Samuel D. Faulkner is a
law enforcement training specialist at the Ohio Peace Officer Training Academy (OPOTA),
a section of the Ohio Attorney General’s Office. He is responsible for the areas
of Defensive Tactics/Subject Control, Officer Survival, force-on-force firearms
simulation training, baton, aerosol agents, and Response to
Resistance/Aggression training. He has consulted with and assisted in
approximately two hundred and twenty cases, aiding in the defense of law
enforcement and corrections officers. He can be contacted at OPOTA at:
614-466-7771, or by email at:
sfaulkner@ag.state.oh.us.
Samuel D. Faulkner, Ohio
Peace Officer Training Academy
The person who said, “A
picture is worth a thousand words,” did not give ample recognition to the
awesome power of the spoken word. “Ask not what your country can do for you,” “I
have a dream,” and so many other famous words and spoken phrases ring in our
ears still today. Words have motivated nations to war, or pulled up by their
bootstraps entire countries that appeared to be on their last legs. The
ammunitions of the street officer are 38’s, 9mm’s, and 45’s, and the officers
traditionally do a great job with these tools. The ammunitions of the courtroom
are words, and too often our officers are ill prepared and under equipped when
they find themselves in verbal engagements in these hallowed halls. The purpose
of this article is three-fold:
To illuminate the
guidelines given by the Supreme Court, and echoed nationally by courts of
appeals, in relation to claims of excessive force in the course of a “seizure”
of a free citizen by law enforcement officials;
To propose a paradigm
shift for law enforcement to be reflective of the Court’s directives; and
Offer CALEA, a
standard-setting organization, the opportunity to participate in the
development of Response to Resistance/Aggression standards, thereby empowering
agencies to shape their own destinies.
SECTION I
Tennessee v. Garner,
471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985),
is the basis for the “deadly force” training of virtually every law enforcement
agency in the United States. We now know that, “It is not constitutionally
reasonable to prevent escape of an unarmedfleeing felon
who poses no danger to others.” We further know that, “it is not
constitutionally unreasonable to prevent the escape of a fleeing felon by using
deadly force if: “The suspect poses a threat of serious physical harm to the
officers or others, the suspect threatens the officer with a weapon, or there is
probable cause to believe that he has committed a crime involving the infliction
or threatened infliction of serious physical harm.”
This is chapter and verse
for all firearms trainers, and has carried over to departmental directives and
policies. I would draw attention to the bold print words in the above paragraph,
and submit that this is a relatively narrow application. There are four
qualifiers present: escape, unarmed, fleeing, and posing
no danger.
Although this case does
give guidance for firearms training, just as important is what Tennessee
v. Garner does not say. It does not cover the myriad of other subject
control measures that are available to the law enforcement community. More
importantly, as we will see in the next paragraph, it is not even the bright
line case given by the Supreme Court relating to use of force, deadly or not.
The case that shows what
Tennessee v. Garner does not say is, Graham v. Connor,
490 US 386, (1989). “All claims that law enforcement officials have used
excessive force - deadly or not -in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen are properly analyzed
under the Fourth Amendment’s ‘objective reasonableness’ standard, rather
than under a substantive due process standard.”
The Court rejected the
notion that excessive force claims are governed by a “single generic standard.”
Instead, courts must identify the specific constitutional right allegedly
infringed by the challenged application of force, and then judge the claim by
reference to the specific constitutional standard, which governs that right. The
Fourth Amendment “reasonableness” inquiry is whether the officer’s actions are
“objectively reasonable” in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation. The
“reasonableness” of particular use of force must be judged from the perspective
of a reasonable officer at the scene, and its calculus must embody an allowance
for the fact that police officers are often forced to make split-second
decisions about that amount of force necessary in a particular situation.
