09/03/2000

DOCUMENTING THE USE OF FORCE

By Lt. Stephan J. Rogers

You're at the end of a long shift when you get the call of a physical fight and respond in time to see the suspect hit the victim. You make a safe approach with your back up and contact the suspect. He turns and swings at you, you use the proper amount of force, taking him into custody without further incident. The suspect enters a plea and all's well that ends well, right? No big deal.

Even doing everything right and with the criminal plea, you may end up in civil court months, or years later. How did you document the incident in your report? Can you remember the details of this incident hundreds of calls later?

Consider these important factors in your report:

· Describe your mode of uniform and assignment
· Explain what you ordered the subject to do and his response
· Use the proper terminology for that use of force technique that you employed
· The terminology you use in your report and testimony must coordinate with what your trainer or expert witnesses are saying

Neglecting to put the particulars of the incident in your report, especially when the incident was "no big deal" to you, may mean your memory of the incident will not fully serve your defense.

At the time you thought it was no big deal, but now you are going to have to convince the jury that it was a big enough deal to deprive a person of his freedom. You may have to convince them he doesn't deserve a "gazillion" dollars for the claims he is making against you, a version of the facts only you know are outrageous and preposterous.

Here's one case where inadequate reports cost the officers involved. The suspect is a male adult, 26-27 years old, weight lifter, former Marine, martial artist. While driving he gets cut off by a male adult, 45 years old, 140 lbs.

The suspect follows the victim to a shopping mall parking lot about 3 blocks away, confronts him, yells racial slurs and epithets and does martial arts kicks in front of the victim. The P. D. is called to handle the disturbance. The first officer is able to calm the suspect and moves between the suspect and the victim until backup arrives. The suspect is loud and yelling, preventing the officers from doing their investigation and interviews. The Sergeant on scene tells the suspect to be quiet, suspect refuses, the Sergeant grabs him, suspect pulls away and a 53 second "struggle" ensues. The suspect is subdued with the use of pepper spray and is taken into custody without further incident.

The first officer on the scene had witnessed everything, the cussing, racial slurs, the struggle and the arrest. While the fourth officer didn't write a report at all, three of the officers present wrote less than one page.

The case went to a Federal Court and ended in a hung jury. Due to other circumstances, it could not go back to trial and the case was settled for $78,000. At the trial the first officer could remember there were racial slurs, but couldn't remember exactly what had been said. The only way the defense knew exactly what had been said was because one of the mall guards had written a three-page report with quotes. Detailed reports by all the officers would have been extremely helpful to the defense in this case.

CONTACT

If this is a case of "While I was on routine patrol, in full uniform and in a marked patrol unit", "While I was working in plain clothes in an undercover capacity" or "While I was in the process of serving a search/arrest warrant dressed in full tactical uniform" it should be reflected in the report. How did you identify yourself? If in full patrol uniform it becomes less of a problem of recognition than plain clothes or even tactical uniform. You need to document how and when you properly identify yourself.

You need to describe how you came to be at this particular location and how you came to contact this subject:

* A dispatched call
* Citizen information
* Confidential informant
* Observation

How you got there:
* Plain car
* Marked patrol unit
* Tactical van
* Bicycle
* Mounted patrol
* Foot

Assignment you were working at the time:
* Patrol
* Narcotics
* Special Enforcement (Type)
* Special Patrol (Type)

COMPLIANCE

The desired result in any confrontation is compliance to lawful orders. The action of the subject determines the reaction of the officer and what he must do to safely get the subject to comply with his orders. Quote your commands and the subject's response. Once you're in court there will sit a clean-cut guy in a three-piece suit saying he did nothing to deserve your actions. All you are able to remember is that he cursed you. That won't make much of an impression on the jury. However, if you have exact quotes in your report, it can help the jury understand the circumstances of the force options employed. If his response requires an escalation of force, explain why.

FACTORS

Every evaluation of force by a jury is based in part on the disparities between yourself and the suspect: size, weight, age, gender, strength, fighting skills of each participant, physical condition, clothing (officer wearing full Sam Browne, uniform, and vest versus the suspect wearing light or casual clothing). How did you feel at the time of the confrontation? Fatigue factors such as just ending a foot pursuit are very important factors. Comparing other suspects to officers will help determine if the force used was reasonable. If there were any other officers!

What other factors did you observe? Jailhouse tattoos may be a major warning sign to you, but unless you can explain their meaning to a jury, they won't understand your concern. Suspect weapons, or possible weapons, fighting stance, and/or his telling you his hands are "lethal weapons". All of these factors are important and must be specified. The kitchen is a potentially dangerous place to contact a suspect but jurors or others reading your report may not realize the potential cache of weapons located there without an explanation. If the contact is in a high crime neighborhood, it may be a place for potential allies for the suspect and must be described completely.

TYPE OF FORCE USED

You must describe, and be specific, what type of objectively reasonable force was used and to what extent? Which tool did you pull out of your tool bag;

* Presence
* Verbal command
* Firm grip
* Pain compliance
* Personal weapons
* Knees
* Fists, ect.
* Chemical agent (type & length of exposure)
* Electrical device (type & length of exposure)
* Restraint device (most commonly handcuffs)
* K-9
* Impact weapon
* Straight baton
* Side Handle baton
* Collapsible baton
* Police Nunchuk
* Fist
* Flashlight
* Deadly
* And any other tool or types of force that may be authorized or issued by your department.

