Key considerations for good use-of-force policies
The potential liability in any use-of-force situation begins prior to an incident
While policy issues are not one of the more interesting topics cops want to sit through, experienced administrators know the importance of sound policy and implementation. Good policy and practice provides subsequent legal protection for the individual officer. However, the stark reality of use of force policy in 2010 America is that there are still many police departments operating from agency manuals drafted in the 1970s and 80s with inadequate deadly force guidance for officers.
This past October I had the distinct honor and privilege of lecturing at the Southern Police Institute, University of Louisville. The attendees, all mid- to upper-level police managers, were two-thirds of the way through the academically rigorous Administrative Officer’s Course. Two colleagues and I were invited to provide a three-and-one-half hour block of instruction on officer involved shootings. My presentation focused on the legal implications of department use of force policy.
When use-of-force policy is updated, it generally comes in the form of internal memorandums, directives, and regulations which are part of a larger hodge-podge assortment of other memorandums, directives, and regulations. These do not provide a centralized, cohesive statement of policy. From the knowing nods of the 50 or so attendees at the Louisville Metro PD Training Facility I could tell that many of these best and brightest among our nation’s police supervisors knew what I was talking about.
Their own experiences surely recalled agencies from their home states that were perfect examples of the proverbial “accident waiting to happen.”
During my presentation, I referenced an agency near my New York home that is guilty as charged. While representing an officer on a disciplinary matter, I had access to this particular police department’s manual. I attempted a quick reference to the agency manual’s use-of-force section to peruse its policy but was instead led to a twenty minute search to find the use of force directive. When I did find it, the whole directive was all of three-quarters of a page long and had not been updated in more than twenty years.
In casual conversation I noted this to the municipal attorney and a police commission member who was present. The attorney’s response was a deer-caught-in-the-headlights look, followed by an “Oh, really?” The police commission member was more acknowledging in his response: “Yeah, we’ve been meaning to get to that.” My hope is that this agency and the municipality underwriting its activities address the situation before one of its officers is involved in a use of deadly force.
What is the significance of use-of-force policy, especially as it relates to deadly force? Aside from state law it is the chief guideline directing and regulating individual officer behavior in this critical area. A 2003 study by the Community Relations Services to the Department of Justice found that department policies have a significant impact on how force is used in street-level encounters. It has been 25 years since the seminal U.S. Supreme Court decision in Tennessee v. Garner and 15 years since implementation of the Justice Department’s pattern and practice lawsuits against police departments under 42 U.S.C. §14141 (Violent Crime Control and Law Enforcement Act of 1994).
During this latter period there have been 20 investigations initiated by the U.S. Justice Department Civil Rights Division against police departments resulting in three consent decrees with 11 joined memorandums of agreement voluntarily entered into between DOJ and individual agencies. A review of these agreements and decrees provide ample guidance for agency policy makers in constructing an up to date, legally sound and professionally standard policy on use of force. As most DOJ statements under these MOA’s indicate:
“It is incumbent upon law enforcement agencies to ensure that officers use force appropriately. Policies and procedures must clearly set forth the legal standards for the appropriate use of force.”
The law places a positive duty on an agency to train all officers on the limit of their use of force along with when that force can be used.
Deadly Use-of-Force Aftermath
There are some distinct issues any agency must deal with in the aftermath of the use of deadly physical force. I refer to these as the “Four Problem Ps.” They are”
As to Perception, there is always an immediate value judgment made regarding the appropriateness of the particular use of force. Good shoot versus bad shoot, for instance. But what of a situation when a perpetrator is shot in the back? Or no weapon is found on or in the vicinity of the perpetrator? Any experienced officer knows these facts alone are not determinative of the justifiability of the use of force, yet media, public, and even some within the agency will make their value judgments on the particular use of force prior to the investigation being complete and all the facts ascertained.
But, the Public — the second prong of the Problem “Ps” — is often unaware of the actual legal standards applied to the use of force and are equally unaware of the training provided to officers on the use of force often relying on the presentations made by the media, which has a huge influence on the Perception prong. Additionally, community tension pre-existing any use of force encounter may exacerbate an already tense situation.
