gonna rip off your head and spit down you neck!’
‘Yeah?! I hope you got an organ donor card ‘cause when I’m done with you that’s all that’s gonna be left!’
So, we’ve established there’s an issue, we’ve established the parties, and there’s been notice given of the potential consequences should the issue continue on its present path. Now, and only now the linebacker-sized gentleman has full authority to swing that mug in my face!”
Sure, Foxworthy’s skit may be a bit overboard for comedy purposes, but in reality, his three steps aren’t that different from what happens many times to an officer facing a potential confrontation in the field. Factors to think about: 1) what is the underlying reason for the contact in the first place; 2) who is it, i.e., what is the nature of the contact? Suspected felon or jay-walker, and 3) before using force, was the suspect on notice either verbally by the officer or by nature of his or her own actions, reasonably should have known that his actions would lead to an officer use of force?
With regard to the third prong, some form of notice, California Criminal Jury instruction 2670 states unequivocally, in pertinent part, that:
“In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or an infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer’s presence.
The officer must tell that person that the officer intends to arrest him, why the arrest is being made, and the authority for the arrest. The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody. The officer must also tell the arrested person the offense for which he or she is being arrested if he or she asks for that information.”
So, considering the above (which, if you noticed, Cal Crim 2670 does not seem to apply to felony arrests), you may be asking, when is a good time during an encounter that is, “rapidly evolving” to take a moment with that warm, friendly suspect and announce that they are now under arrest? [Note: Cal. Crim. 2670 does NOT apply to detentions, merely arrests. It stands to reason, therefore, that when detaining that suspect, no announcement as to why is necessary, legally. It may, however, be good form to attempt to inform the suspect, when the circumstances allow, as to 1) the issue involved, 2) the parties (the officer with a lawful right to investigate, and a suspect, with a duty to comply with that officer’s lawful orders) and 3) the consequences of non-compliance, i.e., notice (again when the situation allows, obviously). It also looks much better to reviewing supervisors, deputy district attorneys and jurors.]
The standard thinking for years has been that most if not all use of force encounters spark our defense mechanisms into action, and those mechanisms and the resulting encounters invariably have two parts to them: fight or flight. Lt. Col. Dave Grossman debunks that theory, however, in the very first chapter of his book, “On Killing.” (Grossman, David A., Back Bay Books/Little, Brown and Company, 1995) [FN.1] Grossman states early on, and then goes on to support his point, that every force encounter actually has four potential parts to it, not two: Fight, Flight, Posture or Submit. As we will see, below, nearly all of force encounters between law enforcement and suspects and/or the public (who soon enough become suspects based on the encounter) entail one, or more than one of these four elements. It is the poor description of these elements, be it in a use of force report or on the witness stand, which has led to many administrative, criminal or civil problems for the officer and/or his department. Therefore, an overview of these four elements, their role in the encounter and some tips and tools of how they should be described by the officer in articulating the reason why the force was necessary will afford those officers reading this series a better understanding on how to articulate these encounters in order, hopefully to avoid that call to the Internal Affairs office or worse, arraignment court or Federal Grand Jury.
FIGHT, FLIGHT, POSTURE OR SUBMIT
Lt. Col. Grossman describes that one of the inherent problems combat soldiers and, by comparison, law enforcement officers have experienced over the years is a lack of understanding of how their and their “enemy’s” minds work during an encounter. Grossman points out that while the accepted model for encounters for years has been, as stated above, fight or flight, combat soldiers and law enforcement officers experience two other elements that play an equal if not at times greater role in those encounters: posturing or submission. Why is this significant? Because as Grossman notes later in his book in greater detail, most soldiers do not want to kill a fellow human being, regardless of the nature of the war or combat. Officers are no different. Knowing what the elements are of a use of force encounter, therefore, may actually help that officer not only make decisions in the field to help de-escalate an encounter, but to also better describe an encounter that does eventually evolve into a use of force. Of the four elements noted, above, the third element, “Posturing,” will be the one this article primarily focuses on because it is probably the most pervasive of the elements in nearly any encounter an officer may have on the street, let alone the one whose failure most often evolves into a use of force.
