The Less Lethal Option for American Policing: Exploring Less Lethal Use of Force
Whitepaper
TASA ID: 3454
The Less Lethal Option for American Policing
Exploring Less Lethal Use of Force
ABSTRACT
One of the most controversial policies regularly questioned in the public domain is police use of force. Through the news media, we are regularly apprised of situations in which police are alleged to have used excessive force during the apprehension of a suspect or an incident in which a suspect was killed as a result of police action. This essay is an attempt to enlighten the reader on various issues regarding police use of force and some of the choices police officers may face in which there is no desirable outcome but the use of force to preserve life.
INTRODUCTION
It is generally agreed that the "professional era" of policing began in the late 1960's with the passing of the Omnibus Crime Control and Safe Streets Act in 1968. The act legislated that federal funds and resources would be provided to local agencies to enhance their training and equipment (Gaines & Kappeler, 2008, p. 85). This coincided with the height of the civil rights movement, as well as numerous instances of civil unrest that occurred in the United States from Watts to Washington.
Before 1970, an established policy on the use of force by police officers to effect an arrest was simply nonexistent. Generally, a patrol officer only had four options when it came down to the use of force. He had his voice, hands, night stick (baton), and revolver. Prior to the advent of Mace, there was no generally issued, less lethal option other than blunt force trauma delivered by striking with a wooden baton (Wright, 2010). The Baltimore City Police Department was considered one of the leading law enforcement agencies in the nation at this time, and the guidance they received regarding the use of force was simply "do what you have to do" to survive an attack or make the arrest (Wright, 2010). However, by 1974, an actual use of force policy had been put into place that gave specific guidance on the application of force to bring a suspect into compliance with police officer commands (Goode, 2010). Even then, academy instructors emphasized the ability to write "thorough" reports as the best defense against any allegations of excessive force (Goode, 2010).
Along with the development of use of force policy in the mid-1970's, two additional tools had been added to the police officer's road gear. These two additional items would help in establishing better police officer safety and help to curtail the need to use force. The first item was chemical irritant, which was popularly known as Mace. This allowed an officer who was alone to stand off and project an irritant that would help immobilize an attacker when deadly force was not necessary. The second item was the police radio. This piece of issue has become the most important thing a patrol officer can carry in his road gear. With the radio, a police officer can call for additional police officers or medical help. Before the handheld police radio, those agencies that had two-way radio capabilities lost communications as soon as the officer left his vehicle.
There is now a generally recognized use of force continuum in United States policing. The details of policy may vary between agencies; however, most would agree that there are seven steps in the application of force. These steps may generally be agreed upon as 1) verbal persuasion, 2) unarmed self-defense or hands-on, 3) chemical irritant and/or electro-muscular inhibitor, 4) baton, 5) police dog 6) presentation of deadly force, 7) deadly force. With each of these applications of force, there are established criteria that must be met before the officer escalates to the next step, and therein lies the purpose of the use of force continuum.
AN OFFICER'S FIRST BEST TOOL
Often the most effective tool a police officer has is his/her voice and ability to confidently give commands to control a situation. In many instances, a commanding, authoritative voice command is all that is required to bring a suspect into compliance. In many cases, the officer does not even need to raise his or her voice. A key component to voice commands, as most street officers may tell you, is body language. Projecting an authoritative posture and a dominant presence within the situation will often deter suspects from forcing escalation, regardless of that force which has already been presented. Voice commands may and should be utilized continuously as officers escalate through the use of force continuum.
Voice commands will serve two primary purposes. First, they will establish the officer's authority with a "take charge" attitude. Experiencing the image and presence of a uniformed officer, those less familiar with the criminal justice system will be quick to comply, while those who have had more experience through previous arrests and incarceration may be more likely to resist. Second, verbal commands will tell the suspect exactly what the police officer wants the suspect to do. When suspects understand exactly what is expected of them, confusion is eliminated and resistance is diminished.
As circumstances require an escalation of force, authoritative voice commands will serve as a warning both to the suspect and bystanders that the officer is attempting to use as little force as possible to bring the suspect into compliance. Should deadly force become necessary, articulate and intelligible verbal commands that are heard by third parties will be of vital importance when an investigation is completed post-incident.
Aside from utilizing verbal commands for compliance, appropriately applied interpersonal communication skills can go a long way in diffusing volatile situations before force or arrest is necessary. Police officers often become master negotiators through their day-to-day duties whether dealing with motorists or felons. The ability to use voice commands and verbal communication skills is of vital importance for successful police officers.
