Webinar presenter Dr. John Peters answered a number of your questions after his presentation, Use of Force Constitutional Standards vs Force Continuum. Here are just a few of his responses.
Audience Question: One of your polling questions touched on agency policy in terms of active and passive resistance, etc. And of course, some of the audience said that they didn’t have those definitions defined. What do folks do? How should folks approach their management or leadership to encourage the agency to consider defining those terms in their policies or manuals?
Dr. John Peters: There’s a couple of ways you can do it. I would recommend going to agencies and have their use-of-force policies online such as the Las Vegas Metropolitan Police Department. Download those policies and take those definitions to your command or the appropriate people and say, “Look, these are things that we should probably incorporate not only into our training program but also into our policy because the policies are probably going to be argued or certainly going to be requested during litigation.” You can also, sometimes you have the right message but you might be the wrong messengers so you might contact city or county council and suggest that they make the overtures to the command staff or in other cases, have your insurance pool contact and say, “look we reviewed your policy and we didn’t find these terms in there and we think that’s very important to have those in there. There’s a number of pathways to do that, but I would go online and find agencies that have those definitions and just remember to take out that agency’s name before you copy it and putting your own agency.
Audience Question: As you know, we do have a number of law enforcement officers on the call today. We also do have a number of probation and parole folks as part of our community. Do you know whether or not probation officers have adopted use-of-force standards and is everything that you basically described today, does that apply to them equally as well?
Dr. John Peters: The answer is that depends on the status of the probation and parole officer, there are some states where the probation officer or the parole officer is not a sworn peace officer. If you are not a sworn, then the fourth amendment won’t apply to you because you have the same basically force options that a civilian does. If you are not a sworn peace officer, you have the same protection as a citizen. That’s very important for people to understand. You may be acting under color of law because you’re employed by the government and maybe there’s a part of that that may apply but I would go to your city or county council and I would ask him or her to give you very clear guidelines on what type of force you can use because if you are not sworn, you’re basically limited to your self-defense statutes in your particular state.
Audience Question: You touched on a number of report writing items. What advice or tips do you have for officers to improve this quality of their report and light up their potential role later at trial as you said earlier beginning with the end in mind? What advice that you have for their report-writing skills?
Dr. John Peters: I would take the Graham standards. I would take the fourteenth and eight amendments’ questions and points that we made and I would just make a little list that the officers can carry with them and I’d have them answer those questions, I would make sure those answers are in my police reports or if you’re an internal affairs investigator, make sure you ask those questions to the officers, if you get it in the report and many times it’s only because officers are writing a report and they’re trying to remember everything and they just don’t have these questions in front of them or points to really articulate but if you have that list, put it up in your locker room. Put it up in your desk. Put it on your patrol car. Put it somewhere where you have basic access to it. Just answer and just be detailed enough that down the road people can’t come back and say, “Okay, you said you used a taser. How? How many times?” Those types of things.
Audience Question: What role does officer experience or tenure can have, and how your use of force ended up playing out?
Dr. John Peters: As you can imagine, there’s not a black and white answer to that. Officer experience tends to play a big role in the outcomes of cases where an officer may have a lot of narcotic experience or has a lot of experience chasing fugitives or working on high-crime areas. The officer may say, “Look, I know from experience, this was gonna happen”, and that sure enough, it did. That doesn’t give everybody an automatic pass to use more force than necessary. On the other hand, sometimes inexperienced officers don’t see it coming and they get caught off-guard and then they have to react with whatever the suspect did. So experience does play a factor. Height and weight of the officer versus the subject also play a factor in the analysis. But again, all of these go to the totality of the circumstances and again this is something that, in some cases, may want to be put in a report, they want to be put into an internal affairs investigation, and may want to be brought out of the trial.
Audience Question: A number of our audience members are required to work overtime on a regular basis. Does jail overcrowding or staff overload or burnout ever apply to these defenses in terms of deliberate indifference?