A. Flight and Submit.
Although Hollywood may seem to disagree, flight and submission are not usually options for an officer in the field when facing a suspect who is simply not going with the program. Add to the picture an openly hostile suspect, or one that has displayed signs of being armed and dangerous, and neither of those two options are readily applicable. However, waiting for back-up often times is the best choice which, if an officer were to think about it, is related to the flight option. How so? Many officers make the mistake of reading the language of 835a as giving them a blanket right to use force. It does not. It merely states that an officer need not retreat and will not be deemed the aggressor if he or she does not retreat when attempting to effectuate an arrest, prevent escape, or overcome resistance. There are times, however, when either waiting or retreating to wait for back-up to arrive is the most sensible option and, in the end, the safest option. And when that turns out to be the case, an officer’s decision to not retreat or wait for back-up may be seen after the fact as unreasonable, Penal Code section 835a notwithstanding. Many agencies, for example, have policies against more than two vehicles engaging in a pursuit. Again, why? Because depending on the pursuit, the underlying offense, and how that pursuit evolved, it may be more harmful to the public and the officers to widen the scope of the pursuit. There are also times when a suspect who is armed may be better held at bay while waiting for back-up than confronted, depending on the circumstances. Flight, therefore, although not a prevalent option, when seen as a form of, “officer safety,” may in fact have its place given the right circumstances. When not chosen as an option by the officer, the reason for its rejection as an option should be articulated if the officer want to avoid potential problems by they administrative, criminal, or civil in nature.
B. Fight.
This option is, obviously, the force encounter itself. It will be discussed, therefore, in Part III of this series in conjunction with specific tools an officer can employ in articulating the need for the force and the details of that use of force.
C. Posturing.
Probably the most prevalent option that an officer experiences and utilizes listed by Grossman is posturing. In the words of Lt. Col. Grossman:
Adding the posture and submission options to the standard fight or flight model of aggression response helps to explain many of the actions on the battlefield. When a man is frightened, he literally stops thinking with his forebrain (that is, the mind of a human being) and begins to think with the midbrain (that is, that portion of his brain that is essentially indistinguishable from that of an animal), and in the mind of an animal it is the one who makes the loudest noise or puffs himself up the largest who will win.” (Grossman, “On Killing, p.8)
In police work, until physical force is actually deployed, be it hands on or with a weapon, most of the encounter is posturing. Command presence is a form of posturing. Verbal identification is a form of posturing. Threat of force, such as threat of use of pepper spray, baton, taser or firearm are also forms of posturing. As stated above, California Penal Code section 835a allows law enforcement officers in California to use reasonable force to effect an arrest, prevent escape or overcome resistance. It doesn’t say, “to win.” The handicap officers face in the field during these encounters is that while the suspect wants to “win” at any and all costs, the officer is charged with merely “arresting,” “preventing,” or “overcoming.” In other words, the officer’s goal, based on his or her training and the law, is to control and secure. In reaching that goal, an officer is trained that there will be times that he or she must deploy even greater force than that which he or she is facing in order to effect that arrest, prevent escape, or overcome resistance. [FN.3] Posturing, more often than not, meets that goal. Remember Sean Connery in the movie, “The Untouchables?” Connery, the stereotypical Irish Chicago cop while being threatened at knife-point in his apartment by a crony of mob boss Al Capone, whips out a gun and says to a now frightened thug, “Just like a dago to bring a knife to a gunfight!” Connery’s actions in the movie (not his colorful language) were just what we would expect of an officer: a show of greater force to overcome the adversary and then, hopefully, force him to submit, i.e., control and secure him. That show of force is a form of posturing. Connery didn’t fire on the thug in his apartment. He merely sought to chase him out, maybe to make an arrest, or have a chance to “call for back-up.” Unfortunately for Connery, though, his posturing didn’t work on the other thug waiting outside, this time armed with a machine gun. Again, the Connery-the-officer did not have a “win at all costs” state of mind but, rather, control and secure (or he would have simply shot the first thug rather than chase him out of his apartment). The natural result of that mind-set also becomes the disadvantage officers face when encountering a suspect who is non-compliant, passively or actively resisting that officer’s commands; officers need to worry about not only their own safety and security, but also others around them including the suspect! The suspect, however, has none of these concerns. That disadvantage, unfortunately, is inherent in the system. Officers need, then, to intellectually realize that this disadvantage exists and be able to articulate that disadvantage by describing their thought processes, decisions and resulting actions of the before, during and even after of the encounter to support and give reason for the force used.
