In previous articles — Use of force: Defining ‘reasonable’ versus ‘necessary’ and Use of force: Defining ‘objectively-reasonable’ force — we’ve examined the concept of “objective reasonableness” as set forth in Graham v. Connor. In several of the comments below those articles, some readers made reference to a continuum of force. Some of the references seemed to support this model while others did not. This debate is fiercely defended on both sides.
Consequently, many agencies have abandoned their force continuum model (ladder, escalation, wheel, etc.) for a “force options” model.
In 2000, the San Jose Police Department became one of the first major agencies to move away from a continuum model to a “force options” model. This type of model policy is one that removes any two-dimensional diagrams and instead reflects the objective reasonableness standard as its premise. The force options available to the officer are not ranked in any particular level. This gives the officer more flexibility and discretion to choose the force option that is immediately most reasonable based on the totality of the facts known to him/her about that specific situation.
Not Based on Law
Continuum models were developed decades ago when the courts provided little guidance on use of force. They were used to explain “when” an officer could use a type of force instead of the traditional range courses that explained “how” to fire a pistol. The continuum models are not based in law and in fact may be in conflict to what would be considered “objectively reasonable” by the legal standards of today. There is no possible way that any continuum model can provide for an entire set of circumstances in each very unique situation.
Some continuum models attempt to pair up a force option with the restiveness of a suspect without any thought as to the manner in which the force option is used, the totality of the facts known by the officers or the other factors listed in the Graham decision. For years, the stun bag shotgun was referred to as the “less-lethal shotgun.”
It is well understood that the manner in which it is generally used will have a lesser intrusion level than a traditional deadly-force option. Predicating the level of a force option before knowing how it is used in a particular situation is problematic. This is one of the major downfalls of the continuum model.
Quantum of Force
The level (quantum) of any force is not merely predicated on the tool itself, but also in the manner in which it is used. For example, where would you put the baton?
One can argue that it should be in multiple places if you have a continuum. The baton held at port-arms and used to guide a protester to the sidewalk with a gentle pushing motion is certainly a very low level intrusion and therefore should be placed low on the continuum. The same baton used to purposefully strike a combative suspect in the meaty portion of the forearm is more of an intermediate level of force and therefore should be placed somewhere in the middle. The same baton used purposefully to strike a suspect in the head because the situation raises to the level of deadly force is of course, deadly force and therefore should be listed as deadly force.
Where would you put the TASER or other ECD device? One could argue that an ECD could be a deadly force tool based on the manner in which it is used. If the officer were to stand three feet away from a person and tilt the TASER device 90 degrees (probes to deploy on horizontal plain) and put the red dot directly onto one eye so the “top” probe will hit one eye and the lower probe should hit the other eye, there is a significant risk of serious bodily injury or death...which is the current definition used by most courts in the United States.
Those that demand a continuum to teach might be thinking too one-dimensionally and not taking into consideration the second part of the equation. The San Jose Police Department teaches (and the policy reflects it) using the language of the California statutory law authorizing reasonable force (California Penal Codes 835 and 835a) and 4th Amendment law interpreted through case law (specifically Graham v. Connor and Forrester v. San Diego).
A test we use that seems to be very helpful is the “Graham Scale.” We conceptualize a typical two-plate scale (like the Scales of Justice). In one plate we put the factors listed in Graham based on the officers perception at the time (severity of crime at issue, threat of the suspect to officer and others, the level of resistance of the suspect). These factors are all “weighted.” The force option (tool and the manner in which it is used) goes in the second plate goes and that is “weighted” as to its intrusiveness, or reasonable expectation of injury.
What we are looking for in this model is somewhat of a balance between the Graham factors and the quality and nature of the intrusion into the persons rights against unreasonable seizures. It is understood that the scale will never be exactly dead level but that is not what is required of the officers. The plates should be somewhat balanced and that is where the reasonable comes into play instead of the exact or minimal amount of force necessary.
If the scale tips too far on the level of force (intrusion) then we get into excessive force. If it tips too far the other way, we may be looking at an officer safety issue. This model can be used as a teaching method through various examples and scenarios.
The key to this force options model (and any other model) is training.
We spend time explaining the law and how an officer’s force response will be evaluated. The trainee is then given several scenarios to operate in using this model. After they are done in the scenario, they must clearly articulate and justify their responses based on the law and policy.
The courts have been very clear in saying:
1.) the test is one of reasonableness and not escalation, and
2.) officers are not required to use or try lesser alternatives to work up to reasonable force.
There are several other pitfalls in using the continuum model that are well documented in the literature. I recommend that each officer research these articles on both sides of the debate. Then, and only then, can the officer make a well-reasoned choice as to which model best reflects “best practices.”