Police Use of Force: Not Always For Public Consumption

Slippery slope oversight and media blitzkrieg renders today's cops impotent.

Posted Feb 24, 2020

Historically, no single aspect of police operations is as visible and controversial as the use of force. It’s an uncomfortable subject in itself, and yields the highest risk in liability through law, policy, and training, and promotes real and perceived anxiety and fear by those who use it (or have it used against them) including both law enforcement and offenders (Kinnaird, 2013). Throughout the last 25 years of my own practice and training in the judicious use of force, not much has changed other than a few advancements in the technology of weapons, additional quibbling over the “best” hand-to-hand techniques and tactics, and more lawsuits.

Gobbled up, further, by a slippery slope oversight era of dashboard and body camera technology, civilian review boards, encroaching government and political moderation via the 14th Amendment, unsupportive and out of touch police administrators, opportunistic attorneys, a steady diet of biased, formal education systems, and the unrelenting public opinion process of decontextualization through mainstream and social media, the “thin blue line” continues to be vilified and rendered impotent

The primary responsibility of any police agency is to provide security, protection, and service to citizens of their community. While many entities comprise a criminal justice system anywhere in the world, it is the police patrol function where most citizen-police encounters take place. Ill-trained or poorly-equipped officers easily destroy years of good police-community relations with unreasonable use of force. Even more significant is that where one unlawful or unethical incident occurs, the effects are felt elsewhere in the world.

In accomplishing their objectives, officers are given great power and authority. With the use of force as the most significant display of authority and control that they possess, the type and amount of force that can be used depend on exercising sound judgment and competence in accordance with legal guidelines, the political environment, and agency policy. Furthermore, the goal with “force” presents a dichotomy of control and self-defense tactics that exacerbate the problem beyond its existence and application.

History of Force 

Throughout history and the international community, the use of force existed for both punishment and crime control. Prior to formal, written codes of law and morality, it was the responsibility of the public to impose punishment for offenders. Through various force options from stoning during the biblical period (3000 B.C. to A.D. 500) to blood feuds of the medieval era (A.D. 500-1000), victims had sole discretion in carrying out punishment mechanisms (Hemmens, 1999). 

From the Middle Ages to the late 1600s, however, control and punishment became more formalized. Procedures were developed for using force against offenders that made punishment less erratic. At the time, both the church and state maintained authority over separate domains of criminality. Following a breakdown of belief systems regarding religion and political power as congruent and reciprocal elements of governance, the church and state separated. Subsequently, the notion of individual rights and “social contracts” gained momentum. John Locke gave rise to this perspective, explaining that the authority to govern should be created between the government and the governed (Locke, 1980 [1690]).

The state only existed, then, to protect the natural rights of citizens. Consequently, the state governed the imposition of the use of force in an attempt to prevent individuals from using it in ways that violated others’ natural rights. Weber (1947) suggested that this philosophy developed into common law authority over the use of force in England. This, in turn, affected the rest of Western Europe and eventually the United States regarding the acquisition of common law to control and punish deviant members of society.

Corruption, Law, and Training 

It wasn’t until 1931 and New York’s Wickersham Commission that the police use of force (as a policy and procedural tactic under the color of law) was brought to significant attention. It was brutality that was the concept discussed in reports that illustrated police tactics as a major institutional problem (National Commission on Law Observance and Enforcement, 1931). It was determined that the police viewed force as a necessary measure for citizen compliance and also as a method of respect towards them as authority figures (Westley, 1953).

By the 1960s, the police use of force was given considerable scholarly attention in respect to public perceptions and tactics. During a period of civil unrest that saw rioting in response to those tactics, President Johnson’s Law Enforcement Assistance Act (LEAA) was created to help eliminate the excessive uses of police force in the U.S., most notably deadly force. With funding for better policy, training, and education, the commission sought to professionalize the criminal justice system by legitimizing the police institution in respect to its goals and tactical procedures. What is quantitatively known about the international police use of force has been discerned over a period of only 30 years, through research consisting mostly of observations, reports, and surveys. Furthermore, the research has emphasized the use of deadly force and to a much lesser degree, less-than-lethal force.