In the example of the Foxworthy rules of engagement, above, much if not all of Foxworthy’s skit of the two parties in the bar was an example of posturing. It is this element that most times drives the encounter. When posturing doesn’t work, there is a resultant shock created by that failure, especially for law enforcement who are trained, and experience 98% of the time that the posturing does in fact work. It’s is supposed to work. The problem an officer faces, as described above and by Grossman, is that most officers, based on training, instinct, and even common sense expect posturing to work. It’s the shock of the ineffective posturing that many times drives the officer’s choice of force, i.e., that next step, in order to ensure control of the suspect and situation. In those cases, the officer most times is left with no choice but to raise the level of the posturing, i.e., the level of threat or, when that fails, fight. That means using force. It’s important to realize that the officer is reacting; it is the suspect by his actions or non-compliance (or both) that is driving that decision.
Who decides how much force the warrior has to use? Who ultimately makes the decision that deadly force is needed? The suspect does. The enemy does. The threat does. He fights, you fight. . . . He makes that decision for you. He has the option to surrender, and your job is to respond with what society says is your right and responsibility to do.” (Grossman, “On Combat,” p. 146)
The overall goal is always to control and secure the suspect and the situation. But the immediate goal is NOT to have to fight, i.e., not to use force. When that goal is not achieved force must be used to accomplish the overall goal.
I can’t begin to state enough not only the importance of understanding and utilizing posturing in the field, but also to properly articulate that posturing and its failure in reports and testimony. The public at large has a duty, as citizens, to submit to the lawful, reasonable orders of a law enforcement officer. [FN.4] Period. A citizen may disagree with the tactics employed, may disagree with the reason for the order. But if the order is lawful, and reasonable, especially during the investigation of a crime or the arrest of a criminal suspect, the citizen has a duty to comply with that order. Levels of command presence and threats of force if the suspect does not comply are forms of posturing. In the overwhelming majority of encounters, the suspect or non-suspect citizen complies. However, when the officer is faced with non-compliance, which means that the posturing that he or she has been trained to utilize did not work, and force is necessary, it is that failed posturing and its natural response that needs to be articulated properly. Most importantly, the shock an officer experiences most times, the disbelief that the posturing is not working, has an element of fear. And fear is one of the key elements of any case of self-defense, defense of others or defense of property which in the end is what any use of force really is (or should be).
Posturing is supposed to work: “I’ve got a badge, I’ve got a gun, and these guys aren’t listening to me!” [FN.5] When suspects don’t listen under those or similar circumstances, the ensuing shock of that non-compliance and the resultant fear is a natural, human reaction and needs to be understood that way. Shock or, better fear is a necessary element in articulating a use of force encounter. It is the reaction to the fear and again, its articulation, that makes all the difference. In his book, “Force Under Pressure: How Cops Live and Why They Die,” Dr. Lawrence Blum notes,
“The tragic irony is that it is simple for police officers to cope with and command emotions, physical reactions, and mental activity if they possess the tools and knowledge of why these reactions are occurring, and condition and train themselves for victory.” (Lantern Books/Booklight, Inc., 2000), p. 31.
In our context, possessing the knowledge of the dynamics of use of force encounters and the tools to describe them by being able to articulate the reasons for those emotions, physical reactions, mental activity and officer response decides the ultimate success of the encounter which is, in the current climate, how that encounter is reviewed and judged by the administration, the District Attorney’s or United States’ Attorney’s Offices and criminal and civil juries. Yet more often than not, aside from those cases of poor judgement or training (or both), what usually goes wrong was summed up well by a sarcastic, sadistic Strother Martin to a beaten but not broken Paul Newman in, “Cool Hand Luke, “What we have here is a failure to communicate.”
