Administrative survival after a use of force
Officers do pretty well avoiding injury when force has to be used, however, not so well avoiding career injury after the use of force. The stress imposed during the use of force is over in minutes. The stress imposed by the Department review process, District Attorney review and civil suits will last for months, if not years.
Tactics regarding handling uses of force are the subject of a lot of Department training, the aftermath—hardly mentioned.
There are tactics, however, that can be employed before and after a use of force that will help reduce the possibility of injury to your career, financial status, or even your freedom. There are three concepts that have a direct impact on administrative survival, if mastered. They are Knowledge, Articulation and Accuracy. There is far more to each of these concepts than can be addressed in an article, but an outline can be suggested.
Knowledge: Know the rules. Violation of the rules is the starting place for Administrative Disapproval, suspension days, Boards of Rights, jury verdicts, and even criminal prosecution. What rules? Well there are several layers of rules.
Start out with knowledge of the penal code, which is the basis for your ability to use force in the first place. 835a PC tells you that you can use reasonable force to effect an arrest, prevent escape or overcome resistance. 196 PC makes homicide justifiable when necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty.
Then know the basics of how and why you are sued. Federal civil rights violations usually turn around Title 42, U.S. Code section 1983, the deprivation of any rights, privileges or immunities secured by the Constitution under color of law.
Then there is negligence; a breach of the duty to use due care that causes damage. Throw in false arrest, false imprisonment, wrongful death and a hundred other torts that can be alleged and you can see why the City Attorney’s office is so busy.
Then, since every use of force starts out with a contact of some kind with a subject, there are search and seizure rules that govern that contact. Do you have a right to pull that car over? Do you have the right to order the people out of the car? Do you have the right to search the car? Is it a consensual encounter? Do you have reasonable suspicion to detain? Do you have probable cause to arrest? Do you have cause to do a pat-down? If you can’t answer ‘yes” to these questions, it may result in not only a civil snit, but Department discipline.
An excellent investment would be to subscribe to the California Peace Officers Legal Sourcebook. It details the rules of search and seizure and you can access it through your iPhone or Android device, so it is always with you for reference and study. Search for “copware” in the app store.
Department policies are the next layer of necessary knowledge. Did you de-escalate? Or know why you didn’t? De-escalation is the use of techniques to reduce the intensity of an encounter with a suspect and enable additional options to gain compliance or mitigate the need to use a higher level of force. What about command and control? You must use active leadership to direct others while using available resources to coordinate a response, accomplish tasks and minimize risk. And yes, that responsibility can fall on the senior PII at the scene.
Do you know the use of force policy for the three different levels of use of force?
General use of force must be objectively reasonable to defend yourself or others, effect an arrest or detention, prevent escape, or overcome resistance.
Deadly force requires imminent threat of death or serious bodily injury or preventing the escape of a violent fleeing felon whose escape poses a serious threat of death or serious bodily injury if apprehension is delayed.
Intermediate force covers the use of bean bag, Taser and baton, which are now classified as substantially likely to cause intense or excruciating pain and potential injury.
When can these tools be used? Only when the use of these methods of force have factors that result in a need for the force to apprehend a suspect or defend against a threat of physical harm that outweighs the pain and potential injury that is substantially likely to be inflicted.
Articulation: Know what to say, how to say it, and when to say it. We have all heard the phrase, “if it isn’t written down, it didn’t happen.’ This points out the problem that it is difficult to add things to your report, or interview, after the fact. The resumption seems to be that anything added later is made up. At least that is what the plaintiff’s attorney will say. Better to get it on the record the first time. Having a legal reason to stop someone is thrown away if those reasons aren’t documented. The same goes for your efforts to de-escalate.
Command and control issues need to be verbally addressed, especially in interviews. If you are in fear of great bodily injury, you have to say it. If you had to use deadly force, the use of force policy gives you a list of factors that determine reasonableness. Know them. Any that are a consideration, should be discussed in your report, or interview.
What not to say is anything that you are “assuming’ or ‘guessing.” Also remember that “we” do not do anything, only “you” do things. Keep your observations to those that you personally experienced. Let your partner tell his or her own story. And do a Jack Webb, “only the facts, ma’am.”
There is a simple formula for giving an effective interview about a use of force. Break your story down into three elements that you repeat until you are done. “I saw.” “I thought.” “I did.” For example, “I saw him reach toward his waistband. I thought he was going for a gun and I would be shot. I drew my weapon and fired to stop him.” Then, you next saw something, thought something, and did something, and so on, in chronological order.
Finally, in an interview, if you are not sure of something, don’t be afraid to say, “I don’t know, or don’t remember.” You are not required to have an answer for every question. A guess, an assumption, or a thoughtless answer, if later found to be incorrect, may do damage to your credibility. Tell what you know, not what you think.
When to make a statement, if you are being interviewed, is always after you have been ordered by a supervisor to answer questions. Have the League card read at the start of every interview. Being ordered by a supervisor to answer questions gives you several advantages, potential confidentiality of your statement, protection from use in a criminal case against you, and certain civil protections. It’s like wearing a vest. You never know when you are going to be shot, sued or prosecuted.
Accuracy: Know your limitations. False statements will get you fired and maybe even prosecuted. In today’s climate, there is danger that any inconsistency can end up being classified as “false” depending on the political expediency at the time, media outrage, or inclination of the adjudicator. Consequently, take this concept seriously.
You should understand that in a high stress situation, you may not be able to trust your senses. Lag time may cause you to shoot later than your decision to shoot or keep shooting after your decision to stop. Tunnel vision may prevent you from seeing things right in front of you. Auditory distortion may diminish or eliminate sounds. Distance, color and face distortions occur.
Memories may be missing or distorted, especially if you are sleep deprived. Your senses only bring data to your brain. The brain selects, rejects or ignores the data according to its own inclination. Therefore, you should avail yourself of every opportunity to refresh your memory.
In a Categorical Use of Force, the walk-through may help you. Insist that you be allowed to view your body worn video, or digital in-car video, as is your right, prior to the FID interview. If your memory is different than the video, state so on the record. “I don’t see it on the video, but my memory is that….” Videos have different perspectives, frame speeds and lighting. Don’t let a video talk you out of a memory, but acknowledge the discrepancy on the record.
In situations other than a Categorical Use of Force, if you are writing a report, review all the videos available, including other officers body worn video, security videos, or videos from other sources, to make sure that your report is accurate. A false crime/arrest report can be a crime.
And review all the videos prior to testifying; false testimony can also be a crime.
Conclusion: Obviously, this article only skims the surface of these subjects. Books could and have been written about some of the subjects and the Department has numerous Training Bulletins, Special Orders, Manual sections and Notices that you are held responsible for reading and knowing. Being a police officer in these times is one of society’s most difficult jobs.
Using force guarantees second guessing from an often-hostile media and an always-hostile group of anti-police organizations. But then, no one promised us a rose garden. Train yourself in these three concepts. The tactic of utilizing Knowledge, Articulation and Accuracy will give you the best chance of administratively surviving a use of force.
But don’t forget the other tactics that allow you to survive so that you are here to worry about the aftermath. Be safe.
Be legally careful out there.
