One cop's response to the ER doctor survey
Significant injuries do not necessarily equate to excessive force, nor do minor injuries necessarily equate to reasonable force
A published survey reporting that emergency physicians believe that law enforcement officers use excessive force keeps showing up in the literature. The research was published in 2009 in the Emergency Medicine Journal.1 The surveys were sent to 393 emergency room physicians with 315 responding. Of the responding physicians, 99.8 percent believed excessive force actually occurs and 97.8 percent replied that they had managed patients with suspected excessive use of force. The fact that the respondents believe it “actually occurs” does not necessary imply that they believe it occurs with great frequency.
The survey goes on to report that these incidents were not reported by 71.2 percent of respondents. A full 96.5 percent had no departmental policies (for an emergency room physician to report a belief of excessive force) and 93.7 percent had not received training in the management of these cases. The survey was quickly questioned by several prominent experts including Dr. Bill Lewinski. Indeed, Dr. Lewinski plainly states that the survey’s methods appear to conform to academic standards but the results are “meaningless.”2 This comment put into context wraps up the study and its worth very accurately. Several other law enforcement professionals added their opinions as to the report’s value. Not surprisingly, these opinions closely mirrored those expressed by Dr. Lewinski.3
Take the survey for what is it, and for what it is worth. It is a report based on the subjective feelings and uninformed opinions of a group of people that have little or no training in the evaluation of a use of force incident. So what is its worth? Although it is certainly interesting reading, it holds no worth either in a legal sense related to determining the reasonableness of a use of force in any particular investigation, or in exposing any trends regarding excessive force used by law enforcement.
What Were They Trying to Prove?
It appears that the survey was only an indication that the emergency physicians believe excessive force happens. It does not appear that the results indicate a belief that it happens in great frequency. If pointing out a belief that excessive force happens is truly the purpose of the survey then it really shows nothing that we do not already know. As a profession, we use force that is objectively reasonable in the overwhelming majority of cases. That said, there are certain cases in which excessive force has been used.
The spokesperson for the research group concedes certain keys points about the report:
1.) that emergency physicians should not decide whether excessive force by law enforcement has occurred, and
2.) that by collecting data on suspected excessive force, it would show how infrequent excessive force actually occurs.
What Were They Trying to Recommend?
The controversy about this report seems to involve a recommendation that emergency physicians report suspected excessive force by law enforcement. Herein lays the rub. If the emergency physicians believe they have become aware of an excessive use of force, they should at least understand the legal parameters that are used to evaluate the reasonableness before they jump to a hasty conclusion based only on the injuries of the patient. Observing only the outcome (injuries) without knowing the totality of the facts and circumstances known to the officer about why the force was used cannot lend itself to making an informed decision regarding the reasonableness of the force application. To put it plainly, significant injuries do not necessarily equate to excessive force, nor do minor injuries necessarily equate to reasonable force.
In order to evaluate an officer’s use of force, the assessor must understand the totality of the facts and circumstances known to the officer at the time of the force application. These factors include, but are not limited to; (1) the severity of the crime at issue, (2) the threat of the suspect, and (3) the amount of resistance by the suspect. These factors cannot be known by merely observing the injuries and only listening to the account of the event by the patient. These factors must then be evaluated against the level of intrusion into the person’s 4th Amendment rights against unreasonable seizure (in this case, the level of the officer’s force response).
Although it is understood that there is no exact mathematical formula to apply in order to determine the reasonableness of the force application, there must be a reasonable balance between:
1.) the factors which precipitated the officer’s force response, and
2.) the level of the officer’s force response.
Only observing the injuries of a patient and then opining as to whether it is excessive or not is inappropriate. At best the evaluator only has a partial indication of one half of the balance, the officer’s force response.
In mathematics, consider looking at the equation of __ = 5. How can one conclude that 5 is too high or low without knowing what is on the other side of the equal sign?
How about when you hear an officer exclaim, “I clocked the car at 70 mph.” Is this an indication of excessive speed? One cannot jump to that conclusion without knowing the totality of the facts. If the vehicle was driving through a school zone during school hours with children present, of course it is excessive speed. If the vehicle was traveling on the interstate with no traffic, then most likely it is not excessive speed.
I am not trying to discourage emergency physicians from making a legitimate complaint about an officer’s excessive use of force, but I would encourage them not rush to hasty judgments based on only half (at best) of the equation. Complaints can adversely affect careers and they should not be made lightly. Many agencies have tracking systems now that report how many times an officer receives a complaint. These tracking systems have many positive aspects but if the agency head has a strict “where there is smoke, there is fire” mentality a false complaint may have long lasting implications to the falsely accused officer.
Everyone in law enforcement and in the public feels that excessive use of force is a serious concern. It should not be tolerated and requires that agencies investigate allegations of excessive force. If emergency physicians want to move forward with a protocol to report suspected excessive use of force incidents, they should include training on how to properly evaluate an officer’s force response based on complete legal guidelines and standards.
2 Force Science Institute. (February 2009). Excessive force study gravely flawed, says force science research center. Force Science News, 115.
3 Force Science Institute. (September 2011). In-box: Readers speak up about ER docs and suspected police abuse. Force Science News, 186.