Law enforcement officers and the municipality they represent are often named in lawsuits because of an alleged force application. In some cases, officers are found innocent of any wrongdoing. However, in some cases, the officer may have acted inappropriately in applying force, and the municipality must decide whether settling with the plaintiff is more cost-effective than allowing the case to run its natural legal course. One item brought into question is the agency’s use of force policy: Did the officer act within policy? Is the policy lawful? Is the policy up-to-date? Policies can vary from state to state and department to department. However, several topics should apply to all use of force policies.

It is important that agencies establish a central theme when drafting or revising their use of force policy. This theme may or may not include a use of force continuum with an appropriate diagram. At one time, force continuums were commonly used by law enforcement agencies as a training tool. The diagram used by an agency served as a training tool to educate officers on use of force levels and how to apply them (Ciminelli, 2014). Law enforcement trainers thought the progression of force outlined would help officers make better decisions relating to appropriate use of force.

Force Continuum

Today, an effective use of force policy makes it clear that the continuum serves as a training tool and officers are not always expected to follow the progression of force as outlined depending on the circumstances of the situation. The progression of force and subsequent force application is dependent upon the actions of the person confronting the officer, which is often unpredictable. Each step or progression in the force continuum contains documentation of what weapons are available to the officer and what action(s) by the suspect dictate a particular force application.

Regardless of using a force continuum or not, a well-crafted use of force policy should include verbiage from controlling court decisions, notably the United States Supreme Court case Graham v. Connor.  Force applications by law enforcement officers are scrutinized through this particular Supreme Court decision because it is the Constitutional standard for the use of force (Graham v. Connor, 490 U.S. 386, 1989). As such, it is essential that a use of force policy be based upon this decision where applicable.

Graham v. Connor

Per the US Supreme Court decision in Graham v. Connor, 490 US 386 (1989), a use of force application is judged:

• Upon the totality of circumstances;
• From the perspective of a reasonable officer;
• On the scene;
• At the moment force was used;
• Without 20/20 hindsight;
• In situations that are tense, uncertain, and rapidly evolving.

In a use of force jury trial, the judge should instruct the jury on the laws that must guide their deliberations, including the judgment factors established by Graham v. Connor. The judge instructs each juror to look at the incident through the eyes of a reasonable law enforcement officer confronted with the same set of circumstances and possessing the same training as the officer in question.  Additionally, each juror should understand that law enforcement officers are placed in situations that are tense, uncertain, and rapidly evolve. They cannot slow down, or pause, an incident before making a decision.

The Court in Graham also established “objective reasonableness” as the standard for all applications of force by law enforcement officers in the United States (Wallentine, 2009). Before applying a force application, a law enforcement officer must consider the Graham factors to assist in deciding whether a force application is reasonable. The factors include:

• The severity of the crime;
• Whether the subject was an immediate threat to the officer or others;
• How the subject was actively resisting arrest;
• How the subject was attempting to evade arrest by flight.

In many instances, there is a correlation between an officer’s education and familiarity with the Graham factors and the officer’s force applications. A more educated officer will be quicker to recognize and apply appropriate force applications. The officer can include the Graham factors in their report to explain and justify a use of force, further helping supervisors decide whether the use of force was reasonable and lawful.

Weapons

It is also important that each lethal and non-lethal weapon an agency possesses contain guidelines for the issuing, safe and legal carrying, care and maintenance, and reasonable use of the weapon system. An agency may include all weapon systems in one use of force policy or may have separate policies for each (Taser, OC spray, baton, shotgun, etc.). Broad use of force language may be easier to read, comprehend, and reference. Due to interchangeable terminology, for instance, less lethal may also be considered non-lethal or non-deadly, so it is important that policies define which language to use and be consistent throughout the policy. An agency does not need to have a far-reaching list of definitions, but most lists include Lethal and Non-Lethal Force or similar verbiage. In addition, most policies contain the definition of the term reasonable, reasonableness or reasonable belief.    

Additional Considerations

A proper weapons policy ensures several additional items are included, such as:

• Appropriate definitions
• State statutes authorizing force
• When deadly & non-deadly force is justified
• Warning shots
• Shooting at moving vehicles
• Internal/external investigations (external in deadly force incidents)
• Required submission of reports

Each state has at least one statute authorizing law enforcement to use lethal and non-lethal force. Law enforcement administrators should consider including in their policy the legal and constitutional standards that grant his/her officers the ability and guidance to use force on another individual. For example, warning shots and shooting at moving vehicles are typically discouraged. However, shooting at moving vehicles may be justified depending on the situation and if the officer’s actions were reasonable. It is difficult to determine or guarantee where a bullet will travel when discharging a warning shot or shooting at a moving vehicle when an officer’s adrenaline and blood pressure is elevated. Annual training on the agencies use of force policies may also help to ingrain these laws and standards in each officer.

Last, in a use of force incident, most police forces use a comprehensive report that is prepared by the officer that reviews the totality of the incident investigated by the officer’s immediate supervisor. A department’s administration, or member of the administration, is highly encouraged to be part of the review process.

Conclusion

A department’s use of force policy is intended to provide guidance and protection to officers, their department, and municipality; however, some departments routinely neglect their use of force policies by failing to ensure pertinent information is included and failing to administer annual training. Ensuring a force policy includes applicable state laws, judicial decisions, relevant definitions, and other key information that creates an informed and educated membership within the department. Effective officer training allows each officer to make a decision that protects themselves, their agency, and ultimately, the municipality.   

References
Ciminelli, M. (2014). Legal Implications of Use-of-Force Continuums in Police Training. Retrieved from http://www.aele.org/Continuum2014.pdf

Graham v. Connor, 490 U.S. 386. 109 S. Ct. 1865; 104 L. Ed. 2d 443; 1989 U.S. LEXIS 2467; 57 U.S.L.W. 4513.

Wallentine, K. (2009). The Risky Continuum: Abandoning the Use of Force Continuum to Enhance Risk Management. Retrieved from http://kenwallentine.com/Download.html