Dr. John Peters: Sometimes the officer might be able to say look, “I didn’t have time to do X, Y, and Z. Plaintiff is certainly it’s going to argue that overcrowding, understaffing, overworking are variables that are going to help them with deliberative differences argument. Most of that argument will be transitioned to the command staff. It will be the transitioned to the people who really operate the jail and in some cases, I’ve seen it even go to the county commissioners because they didn’t fund enough money for the jail. Either to provide extra officers or provide what was necessary to make sure the jail functions appropriately. In some cases, I could say that the officer could say, “I just ran ragged. I couldn’t do this.” But stop and think about that too and always clear it with the council because the council will be the one that’s asked put up your defense. If you run that ragged and yet you still knew that there was a medical issue, what you’re really doing is submitting, “Hey I knew it but I didn’t have time to deal with it.” So, that can cut both ways.
Audience Question: You talked about officers using racial epithet and cautioning them strongly against using it at such language. We also live in a social media world. What about these private Facebook groups or other social media groups that are theoretically private. What’s your advice for law enforcement and other justice professionals in terms of expressing their opinions or feelings on social media even if it’s, “private.”
Dr. John Peters: Don’t. There’s nothing private. I’ve seen where officers have taken pictures with their cellphone cameras after people who have been “tuned up” in jail. That picture went on social media with a caption, “Kicked his butt, didn’t we?” Nothing is private. Attorneys will get a subpoena and they will get it. The general rule is don’t. Don’t say anything. Don’t post anything. Don’t write anything that can come back to bite you. That’s the best advice I can give you.
Audience Question: What approaches do you recommend regarding re-training our officers to describe an incident especially use of force and such in sufficient detail so that they can be used in interviews and testimonies?
Dr. John Peters: I think one of the best things you can do is take an existing report and read it in your training program. And say okay “Let’s stop here?” The officer said, “I took Mr. Smith to the ground. Can anybody tell me how the officer did that?”. And ask through those questions and break it down and say look, if you don’t know the answer, the jury doesn’t know the answer and the court doesn’t know the answer. You got to fill in these gaps. Just use current existing reports that may not be sufficient in your training and point out the weaknesses and show them how to correct it. I think that’s a really good learning mechanism for people to see, “I’ve said this. I can see now where that didn’t make much sense cause I didn’t fill it in and over here, here how’s it’s answered it. This will correct that.
Audience Question: Is the application of these standards different between a criminal case versus or determining a civil liability?
Dr. John Peters: In a criminal case there is no civil liability cause it’s a criminal statute and what would be argued there is that you broke his statute and the elements of whatever that crime is and they would certainly make an argument and that criminal case you used excessive force as result of abusing that force you are criminally culpable for whatever that is. The standard is higher in a criminal case than a civil case. When we hear a civil case, if it’s a Title 42-1983 action, remember it’s just a preponderance of the evidence and that would be the civil side. But there is a title 18-241 criminal statute that can be brought at the federal level against officers and we see that at times by the justice department but again it would have to look at the criminal side, what were the elements, what was the statute, what are the elements that they have to prove and one of those would be the force used was totally excessive given the circumstances facing the officer. So again, we have two separate issues here, one is criminal and the other is civil. But as a general rule, if your force is reasonable given the totality of the circumstances you shouldn’t have any problem.
Audience Question: Regarding Graham, Narcisco asks, that the second and third factors are linked with the conjunction “and”. Would that change the application of Graham factors?
Dr. John Peters: The Graham factors, you can rearrange them. Graham factors don’t have to be taken the severity of the crime first, the fact that the officer’s threat would be the most important thing to look at. The real important thing is to answer all of them and there are Supreme Court cases on the progeny of Graham that says look these aren’t ranked in a particular order or you can move them around depending on circumstances facing the officer and how you want to argue those. As long as you get those answers that maybe the severity of the crime wasn’t so bad but the threat to the officer is imminent and really deadly and that becomes your focal point that the severity of the crime is less of a focal point.
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