How to properly apply 'reasonableness' in use-of-force investigations
The facts — the officers’ interpretation of the facts at the scene — are what should be used as the guiding principles and points when reviewing an application of force
In Graham v. Connor, the United States Supreme Court set the objectively reasonable standard —stating that officers’ actions be considered from the perspective of what any other ‘reasonable’ officer would have done under the totality of the circumstances, without 20/20 hindsight. The court also provided guidance on how to define reasonableness, taking into account:
• The severity of the crime
• Whether the suspect poses an immediate threat to the safety of defendants or others
• Whether the suspect is actively resisting arrest or attempting to evade arrest by flight
What does this reasonableness term really mean for officers working the street? How do your police officers define ‘objectively reasonable?’ How do supervisors make a determination as to whether or not force was objectively reasonable under the totality of the circumstances?
With a wide variation in police presence across the United States — from agencies as large as NYPD to those as small as one-officer outfits in the outback — what is reasonable? Certainly, officers who work where backup is mere seconds away will have different operational parameters — and understanding of reasonableness — than officers working alone, where backup is hours away.
When looking at what is reasonable, reviewers should stand in the shoes of the officers who used and applied the force. The officers who were at the scene need to determine what is reasonable, regardless of alternatives present at the time.
Why? For starters, experience on the job informs our understanding of reasonableness. Experience — along with ability, knowledge, an age, and other factors — changes during the course of an officer’s career. Consequently, reasonableness can (and does) change, too.
For example, I’m a middle-aged, semi-overweight male. I might havedifferent reasonable force options afforded to me based on what I cannot do as opposed to what a 20-something rookie officer who is in stellar shape can do.
This is taken into account under the totality of the circumstances as is explained in the Graham v. Connor decision.
But physical ability is only one part of the equation — one part of the totality of circumstances. Other parts include knowledge of techniques, suspect(s), climate, and other environmental factors.
The actions of the subject especially — and the officer’s knowledge of the subject prior to and at the time force is applied — are significant components of determining reasonableness.
Conducting UOF Investigations
IA investigators looking at a use-of-force incident do so in a sterile environment — they are not directly exposed to all the factors and dynamics in the situation.
Supervisors reviewing a use-of-force incident do so through a variety of lenses (sometimes incorrect, and even inappropriate).
Supervisors and investigators are often looking at force — and subject contact — for reasons such as potential policy violations, training needs, reasonableness of force, civil litigation, criminal charges, or to support a planned disciplinary action.
Lost, then, can be the standards set forth in Graham v. Connor.
An officer might violate departmental policy in an application of force, but just because they violated policy does not mean the application of force was unreasonable, contravening the Fourth Amendment and Graham v. Connor.
Of course, if force is deemed to be unreasonable under the objectively reasonable standard, then discipline, re-training, or other remediation is appropriate. But investigators and decision-makers need to understand that the application of force is different than policy violations or training issues. Coming to the conclusion there were policy violations in the application of force does not mean that the force used was unreasonable.
How Officers Can Help Supervisors Properly Examine UOF Incidents
I suggest that police supervisors and investigators review the application of force against specific statutes, case law, and within the understanding of the totality of circumstances known to the officer involved at the time of the incident.
In order for this to happen, the agency (and every officer in it) must adopt a new paradigm in use-of-force reporting.
The “less is more” model needs to go out the window. More descriptive incident reports create more context for the reviewer. The inclusion of minute detail allows for a clearer picture of what went on within the officer’s mind — of why they decided to use one specific force option, as opposed to another.
Defining reasonableness is relatively easy. The hard part is applying the reasonableness standard in your written report as an investigator to determine if the level of force was appropriate. The facts — the officers’ interpretation of the facts at the scene — are what should be used as the guiding principles and points when reviewing an application of force.
Noted police trainer Kevin Dillon has said that “force can be lawful but awful” — that an officer may not have done anything wrong in their application of force and yet still someone gets hurt, or the use of force “looks bad.”
We should all keep Dillon’s sage remarks in mind when considering any review of an officer’s use of force.