By Chief (Ret.) Michael Ranalli, Esq.
Editor’s note: This article, part of series, has been excerpted and adapted from an article originally printed in The Chief’s Chronicle; New York State Assn. of Chiefs of Police. Reprinted with permission.
Law enforcement leaders today face significant pressure to change use of force policies and procedures. Much of this pressure comes from well-intended but often misinformed citizens, community leaders and the media. In March 2016, the Police Executive Research Forum (PERF) waded into this controversy, releasing Guiding Principles on the Use of Force. This report listed 30 Guiding Principles that it said were “intended to take policing to a higher standard of performance and services, and to make policing safer for everyone.”
Not surprisingly, the report caused considerable controversy within police circles. I believe PERF should be commended for attempting to address an issue of such magnitude. But like many law enforcement leaders, I have concerns about how some of the principles may be interpreted and haphazardly adopted—concerns that are confirmed by news articles about police departments rushing to adopt the principles, and changing policies in the process. Nevertheless, this report is an important piece of the ongoing dialogue on police use of force, and a closer examination of some of its recommendations is warranted.
In this article, I’ll take a look at the first Guiding Principle, involving sanctity of life, and suggest a better model—priority of life—that I believe achieves the intent of the PERF principle while also enhancing officer safety.
PERF Guiding Principle #1: The sanctity of human life should be at the heart of everything an agency does. Agency mission statements, policies, and training curricula should emphasize the sanctity of all human life—the general public, police officers, and criminal suspects—and the importance of treating all persons with dignity and respect.
Sanctity of life is, or should be, important to law enforcement officers already. Making it clear in mission statements, policy and training is important; I doubt few if any law enforcement leaders would disagree. How it is drafted and implemented is the real issue.
As written, the PERF principle is capable of being interpreted by the media and civilians incorrectly, leading to the mistaken belief that officers always control the decision to use force. Instead it is usually dictated by the actions of the subject involved. Officers, by contrast, will commonly place themselves at unnecessary risk and ignore the fact that their own lives are subject to the same sanctity.
A better model for PERF’s Guiding Principle is to incorporate the concept of Priority of Life (POL). POL is a recognition that officers may be faced with situations where the actions and decisions of other persons will require a prioritization of the lives of all persons involved to bring the situation to a successful conclusion. The safety of hostages, innocent persons and officers typically takes priority over the safety of individuals engaged in criminal or suicidal behavior. Put another way, some persons (e.g., violent criminals, subjects who threaten the safety of themselves and/or others) are lower in the application of the principle of POL in a situation created by that person.
This does not mean that such a person’s life is not valued. Instead it is an acknowledgment of the reality that some situations require an officer to make decisions that should be consistent with proper POL. In such case, if necessary, the POL will dictate the need to use some level of force to terminate a threat to innocent persons and/or officers. The ideal result, and the primary goal, is that everyone involved survives the critical incident. But this is not always possible.
Proper application of POL should also take into account the issue of discretionary time. When an officer has discretionary time, the situation reasonably appears to allow for time to consider possible available options and alternative methods of completing the task. Situations that do not afford discretionary time require an immediate response, without time to safely or effectively consider other options or alternative methods. In these situations, officers may need to assume additional risk in order to protect innocent human life. In situations where discretionary time exists, officers may be able to maintain equal priority of life with involved innocent persons.
Whenever possible, no human life should be put at risk—including the person creating the situation—if it is not reasonable and necessary under the circumstances as they appear to the officers involved. Proper application of POL and discretionary time to a situation involves an understanding of the interrelationship of the following principles:
- Appropriate legal foundation – this is the basis for the justification of any law enforcement response. The officer’s proposed actions or entry upon property should reasonably appear to be consistent with law.
- Appropriate safety foundation – the proposed actions should take into consideration the safety of those involved as well as the officer. If officers unnecessarily place themselves at risk, they may also place innocent persons at risk.
- Appropriate goals and objectives for proposed actions – the proposed action may appear to be legal but the goals and objectives still need to justify the proposed action in light of the predictable risk the action would involve.
The lack of an appropriate legal foundation may terminate any further immediate response (e.g., a situation on private property with no warrant or other legitimate means to enter or arrest). The safety of all involved and the goals and objectives of the proposed action are closely interrelated. Enforcement of a minor offense or the protection of personal property may not justify placing an officer or other person at foreseeable risk, while the imminent use of deadly force by one person on an innocent person may justify the assumption of significant risk by an officer.