Force is defined as “any bodily impact, restraint, or confinement or threat thereof" (Stetser, 2001, p. 17). The environment that is encountered by the police officer determines the manner in which force is used. In almost all courts of law, an officer must be able to show capability, opportunity, and jeopardy when discerning force options. Did the violator have the capability, such as a weapon, to harm the officer or others? Did an opportunity exist for the violator to use the weapon?  Was there a perceivable, imminent threat to the officer or others thus warranting the use of force? 

Control v. Self-Defense 

The difficult question with using any type of force is twofold: Is it for control or self-defense and to what degree may an officer use it? The use of force is dynamic, as officers are constantly moving back and forth between the need to both control and defend. On one hand, they must be able to control a violator without being excessive in their tactics, while on the other they are required to prevent death or great bodily harm to themselves or a third party. Even more problematic is when circumstances warrant both aspects of force within seconds of each other. This is a result of an incident being tense, evolving, and uncertain.

While control can be defined as the degree of influence that an officer exerts over another in responding to a problem, officers must not only control the subject but themselves as well. While the goal of subject control is to gain compliance or cooperation, self-defense requires a need to articulate an imminent threat of death or great bodily harm (and to respond to that threat, accordingly). If an officer is not controlling or attempting to control a violator and is instead preparing to defend himself or others, he must decide the level of self-protection to employ. Is this merely a case of a simple deflection technique or must he draw his service weapon and shoot? The more skills that an officer can learn and retain will provide numerous options that can provide efficiency and effectiveness.

Techniques, tactics, and technologies in subject control and self-defense baffle the world of police officers well before they baffle the general public—especially when definitive guidelines and application principles are not given or understood. For example, many control techniques lead to pain responses if executed with subject resistance. Continuing or exceeding this use of control beyond compliance becomes problematic from a legal standpoint. That is, once applied, has the subject now become a threat? Are they belligerent? Pepper sprays conducted energy weapons (taser), and batons, which are functional and reasonable, do not control individuals but subdue them and incapacitate them to the point that physical control (hands-on) can be established.

Landmark Cases 

Graham v. Connor (1989) and Tennessee v. Garner (1985) are benchmark cases in the U.S. that have provided clear, legal, and reasonable standards in discerning the appropriate use of force and they have become muddled in knee-jerk responses to social and mainstream media through unreasonable, unsupportive, and restrictive state laws, departmental policies and new encroachments by the legislative and executive branches of federal government.

When considering control, one must consider physical control. While officers are never “out of the woods” in respect to potential attacks, a controlled violator is a safely restrained one. Thus, restrained individuals are physically placed into restraint devices, physically removed from a premise and so forth. Control should also be utilized with the element of surprise. Combining this element with affirmative and decisive application of the proper control technique will allow officers to control a person effectively and efficiently. Physical confrontations with subjects that rely on strength and stamina can be averted, reducing the chance of physical injury to the officer or subject. 

All police and security personnel are taught early in their careers that they must gain control over any situation they are called to. Unfortunately, they are often not provided with the tools to accomplish this task nor a public that understands the laws and policies as written and applied. Actions are based upon policy, equipment, and training under the auspices of the 4th and 8th Amendments of the U.S. Constitution. Eliminating options or a lack of support for otherwise legal applications not only increases the chances of injury or death with confusion and hesitation but also increases the chances for negligent actions on the part of the officer.

Future research, training, communication and policy initiatives can (and should) continue to address the use of force, but regardless of where the police are, applications of force will be always be initiated by similar circumstances and executed through similar methodologies because they work. The court of public sentiment, which drives oversight hysteria, does not.  

Copyright © 2020 by Brian A. Kinnaird. All rights reserved.

References

Graham v. Connor, 109 S. Ct. 1865 (1989).

Hemmens, C. (1999). Use of force: Current practices and policy. Lanham, MD: American Correctional Association.

Kinnaird, B. (2013). Use of force: Expert guidance for decisive force response (2nd ed.). Looseleaf Law Publications: New York. 

Locke, J. (1980 [1690]). Second treatise of civil government. Indianapolis, IN: Hackett.

National Commission on Law Observance and Enforcement (1931). Report on lawlessness in law enforcement. Washington, DC: Government Printing Press.

Stetser, M. (2001). The use of force in police control of violence. New York: LFB Scholarly Publishing.

Tennessee v. Garner, 471 US 1 (1985).

Weber, M. (1947). The theory of social and economic organization. New York: Free Press.