You must be able to describe the use of force techniques by their proper name rather than using general descriptions. By detailing the effect or lack thereof that your particular choice had on the suspect the jury will be able to understand your force options.

IDENTIFICATION AND VERBALIZATION

Were your commands loud and clear enough to be understood? Documenting the oral commands used before, during, and after the Use of Force is vital to proving your proper conduct. "You are under arrest", "Put your hands behind your back", "Stop fighting/resisting", "Get on the ground" need to be included in the report to show that you continued to demand the suspect's compliance through the incident. Also, describe what the suspect's response was to your verbal commands.

After the suspect is in custody, record any actions that were taken for the welfare of the suspect, you, or other officers, such as double locking the handcuffs, first aid or medical treatment rendered. Log any injuries or equipment damage that you suffered. List the evidence obtained, as well as any audio or video taped interviews. If a statement is recorded it will lock a witness or suspect into that testimony.

TIPS

Here are a few tips to help you stay safe on the street and in the courtroom:

* Training; Get it/Refresh it: Officers and agencies too often feel that once the training has been obtained, there's no reason for practice or refresher. This is absolutely false. You must practice, practice, and practice some more. It doesn't matter what the skill is, from verbalization to deadly force, you need to practice your skills, and they are perishable. Be sure that you keep records of any training received, especially any that you have paid for yourself. Make sure that the department has records of that training as well.

* Documentation; You have heard it before. "If it is not written, it did not happen". You used the proper amount of force, you know why you did, now write it down. Again, the way trial dates go, it could be months before you go to the criminal trial and years before the civil trial. Documentation of the facts is the key to proving your defense of your actions. Not only must you write it down, it must be written in detail. That judge and/or jury must understand how you felt at the time of the incident and why you chose the option you did. The standard line "I used the force necessary to make the arrest" may be a correct statement, but it does not tell "the rest of the story". It is too general and without further explanation could be construed as evasive by a jury. Even though it's the end of a long shift on overtime and the D. A.'s Office is pressuring you for the report, don't rush and leave out the fine points! A few extra minutes spent here could save you weeks in a Federal Courtroom down the line. If you are specific on every arrest or contact you make you can show by documentation that you do not "beat or abuse every person you contact". The oral command or strong grip may end the confrontation but the judge/jury won't know that without the proper and detailed documentation. F the only contacts you document are the use of force incidents, that is all they will see.

* Terminology; Use the same terminology as your trainer: If an outside expert comes and uses other terms, that disparity can be easily explained. For example when teaching an impact weapons class, the instructor should give each student a handout containing an outline of the class and a list of proper terminology. Students should keep this list available for reference during report writing. That way if the instructor has to testify in a use of force situation we're all "playing from the same sheet of music".

* According to the P.O.S.T. certified Side Handle Baton

Instructor's Course, when you are describing target areas use generalities such as "lower leg" or "mid-arm". If you are too specific here, you may get asked things such as why didn't you just hit the gun/knife/bottle/bat, out of the defendant's hand if you're so good at hitting an exact target on a moving subject.

* It is a "Big Deal" If you had to use force to take someone into custody, itemize the circumstances of how, why, and the reason you chose that particular force option. Most departments no longer use the "stair step" approach to force options; all of our options are available without having to use any one in any specific order. However, you must be ready to explain your choice of force options. You may also have to explain why there is no longer a gradual scale (stair-step) of force, or explain how the suspects don't use a scale of force continuum at all, be ready to explain it in layman's terms so that the jury can readily understand it.

* Be aware; An officer's word is not always believed: In this day and age, with the sensational trials the public has seen over the last few years, the "cop's word" is not what it used to be. The term "Question Authority" is again rearing its ugly head. It will not matter if you are unbiased, or have nothing to gain; you cannot depend on a jury to take your word at face value.

SUMMARY

* Remember the particulars of your assignment: how you got there, the call, what was said, what each of you did.
* Describe the disparities between you & the suspect: size, skill, your surroundings, possible weapons available, mode of dress.
* Type of force used: you don't need to go through the "stair-steps" of force options, go directly to the level or type of force you need to use and explain why.
* Use proper terminology: be sure to speak the same language as your trainer and/or expert witness.

Finally, this is not an exercise in writing a report that looks like a book. It is doing the right thing for the right reason. The use of force is a critical event and proper documentation is a requirement. If you constantly use proper terminology, and keep to the point, it will pay off big dividends in the end.

About the Author:
Lt. Steve Rogers is currently the Northern Division Commander for the Inyo County Sheriff's Dept. and works out of Bishop, CA. Lt. Rogers is P.O.S.T./N.R.A. certified as a pistol, shotgun, sub-machinegun and rifle instructor. He is certified as a Chemical Agent Instructor, Survival Shooting Instructor, Impact Weapons Instructor and a Distraction Device Instructor. Lt. Rogers has worked custody, patrol and administration as a Deputy and as a Sergeant. As a Sergeant he was also assigned to the Internal Affairs Division as an investigator. He is currently the Senior Baton Instructor, the Senior Firearms Instructor, and the Internal Affairs Commander for the department.





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