ARTICULATING USE OF FORCE
Now that we’ve discussed the some of the prevailing law and experiential factors surrounding use of force encounters, we need to discuss the actual articulation of the force taking into consideration those factors. If you can remember back a couple of pages ago to the beginning of this article we spoke about a case of a “combative” juvenile who, after an Estes robbery fought with store security, your partner, and YOU! Fast forward to the suspect kicking out your partner’s patrol car window, fight in the sally-port, fight in the hallway, and now banging his head, kicking and punching cell walls, and you’re left with a quandary–do I go in and put an end to his hurting himself and put myself at risk, or stay out, let him maybe “cool” down or wait for a supervisor and risk the suspect (juvie, don’t forget) seriously injuring himself.
Do the letters, “IA” mean anything to you?
Add to that boiling cauldron that when you open the door, Taser in hand, he makes the all so common, “furtive movement.” So, naturally, you Taser him. And what’s your description in your supplemental report? Use of force report? Internal affairs investigation? “He was combative, so I deployed my Taser.”
Next question: what’s your description to your attorney in your criminal case for violation of Penal Code section 149, Battery Under Color of Authority?
In the above example the decision to tase a suspect in a holding cell after the officer opened the door, i.e., opened “Pandora’s Box,” should have a bit more detail than simply, “he was combative.” Because once a department decides that there may have been misconduct, in this scenario, excessive force, it is nearly impossible to change their minds (obviously the feeling is that the wonderful description at the “IA” is more your attorney’s choice of words than yours, or why, then, didn’t that description make its way into your report?).[FN.6] And if that’s not hard enough, try changing the minds of a prosecutor’s office once the case has been filed.
In previous sections we discussed some general legal principles regarding force encounters as well as some of the dynamics leading up to the encounters themselves. Usually, however, it’s poor or ineffective description of those encounters that create problems for the officer and/or his department. In this section, therefore, we will go over some specific, practical tools officers can utilize to better describe their uses of force both in their reports and on the witness stand.
A. “What we have here is a failure to communicate.”
In Hollywood, by the time the cop (“good guy,” remember?!) shoots or wacks the suspect (“bad guy,” remember?!), the audience has seen enough of the bad guy and his or her (it is 2010, after all!) despicable conduct that any force used is never really enough. Remember the last scene in the first, “Lethal Weapon,” movie? Bad guy Gary Busey on the ground, seemingly incapacitated. Mel Gibson (he was ok, back then) and Danny Glover (he was always ok!) hugging each other, and then the music started to change, the screen went into slow motion, and you, we, the audience, knew it wasn’t over? WE knew, but Mel and Danny had no idea, until the bad guy began to get up and tried one more time to shoot our two heroes. Now, in reality, was he secured? No. Had he been patted down or cuffed? No. Would the audience have had a second thought if, before Busey tried one last time to kill Mel and Danny, they shot him a few more times for good measure?
Again, no. Why?
First off, it’s Hollywood. It’s not real. But even more than that, the audience got a chance to see first hand just how despicable and dangerous the bad guy was. In real life, however, unless that report or that testimony can also paint a picture of a dangerous suspect or a volatile situation, the audience (your sergeant, lieutenant, captain, chief, city attorney, district attorney, newspaper reporter, juror and/or judge–get the picture) will not agree with an officer’s use of force, regardless of how justified that use of force may be. So, how to articulate uses of force to gain the confidence and support of any and all who may be in that officer’s potential audience?
B. Imagery
Most people think in terms of imagery, meaning, when thinking of something, anything, we usually see pictures in our minds’ eyes, not words or sentences. That being the case, when describing something to someone such as an event or a person, that description should also be image-oriented or, better put, image-conscious. An example: when asked by defense counsel in court how close the defendant was to the officer when the officer first “laid hands on him,” many officers are programmed to respond with a number, like, “two feet, three feet,” etc.
Wrong.