A TOTALITY OF CIRCUMSTANCES
As the use of force escalates in a given situation, police officers begin to assume more personal responsibility for the actions they take. Policymakers often establish the use of force continuum based on a rigid step-by-step process. They will generally lack the understanding or situational awareness that the police officer on duty finds necessary.
Many officers find themselves at odds with the criminal justice system they were hired and trained to support. It is often difficult for someone who has never encountered a life threatening situation to understand the psychology of such an event, let alone understand the decision making process that takes place in a life or death situation (Pinizzotto, Davis, Bohrer, & Cheney, 2009). We are a society indoctrinated to police use of force primarily through movies and television. When prosecutors and civilians attempt to judge these situations, they have many misconceptions. Some will believe that no weapon in the hand of a suspect means that the suspect is not dangerous. Generally they will not understand that if a suspect is able to disable an armed police officer, then the suspect can acquire the officer's firearm (Pinizzotto, Davis, Bohrer, & Cheney, 2009, p. 19). This situation is simply unacceptable. Edged weapons are especially dangerous; however, most agency policies will agree to the "21-foot rule" in which deadly force may used when the encounter with a knife-wielding suspect is within twenty-one feet.
In the majority of these situations, police officers are often reacting to the situation with which they are presented. This already places them at a disadvantage. The myth that officers are able to draw their weapons and defend themselves in the blink of an eye is difficult to overcome. Many also believe that only one or two bullets are required when deadly force is warranted and utilized. Police academies routinely train their officers to continue shooting until there is no longer a threat. The general public does not understand that it takes precisely placed rounds to quickly or instantaneously incapacitate a suspect. In the few seconds it takes for the human body to react to temporary and permanent wound cavitation, the suspect may still be capable of harming others. What one study and many police reports have shown is that in many cases, though multiple rounds were fired, very few of them hit their intended targets (Pinizzotto, Davis, Bohrer, & Cheney, 2009, p. 18). During a stand-up life and death fight, the officer will not know if he is making effective hits on the threat until that threat actually falls and is no longer advancing.
In other instances, it is necessary for officers to rely upon limited information when making a deadly force decision. Often times the totality of circumstances is weighed in a split second in which an officer decides to use deadly force. One such case occurred in 2001 when officers pursued a fleeing suspect, first by vehicle, then on foot. During the foot pursuit, the suspect turned and confronted the officer closest to him shouting, "I got a gun." As the pursuit continued, a K-9 was released and brought the suspect to the ground. As officers approached, the suspect reached for his waistband, again claiming to have a gun, at which time a pursuing officer began firing on the suspect. As other officers arrived in the following seconds, they were under the impression that a fellow officer was under fire. They drew their weapons and also began firing (Anonymous, 2009).
In subsequent state and federal civil suits filed by the family of the deceased suspect, the courts found the officers acted reasonably, given the totality of the circumstances.
"Several studies have demonstrated that the majority of officers had many more opportunities to use justifiable deadly force than actually did" (Pinizzotto, Davis, Bohrer, & Cheney, 2009, p. 19).
POLICING WITH MAN'S BEST FRIEND
The training and utilization of dogs in policing has a long and established history. As an integral part of use of force policy, K-9's allow police officers the ability to pursue and corner potentially dangerous suspects without endangering themselves. It also permits officers to subdue suspects without resorting to deadly force in life threatening situations. The mere presence of a K-9 offers officers an extra intimidation factor, often times without ever needing to take the dog off lead. The author has had varying experience with the utilization of K-9. When dealing with a barricaded suspect in a tactical environment, entry teams are authorized the use of deadly force if the situation warrants. In these situations, suspects, though armed, may be isolated or neutralized by using K-9 as an entry team member. When properly trained, dogs can move more stealthily than a team of armed officers and locate the suspect within a structure, allowing the officers to bypass areas, using the dog to locate the suspect and move in for the arrest, using surprise. This gives entry teams a decided advantage and may reduce the likelihood of deadly force when the suspect is confronted.
Patrol officers as well benefit from the use of K-9 units. During a burglary situation, a K-9 unit responded and was able to gain entry into the structure with his dog through a window, and after allowing other officers in through the door, confronted the suspect. The suspect was unresponsive to verbal commands and had his hands in his pockets. The officer was unable to determine if the suspect was armed or not, so after warning the suspect repeatedly, he released the dog. The dog subdued the suspect and officers effected the arrest without further injury.
