Use of Force Webinar Notes

This webinar features Dr. Jeffrey C. Fox, PhD from Fox Public Safety: Training, Educating and Consulting LLC. If you have questions or would like a copy of the slides please contact him at http://www.fox-publicsafety.com, on Linked In or via email at jcfpdf@msn.com

 

This webinar will cover the following topics:

  • Officer Survival and Use of Force
  • Perception Vs. Reality
  • Legal and Policy Issues
  • Tactical Issues
  • Training Issues
  • Handling the Use of Force from an Administrative and Holistic Point Of View

 

Poll Question

1.10 Have you ever been involved in a use of force as an officer? 47% said Yes and 53% of today’s audience said No.

 

2.30 Dr. Fox explains he has been involved in a lot of use of forces in his career, investigated it and trained it in as well. Over the last few years he has felt anxiety watching some of the footage play out on television.

 

Officer Survival and Use of Force

 

3.20 This should always be the first part of any discussion about Use of Force, both the survival of the officer and the protection of others. If there isn’t a conversation about Officer Survival in the Use of Force conversation then there is a problem. In a perfect world we would never have to use force but that’s not the reality we live in unfortunately. Officers will have to use force from time to time, so ‘defensive tactics’ also needs to be a part of the Officer Survival conversation.

 

5.03 Use of force is extremely rare when one considers the millions of contacts police and citizens have every year. A lot of people unfortunately don’t realize that because they get their information from television and mass media, which isn’t factual. There are rare cases where use of force was excessive, and that is wrong, and we want to minimize any improper use of force. However, when that does happen Dr. Fox feels confident that the majority of the officers know that it’s unjustified and are not celebrating when those cases happen.

 

6.30 The use of force is and should only be the result of an offender who decides, for whatever reason, to resist arrest, assault an officer, or assault another person. Nothing the police officer does causes that offender’s behavior. It is their decision, they have a choice in the use of force occurring or not. The ideal is that society respected the law and the norm but that isn’t always reality.

 

7.10 Ask yourself if you are describing it right. Use of force is any force involving physical contact with someone beyond merely grasping or taking hold of the person to restrain him or her. The use of force is also the deployment of a weapon or instrument, which would make some sort of contact with the offender. It does not include the mere presence of an officer, verbal commands or instructions, or even taking hold of or grasping somebody during normal arrest and handcuffing procedures. In these situations there will be some level of physical contact. If you’re defining the use of force as any physical contact at all, Dr. Fox suggests you rethink that.

 

8.42 Use of force would include: striking an offender in any way with your body, a baton or other instrument; physically controlling the offender in such a manner that would result in any injury or complaint of injury (if they say they’re injured, believe them); the use of other weapons or devices such as OC spray, Tasers, bean bag deployments, foam etc.; being bitten by a canine; discharging a firearm or purposely using one’s vehicle as a weapon.

 

11.30 Really take a hard look at what you’re defining as a use of force and what you’re not defining as a use of force, because it does make a difference when it comes to reporting.

 

11.45 The police are more professional and better trained than they’ve ever been. Across the country this is more true than any time in the history fo policing. This has always been a sensitive issue, and it’s a real and important issue. We’ve always had people who resisted arrest throughout society but there are two things that have changed this recently: technology (e.g. cell phone cameras) and media coverage. The problem with that is the person recording the incident usually doesn’t record from the start of the incident and misses the lead up to the use of force. Sometimes this is done deliberately so as not to show the whole story.

 

12.55 People say that a video doesn’t lie, but it doesn’t necessarily tell the whole truth either. It needs interpretation and looking at the whole story, which the Supreme Court acknowledges. The media also can often be biased, rushed and only use sound bites, which again doesn’t tell the whole story. If we don’t tell the media the information, they’re going to get their story somewhere and that’s why it’s important that we cooperate with them.

 

15.20 As for the video recording, since we know that other people are going to be recording then we need to be recording too using things like body cam and in-car cameras. Cameras serve a great purpose and we need to be using them.

 

16.00 There is also the issue of politicians and community leaders exaggerating stories and jumping to improper conclusions by either not taking time to learn the fact or just ignoring the facts altogether. Unfortunately that’s just how it is, so we have to deal with it.

 

16.15 Don’t worry if somebody is video taping you. Don’t go and try to take their camera away, leave them alone and let them video tape it all they want. On a rare occasion an improper or wrongful shooting will take place and we need to handle it correctly and fairly. We will have to look at it administratively, civilly, and criminally.