The Supreme Court
acknowledged that the “objective reasonableness” standard required an equation
of qualifiers or factors to determine if a law enforcement officer’s actions in
a particular instance were reasonable or unreasonable. However, the Court noted
the extreme difficulty encountered by law enforcement in determining the
reasonableness of an officer’s use of force as it stated, “…the test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application.” Guidance from the Graham Court did
provide some specific factors to consider such as the circumstances unique to
the incident, the severity of the crime at issue, the subject’s immediate
apparent threat to the officer or others, the level of suspect’s resistance, and
the facts or circumstances known to the officer at the time of the incident in a
tense, rapidly evolving situation. The Court’s focus is squarely centered upon
the “totality of the circumstances” as a measure of whether the officer’s
actions are objectively reasonable.
Any analysis of the
Graham decision must acknowledge that this case is only about one issue:
identifying the applicable standard to judge a law enforcement officer’s use of
force. The Court identifies the standard as an “objectively reasonable”
calculation and provides criteria for analysis. The Court’s declaration does not
include any other language for the benchmark standard other than the words
“objectively reasonable.” Law enforcement agencies have been extremely creative
in lavishing words in policies to offer officers guidance relating to the use of
force. Some of the often-stated terms include: “extreme caution,” “minimum,”
“every other available alternative shall be exhausted,” “last resort,” and the
currently used CALEA term “necessary.”
The use of the word
“necessary” or its alternative “unnecessary” appears in the Graham decision six (6) times. Conversely, the word “reasonable” or its alternative
“unreasonable” appears in the same decision twenty-eight (28) times. The word
“necessary” or “unnecessary” appears four (4) times in the context of evaluating
the Eighth Amendment Constitutional standard of “cruel and unusual punishment.”
At issue in Grahamwas the Constitutional debate over which
standard to use in evaluating a law enforcement officer’s use of force. The
analysis squarely centered on the differing standards found in the Fourth
Amendment and Eighth Amendment. The court declared the use of the Eight
Amendment standard by correctional officials was not the appropriate vehicle for
law enforcement. It clearly stated the correct analysis for law enforcement
officers is the Fourth Amendment “objective reasonableness” standard.
Saucier v. Katz,
533 U.S. 199 (1999), handed down by
the Supreme Court ten years after the landmark decision in Graham,
is the leading recent proclamation by the Court. As stated previously, the Graham decision uses the words “reasonable” or “unreasonable”
twenty-eight (28) times. In Saucier the word “reasonable” or
“unreasonable” appears twenty-nine (29) times. Comparatively, the word
“necessary’ or its alternative “unnecessary” appears only four (4) times (two
times less than in Graham but only twice in the context of
evaluative analysis. Further, those two times the word “necessary” or
“unnecessary” appear, are quoting the same language as used in Graham.
Clearly, if the Court wished to declare the justification analysis of a law
enforcement officers use of force were to include the words “necessary” or
“unnecessary” it would have made that language part of the “objective
reasonableness” analysis.
The use of the words
“necessary” or “unnecessary” in a force policy is flawed and without
Constitutional requirement or support. These words are a subset of the
“objectively reasonable” analysis and have no more weight than any other factors
from the “totality of the circumstances” view. To focus in on the problem the
words “necessary” or “unnecessary” create, consider this question: Is it
“necessary” to shoot a subject with a toy gun, or is it “necessary” to shoot a
subject brandishing an unloaded firearm? These types of situations have plagued
law enforcement and will do so again. The use, in these examples, of the word
“necessary” puts an impossible burden on the officer; implying that the end
result could be known which is a 20/20 hindsight perspective after the
incident.
The Supreme Court was
cognizant of this problem in their Graham analysis when they
stated that the “reasonableness of particular use of force must be judged
from the perspective of a reasonable officer on the scene, forced to make
split-second judgments in circumstances that are tense, uncertain and rapidly
evolving.” The “objective reasonableness” analysis maintains the focus on the
facts and circumstances definitely known to the officer at the time the force
decision is made. The Court stated, “The ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” In the above cited scenarios,
it would be impossible for the officer at the time of the incident to know that
the subject had a toy gun, or that the firearm the subject was brandishing was
unloaded. Would it be “reasonable” to require that an officer do the
impossible, to be able to perceive circumstances that were beyond the realm of
human capability?