Why is that wrong, you might ask (and if you didn’t, I asked for you!)? Because the way most people’s minds work, when stating that usual, “two, three feet,” the FIRST thing a person sees in his or her mind’s eye is either a ruler or a yardstick, neither of which depict the immediate danger or threat that the officer faced and the need to use force to overcome that threat. A yardstick is not threatening (unless, of course, you’re from the old school and it’s being used to whack some knuckles of a rebellious kid back in the day of corporal punishment and Oliver Twist). A ruler is also not threatening (see same sarcastic reasoning, above).
Understanding this, let’s describe it a bit differently. Same question from defense attorney, but now the answer is, “Close enough where he could reach out and grab my gun, he was a threat,” or, “Close enough where I could feel his breath on my face, he was a threat.” In those examples, what’s the first thing that pops into your mind? Not a yardstick or a ruler, right? And if the audience sees, in its minds’ eye, a person reaching out and grabbing the officer’s weapon then, even though it never actually happened, to that same audience, it becomes real, because they can picture it, they have, in fact, pictured it. You’ve won that exchange. But let’s go a step further. Many encounters begin before the force is used, and keep going until after the suspect is secured. How, then, does an officer describe each and every individual force encounter in a way that mirrors the effectiveness of our example above?
C. Scenes
Just like in movies or television, building up to an encounter allows the audience to support the officer’s use of force once the need for the force becomes obvious. It’s the building of that description then, laying the foundation of what occurred before the decision to use force was made and, often times describing what was happening during the use of force that allows whomever is reading the officer’s report or listening to his or her testimony to agree with and support that use of force. One effective way I’ve learned and employed through years of trial work and arbitration hearings of building that description which works to support officers’ uses of force is to carve out the entire encounter (and its pre-cursor, i.e., those events that led up to the encounter) into scenes, like scenes from a movie. What each scene is made up of is dependent upon the specific encounter itself and the officer experiencing it. But every scene must always consist of three parts or prongs: 1) what the officer saw, heard, or physically felt, i.e., physical sensations; 2) how did that make the officer feel, i.e., thoughts, emotions; and 3) based on one and two, what did the officer do, how did the officer act. Additionally, all three parts must be stated in the order I just described before moving on to the next scene.
1. Seeing + Hearing + Feeling = Believing.
The first part of the scene must consist of the officer’s sensory perception, what the officer heard, saw, or felt. In the example from our introduction, the Estes robbery suspect, the officer could have articulated, when opening that cell door, that he saw the suspect make what appeared to him to be a lunging movement, while he heard the suspect say, “Come on, you want some?” A bit more descriptive than merely, “combative.” And, if the same techniques are employed when describing the suspect’s previous actions, from fighting with store security (“I saw him punching at and kicking the security officer with a closed fist and the tip of his steel-tipped boots”), to trying to kick out the patrol window (“I saw the bottom of his feet consistently kicking at the middle of the window and the window buckle as if it were about to break any minute”), fighting in the sally-port (“As we attempted to escort the suspect from the car he turned on my partner and myself and threw his head forward as if attempting to head butt me while kicking at my ankles, feet and groin area”), fighting in the hallway, etc., then by the time we even get to the opening of the cell, the audience may be wondering why the suspect wasn’t already tased several times over and why even wait for that attempted lunge or “furtive movement?” And when that confrontation is described, it becomes the icing on the cake as opposed to a separate incident of a juvenile suspect tased in a booking cell.
2. How Did It Make You Feel –Thoughts, Emotions.
Prosecutors are great at asking civilian witnesses, especially victims, “How did that make you feel?” Such questions elicit sympathy, and subtly tell the audience that this person is a victim or, at least, a sympathetic actor in the event being described. Police officers, however, are rarely asked this question. That’s a mistake. Every justified use of force is a case of either self-defense, defense of others, defense of property or a combination of any or all three. And in cases of self-defense, defense of others, or defense of property, the person claiming the defense (in this case the officer) must have both a reasonable and honest belief that his or her person, or the person/people he or she is defending, or their property is, in fact, in danger of harm. The officer is at the very least a sympathetic actor in the incident being described; most times the officer is a victim. The officer’s mind-set, then, which include emotions the most prevalent and relevant one being fear, is the most significant and material fact in any use of force encounter. To ignore that mind-set or those emotions and thought processes in the description of the event, be it a report or testimony, is a fatal error made by many officers.
