For many law enforcement agencies in the United States, the key U.S. Supreme Court case of Graham v. Connor is the legal foundation for their use of force policies. Graham held that an analysis of an excessive force claim should consider whether the seizure was objectively reasonable, based on how a reasonable police officer would have handled the same situation. The specific intent of the individual police officer who executed the seizure should not matter.
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While improper intentions do not make a reasonable use of force unconstitutional, good intentions do not shield an officer from liability if the use of force was objectively unreasonable. In deciding whether an officer used excessive force in an encounter, a court should consider similar factors to those described in the earlier decision of Tennessee v. Garner: the severity of the crime, any threat posed by the individual to the safety of officers or other people, and whether the individual is trying to flee or resist arrest.
Recently, California Governor Gavin Newsom signed into law Senate Bill 230 (read in full below):
require[s] each law enforcement agency to maintain a policy that provides guidelines on the use of force, utilizing de-escalation techniques and other alternatives to force when feasible, specific guidelines for the application of deadly force, and factors for evaluating and reviewing all use of force incidents, among other things.
Overall, the new law provides guidelines for the application of deadly force and factors for the evaluation of force encounters by police personnel. In response to the new law, the Los Angeles Police Department revised its use of force policy. A close review of these changes brings into question how an officer is to provide effective police services to their communities.
The revisions have two consistent themes: “necessary force” and “de-escalation tactics.” The LAPD policy defines each of these terms accordingly:
- Necessary force: The department will determine if the force application was necessary by looking at 1) the totality of the circumstances based on an officer of similar training and experiences; 2) all factors used in determining “objective reasonable” force; 3) an evaluation that the officer of whether the officer exhausted the available and feasible alternatives to deadly force, and 4) whether a warning was feasible and/or given.
- De-escalation: Referred to as “Tactical De-Escalation is defined as the use of techniques to reduce the intensity of an encounter with a suspect and enable an officer to have additional options to gain full compliance or mitigate the need to use a higher level of force while gaining control of the situation. However, this does not require that an officer risk their safety or increase the risk of physical harm to the public. These techniques should only be used when it is safe and prudent to do so.
Both terms have become more prevalent in numerous police use-of-force policies. Unfortunately, there are few court decisions that interpreted “necessary force” or “tactical de-escalation.” Many officers are left with unanswered questions as to how they may handle calls for service.
From the limited amount of judicial review on these specific issues, one may conclude that there is more of a focus on the officer’s pre-engagement actions and not the “reasonableness” of the officer’s force application. In addition, from some of the most recent high-profile use of force encounters, there is a strong trend of “hindsight analysis” regarding the officer’s application of force. Aside from an obvious “imminent” threat scenario (i.e., the initial contact involves a suspect actively shooting at people), it is expected that the officer will utilize any and all other resources before attempting to make “contact” with any individual.
Along this line of reasoning, the officer’s job becomes more challenging if the encounter involves an individual who is in “mental crisis.” One could contend that this would require a host of mental health resources prior to the officer engaging the individual.
WHAT EXACTLY DOES LAPD POLICY AND TRAINING MEAN BY “DE-ESCALATION?”
An LAPD training memorandum titled “Tactical De-Escalation Techniques” states that “tactical de-escalation” consists of:
- Redeployment and/or Containment
- Other Resources
- Lines of Communication
Pursuant to LAPD policy, the listed factors must be utilized and incorporated into an officer’s response to any law enforcement encounter. Some of these elements pertain to an officer’s actions prior to contacting the individual. One may conclude that the policy requires the officer to take these steps prior to the encounter or the basis for any force application may fail since it may be deemed that the application of force was not “necessary.”
For example, officers are expected to have a tactical plan that incorporates all their “resources” prior to their engagement with an individual. The appropriate resources will be based on the particular encounter. If the encounter involves a person in “mental crisis,” there are resources, pursuant to policy, that must be utilized in these encounters. Numerous court decisions involving individuals in “mental crisis” have indicated that in many instances a police officer is NOT the best suited to deal with these calls for service. In addition, plaintiff’s lawsuits are swift to allege that the officer was not properly trained or was not capable of managing an individual in “mental crisis.” But this is where there is a conflict between police policy and the reality of a patrol setting.
The unfortunate truth for any busy police agency is that resources are in sparse or limited supply. Too often officers are left to deal with a highly dynamic and uncertain encounter knowing that the resources that they are required to utilize are unavailable: supervisors, assisting officers, air units, Department of Public Health personnel, medically licensed personnel, K9, fire department resources, etc. Regrettably, this luxury of utilizing additional resources is very often absent in the reality of patrol simply because of the shortage.
A more in-depth reading of the LAPD training memorandum outlines other requirements that an officer must do before fully engaging the individual. However, these guidelines only add to the complexity of managing an active situation.