The job of the law
enforcement officer is difficult enough without imposing a force standard that
is beyond the limits of human capacity. When we adopt the “objective
reasonableness” standard dictated by the Court, we allow our officers to be
judged by the real world environment in which they function. The word
“reasonableness” allows us to consider the factors that could be perceived or
known to the officer at the time of the incident. It also allows for principles
of human reaction time, perception under stress, sensory distortions under
stress, involuntary muscle contractions, startle responses, etc.
We can ultimately only
know if the responses of the law enforcement officer were “necessary” when we
have all of the facts involved in any given circumstance. The officer on
the scene virtually never has all of the facts and knowledge to determine if
his/her response is actually “necessary.” This is why, unfortunate as it may
be, it is sometimes “reasonable” to shoot a subject with a toy gun, or a subject
threatening the officer or others with an unloaded firearm. Hopefully, all can
now see that it is legally sound, in the best interest of law enforcement, and
“necessary” for CALEA to modify 1.3, Use of Force, 1.3.1 to read, “A written
directive states personnel will use reasonable force to accomplish lawful
objectives.”
SECTION II
Who gives law enforcement
the right to use force? The Constitution of the United States. There was a time
in our country’s history when government officials could come into our homes for
any reason, take us to jail and leave us there for any amount of time without
stating the charges or having the ability to be represented or heard. They could
take our homes and our lands, throw our families out onto the streets, and there
was nothing that we could do about it. This was when our founding fathers had
enough and decided that we would not live that way. The result was the War of
Independence, the freeing of America, and the penning of the Constitution of the
United States. “The right of the people to be secure in their persons, houses,
papers, and effects against ‘unreasonable’ searches and seizures, shall
not be violated…”
What we always must
remember is that we are in essence Constitutional Officers. The Constitution has
given law enforcement the right to use force. Our founding fathers knew that
some people would refuse to obey the law, so someone would have to be appointed
to enforce the laws and maintain the peace. I submit to you that if you remove
from law enforcement the ability to use force, we then become a bunch of clerks.
The use of force is not inherently wrong or incorrect. We only have a violation
if the use of force applied is “unreasonable.”
When people hear the words
“Use of Force,” the vast majority of the public, including law enforcement,
considers that a negative. This should raise the question, why do we then use
that title? As we have been told in Tennessee v. Garner, there
must be certain factors present before a law officer may legally use his/her
firearm. The case on which all force is based, Graham v. Connor,
instructs that certain factors, including apparent threat, and level of the
subject’s resistance must be present to make a force usage appropriate. This
being the case, I submit that a much more appropriate, and representative term
for law enforcement is “Response to Resistance/Aggression.” The word
response denotes that the subject must be engaging in an action of either
resisting, or aggressing toward the officer or others. These are exactly the
factors the courts want to hear in judging the efficacy of an officer’s conduct.
So many times officers are
criticized because they do not do an adequate job on report writing. If we train
them in “use of force,” that is exactly what we can expect to get on reports.
The officer states: “I did this, then I did that, then I did the other.” Any
officerresponse at the right time is right, and any officer
response at the wrong time is wrong. The only way to judge an officer’s
response is if you know the actions by the subject, or the level of resistance
or aggression that the officer was encountering. The best way of getting this
point across to the officer is by labeling the topic correctly. It is not
a Use of Force Policy, but more correctly a Response to Resistance/Aggression
Policy. It is not a Use of Force Report, but much more accurately stated
an Action – Response Report. This focuses the blame exactly where it should be,
on the subject performing the resistive or aggressive action. Any hint of change
brings these words to lips of some: “Why change, it has always been this certain
way?” If the way now is flawed and causing problems, it is in our best interest
to change it. “Response to Resistance/Aggression Policies,” and “Action –
Response Reports” have been tried and tested by departments and in courts with
extremely beneficial results.
My next recommendation to
CALEA is to consider further changing the current standard language 1.3 Use
of Force to:
1.3 Response to Resistance/Aggression
1.3.1 A written directive states that personnel will
use reasonable force to accomplish lawful objectives.
