By Chris Myers
Use-of-force training has come a long way over the past couple of decades. My training partners and I have had the good fortune to train all over North America and Europe, and for the most part, officers are very well trained in use of force skills, tactics, and the selection of force options. The one are that seems to be lacking in most programs is post-incident response-to-resistance documentation.
Federal Court is often full of cases where officers in difficult situations used their training, made good reasonable force decisions, and resolved a tense uncertain situation, but the post incident paperwork didn’t adequately reflect the good police work that was done.
As a police instructor, if I ask the average officer to tell me about their last fight, they will often discuss at length the techniques and tactics they used, and the resulting effects. This is what we as police trainers have trained them to do. What they do not do however is describe what the courts want to hear. Most officers don’t adequately talk about the actions of the suspect, and the totality of the scene that led them to select the force used.
Use of Force Outline
Just like teaching officers the individual steps in any skill, it is time to teach officers, step by step, how to document a use of force encounter. No check the box or fill in the blank form can replace an effective narrative statement that includes the following elements.
• Preface — “This is a true and involuntary statement…”
• Establish conditions — Time, location, reason for contact
• Need and nature of the seizure — P.C., Reasonable Suspicion, etc.
• Assessment of threat — Specific Nature, Type and Severity of Threat, who is at risk
• Subject characteristics — size, age, demeanor, impairment, prior hazard information,
• Need for response — Why? Explain urgency. Alternatives considered, why the force used was preferable to other options
• Action taken — Specific Actions, Intended Purpose, Trained, Warning Given?
• Reassessment of the threat — Change in Behavior, Effective?
• Adaptation of the response — Escalate/De-escalate based on reassessment
• Follow-Up — Control, Restraints, Injuries? Treatment? Notification of Supervisor?
• Closing — Disposition and reporting
Preface
Many departments recognize the need to protect officers through the use of compelled statements for use of force statements. A statement given by an Officer as a condition of employment, given under orders can generally not be used against that officer in a criminal trial under Garrity. Check with your legal advisor or policy to see what language may be appropriate to preface a detailed statement.
Establish Conditions
Experienced officers routinely consider their surroundings upon approach and factor in time of day, the availability of back-up, presence of innocent bystanders, and location. I may choose to approach a hostile suspect in a dark alley, with glass on the ground, on a dark and stormy night with hostile onlookers very differently from that same hostile suspect in a brightly lit hallway with friendly professionals looking on. We often overlook these factors when documenting the incident.
Need and Nature
Use of force is a constitutional seizure. When I use my police authority to impose my will on another person it must be justified under the 4th amendment. So document it! Why was the person not free to leave or why were they obligated to follow your instructions? At the time this is often completely self-explanatory to the officers at the scene and the supervisors reviewing the report, but the judge or other reviewer may not have any experience at all in law enforcement. Spell it out, reason for being there in the first place and what was your lawful objective?
During a famous local riot we used force on “passive” protestors. Could this be lawful? Yes, there was an ongoing felony assault in the crowd with lives at risk and the “passive” protestors refused to move to allow officers to intervene and protect lives. So while the simple linking of arms did not justify the force used against them, the setting and need for immediate action to preserve a third person justified a higher level of force and made it reasonable.
Threat Assessment
Generally force is used to preserve life-safety interests, to stabilize an incident (overcome resistance), or protect property. Describe the type of threat to those three interests and the severity. Identify possible risk factors such as victims present, innocent bystanders, and any other aggravating factors such as available weapons, and hazards such as heights, nearby traffic, gathering crowd of innocents or hostile subjects.
Suspect Characteristics
Not all suspects are created equally. A suspect who has already displayed a willingness to use violence, insensitivity to pain, or superior strength may justifiably require a higher level of force. Include those factors such as level of impairment, obvious or known fighting or weapon skills, and prior contact with the suspect. Also describe the suspect’s actions. Be specific, if you say “the suspect took a fighting stance,” that can mean several different things. If instead you say, “He took a step forward, raised both hands up to shoulder level with hands in fists and lowered his head, glancing at my gun, then my head,”iIt paints a picture and demonstrates an immediate need to address the threat. Experienced officers often see little queue that others might miss. Target glances at escape routes or available weapons, a bladed stance, security checks patting or shielding a weapon or contraband should not only be noticed, but also mentioned in the narrative.
Need for Response
It may be obvious why you chose that moment in time to take action, but it has been said many times before, “if you don’t write it down, it didn’t happen” for the person who wasn’t there. Explain why there was urgency. If one force option was chosen over another, discuss why one option was better than another at the time. Current case law only requires us to make a “reasonable” choice rather than the “best” choice, but many of the more controversial rulings have addressed force options taken out of context. If you didn’t use one force options what would the other options have been? Have you already given verbal commands and tried an escort technique? The fact that those were tried and were not effective is a significant factor.
Action Taken
Okay, it is finally time to talk about what the officer did. This is normally where officers want to start their statements, but without the preceding steps it is out of context and to the inexperienced observer will not be seen as reasonable. Be specific and clear when describing the action, avoid euphemism. Start with your verbal commands — did you give a verbal warning? If not why was it impractical in that situation? What did you do, next? Were you trained in that technique? Rather than say, “I extricated him from the car,” simply state, “I took hold of his left arm, he pulled against me so I rotated his wrist and forearm forward, creating a bar-arm, and used my right hand to leverage him out of the car and to the ground for handcuffing.”
Reassessment of the Threat
Did the tactic or technique work as intended? Did you achieve the desired change in behavior? Is this person still a threat? Is further response to resistance needed?
Adaptation of the Response
If the first technique used worked, then talk about the de-escalation of force and transition to controlling or securing the suspect. If your application of force did not work, then it may be necessary to escalate your response, try again or move to a different force option. Police officers are expected to win the fight so be ready to adapt your response as the situation unfolds.
Follow-up and Closing
Once the situation is resolved we all know there is clean-up to be done. Were there injuries to the suspect or officer? If so, who treated them? Which supervisors were notified? If there are injuries they should be documented and photographed when practical. In some local cases suspects have been known to intentionally aggravate or self-inflict their own injuries after the fact to make a claim against law enforcement. Photographs can clearly demonstrate how and where force was applied as well as show where injuries were not present after a police encounter.
This simple response-to-resistance outline serves as a guide to help an officer articulate an orderly narrative from the chaos of a use of force encounter. Many officers have found it useful to print the outline on a small pocket card for use as a reference when writing a narrative. The resulting report can help communicate the tense and uncertain situations faced, and put the reasonable response of the officer in context.