The memo directs the officer to determine if the individual’s lack of compliance with the officer’s orders is a deliberate attempt to resist or escape or an inability to comprehend the situation due to environmental, physical, cognitive or other conditions. One can assert that this required assessment is nearly impossible in a dynamic patrol setting, particularly without the assistance of medical personnel and medical diagnostic equipment. Realistically, an officer lacks sufficient medical training and the luxury of time in some instances to perform an in-depth assessment of the individual. Accordingly, the question arises that if the officer applies force in this scenario without doing this type of assessment, was the force application “necessary?”
The training memo explains further that there is an expectation for officers to use time to their advantage while managing dynamic encounters. The memo assumes that the officers can gain more time through their actions, or inactions, and thus implement methods of de-escalation. But the memo appears to not address the other key component of de-escalation: containment of the individual. The time component of de-escalation is moot if the individual is not contained so that others, including the individual, are not at risk to harm. The success of de-escalation requires the individual to be contained and then, if feasible, the officer must devise ways to gain time so as not to agitate an individual who is failing to follow any commands. It appears that the training protocol is more focused on slowing or stopping any response from the officer rather than containing a potential threat. The safety of others, including the officers, is secondary since containing the suspect is not paramount. It is extremely difficult to implement de-escalation techniques if the individual is moving about. Containment of the suspect to an area where he does not pose a threat to anyone is overriding in the de-escalation formula. Without that, the time factor is not relevant until there is effective containment.
Moreover, the training memo indicates that there is an expectation that the officer may need to “redeploy” in order to permit more de-escalation techniques to be utilized. The problem with this concept is that redeployment may weaken the containment of the suspect. However, the policy and training shift the onus to the officers to explain why they did not possibly open up the containment so that there was a chance for de-escalation. Opening the containment may threaten the safety and well-being of the public which begs the question of who has priority in this encounter: the welfare of the public (and the officers) or the welfare of the individual in crisis?
The LAPD policy still references the pivotal case of Graham v. Connor while incorporating the new laws regarding police use of force. As the policy states, the department shall examine the force encounter for “reasonableness” using the “Graham Factors” for guidance. Some of those factors are:
- The feasibility of using de-escalation tactics;
- Crisis intervention tactics;
- Other alternatives to using force;
- The seriousness of the crime or suspected offense;
- The level of threat or resistance presented by the subject;
- Was the subject posing an immediate threat to officers or a danger to the community;
- The potential for injury to citizens, officers or subjects;
- The risk or apparent attempt by the subject to escape;
- The conduct of the subject being confronted (as reasonably being perceived by the officer at the time);
- The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be reasonable;
- The availability of other resources;
- The training and the experience of the officer;
- The proximity or access to weapons to the subject;
- Officer versus subject factors: age, size, relative strength, skill level, injury. Exhaustion and number of officers versus subjects
- Environmental factors and/or other exigent circumstances.
The number of articulated “Graham Factors,” as listed by LAPD policy, has increased since the original Supreme Court decision. It is concerning how each of the factors are being considered in the agency’s analysis and the weight given to those factors to determine the reasonableness of the force application. Overall, the synthesis of “objective reasonable force” and “necessary force” shall lead to some perplexing findings when applied to the “tense, uncertain and rapidly evolving” reality of patrol.
ALL THINGS CONSIDERED…
The policy as outlined and the current laws in California tend to indicate that an officer should be very slow to engage an individual who is the subject of police services until there is an attempt to utilize other resources. The theme of de-escalation, if implemented the way it is being suggested, would indicate that there are very rare instances when an officer needs to “rush” to any call for service. This is particularly true in any encounter where there is even a remote chance that the individual is suffering from any mental crisis. However, the issue of the safety of the community at large is brought into question if an officer strictly adheres to these guidelines.
Based on current training standards, an officer is not the most qualified person to manage a person in mental crisis. This type of scenario is best suited for medically trained personnel. Often it has been alleged that an officer’s presence in these types of scenarios exacerbates the encounter thus any injury suffered by an individual is the fault of the officer who failed to utilize “tactical de-escalation” and other resources. This theory is often asserted in civil litigation for excessive force by the officer with a person that is suicidal or in “mental crisis.”
In light of the recent changes in California law regarding a police officer’s force applications, particularly with individuals in crisis, and with an LAPD policy stressing de-escalation and necessary force, a police officer’s services are not essentially needed for these types of calls for service. Consequently, as they would say in a patrol setting, this is a call for “Fire,” meaning it requires the services of better-trained medical personnel and not the government employee with a gun, TASER, baton and pepper spray. As for the safety of all involved parties, that will only become a concern for law enforcement personnel if the encounter becomes violent.
From a more practical assessment, police agencies and elected officials are going to need to clearly define the roles of law enforcement personnel and their overall objectives. In the past, it was understood that officers were there primarily as “peacekeepers” and their goal was to safeguard the members of the public. Based on recent high-profile events and some of the results in civil litigation, the officer’s role has changed and with it the mandates for managing their calls for service. Due to the lack of clarity in their mission to serve, officers are left to speculate as to what they need to do without facing criminal and/or civil sanctions.
NEXT: ‘But we can’t just leave!’: How LAPD SWAT implemented a strategic disengagement policy
Senate Bill No. 230 by epraetorian on Scribd