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September 09, 2010
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Minimal force restrictions set us up for failure

The Supreme Court requires an officer to use reasonable force, not minimal force

By Commander Jeffry L. Johnson
Long Beach (Calif.) Police Department
Special Contributor to PoliceOne

I’m always amazed that, considering all the precious training time we spend with our officers on “perishable skills,” why we spend so little time and effort writing perishable skills policies. In this instance I’m specifically referring to poorly crafted force policies.

I’ve reviewed a number of force policies in my capacity as a trainer, consultant and expert witness. One of the most common mistakes I see are policies that restrict officers to using only “minimal force” or the “minimum amount of force necessary” to control a subject. Agencies that perpetuate such policy restrictions not only misstate the law, they set themselves up for unnecessary civil liability, and worse, set their officers up for failure.

Quick review: in the seminal case on police force, Graham v. Connor, 490 U.S. 386, decided by the U.S. Supreme Court in 1989, the Court ruled that an officer is only required to use “reasonable force” when confronting a suspect. That analysis must be made keeping in mind that “…officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.…”

The Supreme Court requires an officer to use reasonable force, not minimal force.

The law does not require officers to select the minimum force necessary, only a reasonable option...Choosing the least intrusive alternative is not legally required because it is an impossible standard to apply to hold law enforcement. The U.S. Supreme Court and every federal circuit in this country recognize this. It is an obvious point that use-of-force trainers and policy makers should heed. 1

In any force scenario there is usually more than one reasonable force option. Sometimes there may be four or five reasonable options. However, there is only one option if the officer is restricted to the “minimum amount of force necessary.”

Here’s the real problem with such a requirement. An officer required to use minimal force — already reeling to make a split-second decision on which force option will even reasonably work — now must not only assess the dozen or more options he or she has, they must pick the least injurious of the lot (a dicey calculation at best). And what if that option doesn’t work? The officer must then go through the entire laborious analysis again to determine which is the second least injurious of the eleven remaining options. It is simply an impossible burden to place upon even our brightest, most capable officers. We only set them up for failure, and set ourselves up for liability.

We can never really make the force situation an easy one for an officer. However, if we make clear to them they are authorized to use any reasonable force option when required, they at least have a fighting chance. Now the officer can cut down his analysis time and react more quickly to control the situation. We must understand that often a swift, reasonable response can nip a situation in the bud that may otherwise cascade into a drawn out, violent encounter with a greater chance of injury to both suspect and officer. This can become a dire problem if the officer is required to use the minimum force option (translation: the option least likely to work).

Let me give you a more concrete example. A couple of months ago I got a call from a Seattle Times reporter asking me to comment on a videotaped incident where Seattle PD officer punched a 17-year old girl in the face (you’ve probably seen it on YouTube). The officer was working traffic near a high school at a dangerous intersection where the jaywalking problem was becoming a safety issue. The officer, doing his job, attempted to stop a 19-year old who had jaywalked. She was unequivocal in her refusal to be detained, swearing at the officer and pulling away. As the officer attempted to physically detain her, her 17-year old friend jumped in the fray and began grabbing and pushing the cop. With his hands full trying to control two resisting women (both of whom had criminal records) and surrounded by a hostile crowd within a few feet of him, he reacted quickly by punching the aggressor in the face with his fist. It did the trick. The 17-year old retreated and he was then able to take the 19-year old into custody.

Reviewing this incident, it is clear there were other force options available to this officer that could be termed the “minimal amount” of force. We can start with applying a control hold or take down on the aggressor. But such measures usually take time to employ. He had already been attempting for a couple of minutes to apply a control hold to the initial subject. And of course he would have had to let go of the female he was attempting to detain to focus on the new threat, then as she either fled or became more aggressive and/or assaultive (which she in fact did after he punched her companion), the officer would have to deal with a new problem and need for substantially greater force escalation.

Maybe he could have employed an impact weapon (arguably less force than a punch to the face? We could debate that for weeks; the officer had about 10 seconds), or a chemical agent, or even a taser. That would take time. He would have had to disengage from both subjects to retrieve one of these tools from his belt (assuming he had them). But with a chemical agent in those close quarters he risked being gassed himself, possibly rendering himself helpless. Beyond that, he would likely not have been able to disengage while being assaulted. At least that was how it reasonably appeared to me, and no one was pushing or hitting me at the time!

As it was, once the officer punched the assaultive 17-year old, the 19-year old jumped on his back and attempted to strike him. Fortunately the 17-year old retreated after being struck. It then took several minutes for the officer to control the 19-year old and handcuff her, even after he was able to devote his full attention to her.

Under a “minimal force” policy the officer in this case would probably be judged to have used excessive force, despite the fact he effectively handled the situation. I would have much more difficulty as an expert witness testifying on his behalf, arguing a punch to the face was the minimum amount of force that was necessary. And for those agencies that have force policies that prohibit punching and kicking, it would be impossible. 2

Despite the difficulty we in “the business” have had educating the public about the dynamics of police force, there is a bright side. In a recent CBS News survey on the Seattle incident, 73 percent of those polled believed the officer was justified in his actions, 31 percent responding, “She was asking for it...she’s just lucky she didn’t get tasered,” and another 42 percent stating, “She should have listened to him…the officer did what he had to do.” Only 25 percent believed the punch was excessive. 3

Sometimes we don’t give the public enough credit. Once they understand the dynamics and the situation they usually get what is reasonable for us to demand from our officers in a force situation. We just need to ensure our agencies don’t unnecessarily handicap our cops and our budgets with poorly crafted policies.

 


 

Footnotes

1 Use of Force Policies and Training: A Reasoned Approach, FBI Law Enforcement Bulletin, Vol. 71, No. 1 (Nov. 2002).
2Prohibiting punching and kicking is another bad policy idea. Although there are a number of reasons to train officers that such measures are less-preferred options, and often less effective, risking injury to the officer as well, they should never be taken completely off the table.
3 www.cbsnews.com/8301-504083_162-20008175-504083.html

About the Author
Jeffry L. Johnson has 28 years experience as a police officer. He is presently a Commander with the Long Beach Police Department, California, assigned as the Commanding Officer of the Training Division. He has been a use of force instructor of both police recruits and advanced officers for 18 years. He has served as a legal expert for the California Commission on Peace Officer Standards and Training (POST), and has participated as a writer for the POST Use of Force and other curriculum. He is qualified and has testified as a force expert. He is an FBI National Academy graduate, holds a Masters Degree in Public Administration, a Juris Doctor Degree, and has been a member of the California Bar for 20 years. He also serves as a private consultant and trainer on use of force issues.






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