 

17.30 It’s our job to tell the truth, the total truth, and let the chips fall where they may. The vast majority of use of force cases are perfectly legitimate.

 

18.00 In the last several years we have seen officers shoot unarmed suspects. The media and some politicians will quickly conclude it was improper force by the mere fact that the person was not armed with a gun. This is a false narrative to create, harmful to police psyche, and unfair. Generally speaking, one cannot shoot an unarmed person. However, if you are truly and reasonably in fear of your life based on the totality of the circumstances then deadly force might be appropriate. It’s difficult to say ‘never and always’.

 

Perception vs. Reality

 

19.03  The truth is we do not have a lot of current or new data about use of force, either nationally or at the state level. It’s a hot button issue that we need to look at, and we need to be honest about it. Anecdotally speaking, if it was happening every single day it would be the headline every day. And when it is the headline, it becomes a big deal, as it should.

 

20.03 Facts and data that we do have shows that the use of force is not that frequent, and the data shows most of it is proper use of force such as grabbing and holding. These are not improper uses of force, these are use of force data period. The average number is between 0.2% up to 1% of use of force being either used or threatened. Put another way, police did not use force at least 99% of the time.

 

22.47 Seeing these numbers does not equate to what we see on the news. Overall the numbers show that the police are doing a lot of things right. We can still always do more training and improve more, of course. We want to get the excessive use of force numbers down to zero, however compare these numbers to other professions like doctors and you will find they also have a small number of cases where things go wrong.

 

Legal Issues

 

24.45 The Tennessee v. Garner case in 1985 is probably the pre-eminent case and if you have an interest in this you probably already know. The court said you cannot shoot an unarmed person or a person running away from you. Now that’s under these, general circumstances. That’s not a ‘never, ever’ case. However, Justice O’Connor highlighted the fact that police officers must often make swift, spur-of-the-moment decisions while on patrol, and argued that the majority did no properly consider this aspect of the case.

 

26.06 The Graham v. Connor case in 1989 was also very instructive in explaining that the proper application requires looking at each case on the totality of the circumstances and the narrative of each case, unlike the way the media looks at things. The Graham Court cautioned that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight.” This is important to remember.

 

28.30 Various State and Federal Liability Law shows that we are not giving officers a free pass but that we do need to have reasonableness involved. There is liability involved and officers have to know this.

 

29.55  Another legal issue is supervisory negligence. We have to do our duties when training others and not fail to train, direct, discipline, investigate, protect and treat or neglect to supervise, retain, entrust, assign and classify.

 

30.19 Defenses to Liability include contributory negligence, comparative negligence, assumption of risk, absolute immunity, qualified immunity probable cause and good faith.

 

30.45 Criminal charges against police can occur for instances of misconduct. It can be for illegal arrests, illegal searches or even breaking and entering. However it is not often that police officers will be charged with crimes.

 

31.17 Case law and Chronology of Training and Selected Municipal Liability: Meistinsky v. City of New York (1956); Monroe v. Pape (1961); Monell v.Department of Social Services (1978); Popow v. City of Margate (1979); Will v. Michigan Department of State Police (1989); City of Canton v. Harris (1989); Bordanaro v. McLeod (1989); Hafer v. Melo (1991); Zuchel v. City and County of Denver (1993). What we need is more and better training. Lifelike, realistic training costs money, takes time and is a little dangerous but it’s needed.

 

33.25 National Consensus Policy on the Use of Force, 2017, put together by the IECP and about 5-6 other professional law enforcement agencies. Compare this to your current policies because this is a very good policy. The URL is included in the slides and Dr. Fox suggests you go there and read the whole document.

 

Tactical Issues

 

33.55 Winning the battle without the use of force is important. Bad guys and bad girls will sum up and size up the police officers and test them. Half the battle is won before you open your mouth and the other half when you open your mouth. What the officer says and does makes a difference. Dr. Fox’s policy was to be as polite as possible until that wasn’t possible, and then simply be neutral and serious. Do everything you can to de-escalate an incident. You have a job to do, and that’s to enforce the law, not to be liked.

 

36.40 If you can, wait for help. Sometimes that’s not possible, and a lot of times police officers only have a matter of seconds to make a decision. The Courts are better at understanding that in most cases than the media, the public and the politicians.