In our Estes robbery example, above, to simply describe the suspect as, “combative” or, better, “attempting to lunge,” still leaves out the real reason why the taser or force was deployed and that is, the officer felt threatened! He was afraid! Descriptions like, “I thought he was going to attack me,” or, “I thought he was going to kill me,” tell the audience why the next step, what the officer actually did, i.e., deploy force, was necessary. Without that, the officer leaves that crucial piece of the encounter up to the audience to decide. And if the decision is unfavorable . . . , well, you get the picture.
Now, many of you may be saying that sure, maybe I felt afraid, but what makes you think my sergeant or the district attorney would have felt afraid? Lest you forget, you’ve already described, in part 1 of the “scene,” in great detail, what you saw, heard, and physically felt. So by the time you get to how you felt emotionally, to your audience, your feeling is not only honest, but more importantly, reasonable. Which leads us to the third prong in the scene.
3. What You Did–Your Actions.
Now that the officer has described what he saw, heard and/or physically felt, and his emotions and thought processes based on his sensory perceptions, it is the logical next step to describe the officer’s actions, i.e., what he did. And it also allows the audience to reach the same conclusion before the officer even describes his actions, so once the officer does describe his actions the audience is hearing what they have already decided should be done, based on prongs one and two in the scene. Which means the officer is no longer convincing the audience to agree with his or her actions; on the contrary, the officer’s description is simply supporting a conclusion of what was necessary that the audience has already reached! This is one of the most effective ways of persuasive communication. Let’s lay it out:
1) What you saw, heard, or physically felt, which drives almost every person’s
2) Emotions, thought process, how those events made you feel, which drives almost every person’s
3) Actions, i.e., what you did based on what you saw, heard, and how it made you feel.
When the officer articulates the entire contact in such a fashion, breaking it up into scenes and then breaking those scenes up into three parts, or prongs, describing each prong in detail, the audience, any audience, be they the watch commander, administration, district attorney or a jury cannot help but follow logically not only what the officer did, but also why and, more importantly support those decisions.
In summation, uses of force are, unfortunately, a part of law enforcement (that is, the enforcement of our laws) and are, because of changing attitudes and mores of society steadily becoming a much more prevalent part of law enforcement. With the increase in the number and nature of uses of force comes the need of individual officers and deputies and their agencies to be able to defend those encounters on several different fronts. Knowing some of the basic dynamics that drive use of force encounters, coupled with learning how to properly and accurately articulate those dynamics gives the men and women who defend our society the tools to not only succeed in the field against that volatile, combative suspect but to then also succeed on those other fronts now so influential to an officer’s or deputy’s careers and futures: the station, the newspaper.
Footnotes:
[1] This book, along with its follow-up, “On Combat,” (Grossman, David A., PPCT Research Publications, 2004) should be required reading for all law enforcement personnel.
2 In both Lt. Col. Grossman’s books, although written primarily for combat soldiers, the Lt. Col. Makes it clear that the principles and theories have equal application to the men and women of law enforcement who also experience many, if not all of the conditions of combat on a daily basis while patrolling and protecting our streets and communities.
3 See California Penal Code section 835a; P.O.S.T. Learning Domains 15 and 20.
4 See California Penal Code section 148(a).
5 One of my clients who, while alone and holding two felony suspects at bay at gunpoint could not believe that not only was his “posturing” not working but, in fact, the suspects were actually verbally challenging him!
6 See NLRB v. Weingarten, Inc., (1975) 420 U.S. 251 where the United States Supreme Court recognized the inherent difficulties an employee faces when trying to disprove work-related allegations of misconduct. It acknowledged the fact that once the case had made it passed the initial investigative stage, “The employer may then be more concerned with justifying his actions than re-examining them.” (Weingarten, supra, 420 U.S. at 264)