Reacting to anticipated pushback on the Guiding Principles after their preliminary report was issued in January, the March PERF report emphasizes (p. 14): “At the heart of many of these concerns is officer safety, and the fear that any changes to use of force practices could put officers in danger … But our research has led us to an alternate conclusion: that changing how agencies approach certain types of critical incidents can increase officer safety in those situations.” I could not agree with this statement more and that’s why I feel it is absolutely critical to include the concept of POL in any discussion related to sanctity of life.
The reality is that in some of the situations where officers must use deadly physical force, they have actually compromised their own POL and placed themselves in a situation where they are now at risk and have no choice but to use force. This is sometimes called “officer-created jeopardy” and in almost every such case the officer has in fact violated what should be the sacred concept of POL. An understanding of POL by officers, supplemented by consistent and timely supervisory feedback, can help to minimize such occurrences.
An agency merely stating, “We believe in the sanctity of human life” is not a concept that can be applied by officers in a practical or functional manner. Sanctity of human life is the basis for which POL exists, but both must be discussed and trained on together to be successfully adapted into departmental operations and day-to-day supervision.
One final note on this principle deals with PERF’s comment that emphasis should also be on “…the importance of treating all persons with dignity and respect.” Consistent with prior PERF publications on legitimacy and procedural justice and the reality of police work, treating all persons with dignity and respect should be a standalone principle. All interactions, both internally between agency members and externally with the public, require dignity and respect, not just critical incidents.
Lexipol policy content captures the essence of both sanctity of human life and POL due to its foundation on risk management principles. Statements consistent with sanctity of human life can be found in existing Lexipol policies:
- Use of Force Policy: “The Anytown Police Department recognizes and respects the value of all human life and dignity without prejudice to anyone.”
- Crisis Intervention Policy: “Members should treat all individuals equally and with dignity and respect.”
- Standards of Conduct Policy: “Discourteous, disrespectful or discriminatory treatment of any member of the public or any member of this department/office or the City/County” is cause for disciplinary action.
In addition, Lexipol policy content reinforces the sanctity of life in two ways:
1. Proactively by identifying factors in policy relevant to various situations that law enforcement officers predictably will face
2. Retroactively by mandating supervisory review and/or administrative review.
In other words, Lexipol policy addresses critical decision-making factors to be considered during an incident, and mandates that those decisions be reviewed when there is time to do so.
This two-fold process is designed to encourage agencies to be learning organizations, to analyze past situations and decisions to improve future performance. Policies that include this two-part approach include:
- Use of Force Review Boards
- Conducted Energy Device
- Vehicle Pursuits
- Foot Pursuits
- Hostage and Barricade Incidents
- Crisis Response Unit/SWAT
- Crisis Intervention Incidents
- Rapid Response and Deployment
- Warrant Service
- Operations Planning and Deconfliction
In the next part of this series we will review PERF’s second principle: developing policies, practices and training on use of force issues that go beyond the minimum requirements of Graham v. Connor.
Editor’s Note: The topic of Priority of Life will be presented in more depth in a Lexipol webinar on July 27, 2016, at 1:00 pm EST. You do not need to be a Lexipol customer to participate in the POL webinar. Register here.
MIKE RANALLI, ESQ., is a Program Manager II for Lexipol. He retired in 2016 after 10 years as chief of the Glenville (N.Y.) Police Department. He began his career in 1984 with the Colonie (N.Y.) Police Department and held the ranks of patrol officer, sergeant, detective sergeant and lieutenant. Mike is also an attorney and is a frequent presenter on various legal issues including search and seizure, use of force, legal aspects of interrogations and confessions, wrongful convictions, and civil liability. He is a consultant and instructor on police legal issues to the New York State Division of Criminal Justice Services, and has taught officers around New York State for the last 11 years in that capacity. Mike is also the immediate past president of the New York State Association of Chiefs of Police, a member of the IACP Professional Standards, Image & Ethics Committee, and the former Chairman of the New York State Police Law Enforcement Accreditation Council. He is a graduate of the 2009 F.B.I.-Mid-Atlantic Law Enforcement Executive Development Seminar and is a Certified Force Science Analyst.