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A proper use of force report — protection against liability
We're pleased to present the article below from PoliceOne Special Contributor Chuck Joyner. Supervisory Special Agent (SSA) Joyner is currently a program manager for a FBI international initiative. He was employed by the CIA from 1983 to 1987 and has been a Special Agent with the FBI since 1987. Chuck is the creator of the Dynamic Resistance Response Model (DRRM), a modern Use of Force model. We must emphasize that the views expressed in this article do not necessarily represent the views of the FBI.
Officers rarely have to use force when dealing with subjects. A 1996 Bureau of Justice Statistics’ pretest of its Police-Public Contact Survey indicated about one percent of the people who had contacts with police reported the officers used (or threatened) force beyond presence and verbal commands. However, officers recognize they are likely to use force a number of times during their careers. Once force is used, it is not uncommon for the officer to be scrutinized, criticized, and possibly sued. It has been estimated as many as one in every 60 officers in the U.S. is currently being sued for a use of force incident. Therefore, it is prudent to take necessary precautions after a use of force incident has occurred.
To successfully combat a use of force lawsuit, an officer must do two things. First, and most importantly, the officer needs to be right (i.e., reasonable) in the use of force. Second, the officer must carefully and clearly document why he/she was right and reasonable. Any inaccuracy or omission in the report will be used to attack the officer’s integrity and professionalism.
Beginning with the use of force incident itself, it is sensible to say every officer’s objective when approaching a subject is to gain compliance as safely and quickly as possible – with the emphasis on safety. The report prepared after the incident must emphasize this fact. In addition to the “check the box” format used by many departments, the officer must also provide a narrative of the event. The narrative should clearly show the officer’s response to the subject’s resistance was reasonable and proper. Most departments refer to such a report as a “Use of Force Report.” This designation can be misleading as it tends to indicate a focus on the officer’s actions rather than the resistive actions of the subject. The Urbana Police Department, Urbana, Ohio, has changed the title to “Response to Resistance” report patterned after article, “The Dynamic Resistance Response Model, A Modern Approach to the Use of Force” which appeared in the September 2007 issue of The Law Enforcement Bulletin.
By doing so, Urbana P.D. has more accurately defined the encounter. The subject’s level of resistance will always determine the officer’s response, and every action taken by the officer is to gain compliance. Recognizing the subject/resistor controls the interaction, the report must first focus on the actions of the resistor.
The report should follow a pattern of Situation, Action (both the resistor’s and the officer’s), and Results. For example, in describing the situation, the officer must document the nature of the call or what caused the officer to come into contact with the resistor. The situation would also include all known and suspected characteristics of the offender and the officer. This includes age, gender, size, skills and abilities, numbers of subjects/officers, and injuries or illness. Does the subject have a criminal record and/or a propensity for violence? What are environmental conditions? If it’s cold, icy, or wet, then traction and balance may become an issue. Is it a high-crime area? Is it in the subject’s neighborhood where others may attempt to interfere? Also, what is the presence or availability of weapons? (Recognize a weapon is always present and available to the subject. Every year officers are killed with their own service weapon.)
After completely articulating the situation, the officer must then document the actions. What were the resistor’s actions upon arrival of the officer? After providing verbal and lawful commands, what did the resistor do? It is woefully inadequate to write something such as, “I struck the subject with my baton because he resisted.” A better statement would be that upon seeing the officer, the resistor dropped his right leg back, bladed his body, slightly bent his knees lowering his center of gravity, and brought his hands up to chest level in a fighting stance. The resistance must be precisely defined. At each stage of the account, the officer must clearly articulate the subject’s resistance and the officer’s response to the resistance in his/her effort to gain compliance.
When describing the appropriate response, it is imperative officers document their perception of the threat. Law enforcement is a macho profession, but now is not the time to deny reasonable and rational fears. Without fear, or without feeling threatened, the officer has no legal right to use higher levels of force. If the officer doesn’t believe his/her safety, or the safety of another, is threatened, then only passive techniques may be used. For example, some officers, reluctant to admit during testimony they were afraid, have foolishly stated they did not fear a knife-wielding assailant. A plaintiff’s attorney or prosecutor could then logically ask, “If you did not fear death or serious bodily injury to yourself or another, then why did you use deadly force?” For every action taken by the resistor, the officer must not only state the officer’s physical response, but also the officer’s mental and emotional response.
Finally, the result section should include any injuries or property damage. Was medical aid requested? Were photographs taken of the area, injuries, property damage, etc.?
Any time an officer uses force to arrest a resistive subject, there is a high probability it will lead to an administrative inquiry, lawsuit, or worse. Officers should recognize the gravity of the situation and take adequate time to prepare a complete and accurate report. Supervisors and reviewers of the incident report have a responsibility to their officer and to their department to ensure the report is “court-ready.” Everything in the report must clearly and completely document the subject’s resistance, the officer’s response to the resistance in his/her attempt to gain compliance, and how the officer’s response was reasonable, proper, and lawful.