SECTION III
I believe that it is now
clearly understood that law enforcement officers must act as other reasonable
officers would have acted in similar situations, and that the officer’s actions
must be “objectively reasonable.” The question to answer is: how do reasonable
officers act? If you search literature you will find no definitive answer, and
nothing that answers the directives of the courts in action – response
situations.
In an attempt to fill the
void, fifteen years ago I began a series of national research projects to shed
light on this problem, and, hopefully, provide law enforcement with a code of
conduct, or a standard in this area. Our profession is the first group of its
kind sent forth to our nation’s streets with enforcement duties and no
well-defined rules of engagement. It is possible for an officer to follow
his/her training, departmental policy, and the wishes of his supervisory staff,
be sued, and find that the jury or judge deems his/her responses inappropriate.
This can, and has prompted officers to either say, “since they are going to
screw me anyway, I’ll make it worth my while” or “I just won’t ever get
involved.” Either of these approaches is inappropriate and unacceptable.
Originally, my Action –
Response research was focused within the state of Ohio, and I then expanded to
include West Virginia, Indiana, Kentucky, and Tennessee. It was then picked up
by POLICE magazine and every state except New Hampshire responded. (Since
then, I visited the state and surveyed the CALEA accredited agencies). Another
survey project was conducted with the Law Enforcement Television Network. In a
follow-up project after the Lucasville prison takeover, the survey was conducted
through AFSCME Corrections United covering 34 states. About six years ago we
conducted another study in conjunction with the United States Justice
Department, National Institute of Justice. That research has been peer reviewed
by the American Criminology Society and the Academy of Criminal Justice
Sciences. Following that, we conducted what was the very first project centering
on what responses would be appropriate when dealing with juvenile subjects.
The current database
consists of approximately twenty thousand survey responses. I have consulted in
cases in the defense of law enforcement approximately 220 times with outstanding
results. I can detail exactly what response virtually all officers believe to be
appropriate, which they believe not to be appropriate, where there is a variance
of opinion concerning control techniques, and the amount of variance. It is a
powerful demonstration of what officers believe to be reasonable responses to
resistance, aggression and assault.
A possible flaw in the
program could lie with potential differences between “reasonable officer” and
“objective reasonableness.” Law enforcement gets together as a profession and
decides we can do this and we can do that. Then we get in front of a jury only
to discover that our actions have totally offended them. To avoid this, I have
surveyed well over four thousand civilians to determine their belief systems.
The survey information, and the Action – Response Continuum answers the factors
detailed in the Graham v. Connor decision. It reveals the
relationship between reasonable officer’s beliefs and howthat relates to the beliefs of civilians
(objective reasonableness). It further reveals the severity of the crime at
issue, the apparent threat, and whether the subject was attempting to resist or
flee; the other key factors stated in the Graham decision.
This information has been
shared with the National Association of Attorney Generals (NAAG), and at an
attendee workshop at the CALEA Conference in Cleveland, Ohio during the summer
of 2002. The Ohio Attorney General’s Office published a book detailing the
research. Ohio Attorney General Jim Petro has made it available to everyone
through his web site. All interested parties can obtain the research by taking
the following computer shortcut:
www.ag.state.oh.us/online_publications/pota/useofforce.pdf. (to
clarify, between “online” and “publications” is an underscore). Anyone who
wishes the most up-to-date copy of the Action – Response Continuum, of a model
Response to Resistance/Aggression Policy can make a request by email to:
sfaulkner@ag.state.oh.us.
I will return email with a file attachment.
I have already surveyed a
number of CALEA accredited agencies, and would like CALEA to make the survey
process available to the officers of all accredited agencies in the United
States. I will input the surveys for free and give the information to CALEA to
disseminate for all to use. I can think of nothing more appropriate than CALEA,
which is the symbol of professional excellence, assisting the law enforcement
community in championing an Action – Response standard.
[Thanks
to Sergeant R. Kelly Hamilton, and Lieutenant Robert Meader, Columbus (OH)
Police Department and attorneys at law with Hamilton and Hawkins. My deepest
appreciation extended to Joseph A. Palmer, Attorney at Law and retired Judge,
for his guiding hand.]
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