 

37.09 Climbing the ladder used to be taught in relation to the use of force. You do not necessarily match the force with equal force. You should only use that force necessary to stop the threat. The circle approach is what we want to use now, not the ladder approach. We want to reach out and use the force necessary to stop the threat you faced. Be aware of sympathetic shooters and officers should be trained not to do this. Remember to only fire your weapon when the circumstance dictates such use of force and you are in fear for your life or the life of another person, and keep your finger off the trigger unless you are ready to fire.

 

39.51 Don’t put yourself in a position where you have to shoot. In every possible circumstance, you want to try to deescalate the situation when possible. We see images in the movies all the time, like officers standing in front of moving vehicles to stop them. However, this is not a good idea and we have train officers about this now.

 

40.55 The Use-Of-Force Continuum generally has many levels, and officers are instructed to respond with a level of force appropriate to the situation at had, acknowledging that the officer may move from one part of the continuum to another in a matter of seconds. It moves from officer presence, to verbalization, to soft techniques, to hard techniques, to less-lethal methods and then to blunt impact, chemical, conducted energy devices and finally lethal force. The pit maneuver is also included in the use of force continuum.

 

42.31 A graphic image that explains the Circle Approach. The officer continuously assesses the situation and selects the most reasonable option relative to those circumstances as perceived at that point in time.

 

44.00 A graphic image that explains the Ladder Approach. Dr. Fox prefers the Circle Approach.

 

44.35 Another example: the Wheel Model.

 

Training Issues

 

44.46 Things to think about with training include the cognitive factors (the mind and error of the mind), psychomotor factors (muscle memory), and affective or attitudinal factors (values, ethics, morals and possible errors of the heart). For example, did an officer purposefully do something wrong in which case it might be criminal. If they did something administratively wrong, it might be more of a civil case.

 

45.30 Performance Based Training is a method of training individuals to master tasks required for successful job performance. Contextual-based training takes PBT one step further. That is, it involves the added element of coaching and training in context. By telling, showing and then having the student do or perform the task, then coaching or providing feedback, the retention level can rise to 90 percent. Remember, training and reaction is all about proper muscle memory. Under stress, people will react the way they have been trained. Training also needs to be dynamic and doesn’t always have to be live fire. Whatever it is you are learning, if it is a psychomotor skill, avoid artifacts at all costs. When an officer is trained right, they should be able to say ‘been there, done that successfully.’ If not, then that officer may have to improvise, or in some cases may avoid acting when action is required.

 

47.30 Expanding officers’ comfort zones is very important. Comfort zones show visual impact on a person’s physiology. Contextual-based training involves or should involve critical thinking. This brings together all three domains of learning: cognitive, psychomotor and affective or attitudinal. Critical thinking but become intuitive so that the officers’ reaction time will not be adversely affected. This process must be fine-tuned and instinctive.

 

How to Handle The Use of Force

 

48.00 When the use of force has occurred, we have to look at resiliency and bounce back, as well as the health of the community, agency and individual officers. Critical Incident Stress Management is needed whether the officer is right or wrong, even when they have to be disciplined. Debriefing and learning from mistakes is important, and being aware that 7/10 officers will leave the job within a year of the shooting. There must be a Shooting Investigation Team in place, whether external or internal, and you need to support your people.

 

50.20 There also needs to be political will to survive the storm. Your officers shouldn’t do it alone. Move quickly, but wrap it up.

 

50.30 A table to explain How to Handle the Use of Force. This includes a list of things to do pre-incident, at the point of incident and post-incident. Many of the items on the post-incident list are also pre-incident, so if you haven’t done those steps do them now. Don’t wait for there to be an incident.

 

Poll Question

51.30 Based on recent media attention coupled with the negative outpouring toward the police in general regarding the issue of use of force, if you are or were an officer would such behavior or feelings cause you to hesitate if you had to use force? 64% response rate, the answer was 50% Yes and 50% No.

 

Question time

53.30 The court case Graham v. Connor stated that force cannot be measured by mechanical application. Does the circular use of force or any other force continuum model seem to explain this mechanical application?

54.32 At the beginning of the presentation you mentioned that merely grasping or holding onto someone to restrain them is not a use of force. Can you quote or identify any court case that supports that notion?

56.10 Would you advocate that the use of force be defined at the state level to permit consistent tracking of use of force incidents across a jurisdiction?

 

 

 

Additional Resources
4 years ago
Use of Force and Officer Safety
No one becomes an officer wanting to use excessive force to detain or apprehend people. But in the […]
4 years ago
Use of Force and Officer Safety: An interview with Dr. Jeff Fox, PhD
No one becomes an officer wanting to use excessive force to detain or apprehend people. But in th […]
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