Policy — what I often refer to as either the agency savior or the devil it did not know — is the actual rules, regulations ,and training that are in place. In its formation and implementation, good policy will insulate the agency from liability. Bad policy or no policy in place will be an obvious problem for the agency.
Finally, the Practice that is in place is simply a matter of whether the policy is followed. Merely having a policy in place is not enough; it must be implemented and followed. Ideally the Policy and the Practice should mirror each other. Having a policy in place on the use of force but not training officers in the proper execution of that policy can lead to liability for an unconstitutional policy by failing to train or to supervise. These claims may give rise to a claim of deliberate indifference against supervisors and the municipality, which is akin to alleging an unwritten policy of unconstitutional behavior. Use of force policy should have a NET effect, which is to say that the department managers must
• Notify officers of the policy
• Educate officers on the policy
• Train officers on the policy
Use-of-Force Policy Critiques
Read through any of the DOJ Memorandums of Agreement with police departments regarding their use of force policy and practices and a common theme will emerge. In faulting these departments for past practices there are a few consistent criticisms which bear directly on agency supervision. These causes of action fall into five core areas:
1.) Failure to implement use of force policy
2.) Failure to train
3.) Failure to adequately monitor officers
4.) Failure to adequately investigate complaints against officers
5.) Failure to adequately discipline officers
It goes without saying that one of the most important jobs relating to the proper functioning of a police department is that of the first line supervisor. Much of the burden emanating from the above listed core areas rests on the shoulders of first line supervisors. Aside from the risks of liability to the agency and individual officers resulting from a use of force incident, supervisors are increasingly being named in civil suits seeking damages based on legal theories of gross negligence, recklessness or deliberate indifference in connection with one of the five core areas listed.
The past several years of DOJ monitoring has revealed how intertwined use of force policy is with other aspects of department operations, such as disciplinary policy, officer training and tracking of the nature, type and frequency of complaints made against an officer.
In critiquing departments’ use of force policy two general criticisms are found in DOJ review:
1.) Lack of specific policy guidance on the appropriate use of force
2.) Unclear or overly general policies
The first of these I find to cause potential risk to the public, the latter potential risk to the officer. Without specificity a policy may leave room for officers to believe they are justified in the use of force when it would otherwise be unreasonable or unnecessary. Conversely an unclear or overly general policy may have the effect of an officer becoming hesitant in the use of necessary and appropriate force when warranted out of fear of using excessive force. Neither result is acceptable.
Making Good Policy
What is the formula for a good use of force policy? Once again the MOA’s from around the country provide some useful guidance by which to check the sufficiency of your use of force policy. I have gathered them into what I refer to as the “Five Critical Cs” of policy protection:
1.) Comprehensive — the use of force policy covers the different types of weapons to be used, appropriately defines all terms, especially “deadly physical force”.
2.) Comprehensible — policy is clear and understandable, not overly broad or vague.
3.) Consistent — the policy statement does not contradict itself from other manual sections or within the use of force policy itself, such as defining two different standards for the use of deadly physical force.
4.) Current legal standards — constant legal review of training, policy updates, current with case law not only from the U.S. Supreme Court but within federal circuit of geographical location as well as state court standards.
5.) Contemporary police practices — policy meets the prevailing accepted professional practice standard, which may be reflected in accreditation standards.
The potential liability in any use-of-force situation begins prior to an incident. Bad agency policy will be the weight that drags the officer and the agency down. Use-of-force training, policy assessment and monitoring, and legal updating has to be a constant activity within an agency. Police officers deserve to be protected in their assignments, this means more than proper equipment but proper training, policy and continual assessment of agency practices. My own experiences as a police attorney and consultant have exposed the failures and shortcomings of some agencies to sustain up to date policies and procedures in the realm of use of force policy.
If your agency is one of those whose department policies might be a bit thin make an early New Year’s resolution to revise, update and implement your use of force guidelines.