The suspect filed a civil suit (Kim v. City of Corona) alleging excessive use of force. The court found that excessive force was not used. Though the suspect was passive, he still presented a threat because his hands were in his pockets, and he was unresponsive to verbal commands (Anonymous, Excessive Force-K-9 Officer Sics Dog on Burglary Suspect, 2002). As the situation evolved, the officer continued to use verbal commands. The posture of the suspect warranted the presentation of deadly force according to the accepted continuum, and serious injury was avoided by utilizing a K-9.
Similarly, the Tenth Circuit Court has found that using K-9 to chase down and hold fleeing suspects is not excessive force (Crime Control Digest, 2005). A retired Maryland State Police K-9 Officer indicated that during his time on the force, he and his K-9 partner deterred and de-escalated numerous situations where the use of deadly force would have been justified, by using the dog to mitigate the situation without serious injury or death (Stotlemeyer, 2010).
NEW TECHNOLOGY TAKES THE STAGE
Just as the advent of chemical irritant gave police officers another option before resorting to deadly force, so has the recent emergence of new technologies such as conducted energy devices (commonly known as Tasers), which utilize electric current to interrupt electro-muscular functions and immobilize suspects. While there have been several high profile cases where suspects have died after being Tased, it has been found that those instances were the result of underlying and unknown health conditions of the suspects. Tasers have the potential to be the most effective, less lethal tool available to police officers. With the exception of a few cases, there are no lasting effects and no need to decontaminate suspects as with chemical irritant, and the effects subside as soon as the Taser is deactivated (Leitch, 2008).
It is just as important for effective policy in the use of Tasers to be established as with any other device a police officer may utilize in the course of performing his/her duties. A recent case found that an officer did use excessive force when he deployed his Taser to subdue a subject in California. In Bryan v. McPherson, it was found that the suspect presented no immediate threat because he was known to be unarmed, though noncompliant, and was at a distance of 20 feet. Bryan v. MacPherson, 608 F.3d 614, 618 (9th Cir.2010) (Anonymous, Court Disapproves of Officer's Use of Taser on Unarmed Suspect, 2010).
By contrast, the 11th Circuit Court found that an officer who had called for back-up did not use excessive force because his right to make an arrest "carried with it the right to use some degree of physical coercion or threat" (Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (Anonymous, Officer Calls for Back Up, but Continues to Taser Suspect Before Other Officer Arrives, 2008).
CONCLUSION
Modern police departments now possess or have the ability to possess a variety of less lethal options to effect arrests in threatening situations without resorting to deadly force. It is of vital importance for each of those agencies to establish clear and concise Use of Force policies that permit the use of acceptable, proportional, and effective force. The loss of life in any law enforcement situation is regretful and tragic and does not serve to improve community relations when officers need to resort to deadly force, even when it is justified. By giving officers options and effective policies, administrations will facilitate better community relations while keeping officers safer and more effective as representatives who are depended upon to keep our communities safe.
Bibliography
Anonymous. (2010 February). Court Disapproves of Officer's Use of Taser on Unarmed Suspect. Law Enforcement Employment Bulletin , 27 (2), p. 3.
Anonymous. (2002). Excessive Force-K-9 Officer Sics Dog on Burglary Suspect. Police Department Disciplinary Bulletin , 10 (8), 5-6.
Anonymous. (2009). Misconduct: Family Sues Officers After Son is Shot While Fleeing Police. Police Department Disciplinary Bulletin, 17 (7), 7-8.
Anonymous. (2008 November). Officer Calls for Back Up, but Continues to Taser Suspect Before Other Officer Arrives. Arrest Law Bulletin , 32 (11), p. 4.
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Pinizzotto, A. J., Davis, E. F., Bohrer, M., & Cheney, R. (2009). Law Enforcement Perspective on the Use of Force: Hands-On Experiential Training for Prosecuting Attorneys. FBI Law Enforcement Bulletin, 78 (4), 16-21.
Stotlemeyer, R. (2010 13-March). Sergeant-K-9 (Ret.), Maryland State Police. (S. P. Leitch, Interviewer)
Wright, J. (2010 14-March). Lieutenant (Ret.), Baltimore City Police Department, Baltimore, MD. (S. P. Letch, Interviewer)
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