National Consensus Policy on Use of Force Should Not Trigger Changes to Agency Policies

By Bruce D. Praet, Esq.
Co-Founder & Director, Lexipol, LLC

Continuous improvement is at the heart of law enforcement and risk management. And use of force is likely the most scrutinized topic in the crossover between these two disciplines. Certainly, no one disputes the need to continuously improve use of force policies.

Use of Force Policy - LexipolBut it’s the way in which we do so that matters. Earlier this month, a small group of 11 law enforcement organizations released a sample policy template labeled as a National Consensus Policy on Use of Force. (It’s important to note that there are major groups that did not sign onto the policy, including the National Sheriff’s Association and the Major Cities Chiefs Association.) The group explained that it “felt the urgency to release” the policy without accompanying policy discussion and rationale, which is expected in the coming months.

Such approaches are not new. In January 2016, the Police Executive Research Forum (PERF) came out with its 30 Guiding Principles document, which suggested that law enforcement should “go beyond the legal standard of ‘objective reasonableness’ outlined in the 1989 U.S. Supreme Court decision Graham v. Connor.”

While urging agencies to go beyond Graham v. Connor may garner political points, it is less helpful in the real world. Several years ago, our forefathers decided that there would be nine of the finest legal minds in the country who would interpret the law of the land. For almost 30 years, law enforcement has learned to function under the guidance of the Supreme Court’s “objective reasonableness” standard. What would happen if each of the 18,000+ law enforcement agencies in the United States formulated their own standard “beyond” Graham?

In fact, PERF later followed with a more comprehensive document that clarified its intent, saying that “Agencies should continue to develop best policies, practices, and training on use-of-force issues that go beyond the minimum requirements of Graham v. Connor.”

This is just one example of the dangers of changing or writing policy language in haste. While most people can agree on some of the principles found in both the PERF and Consensus Policy documents, it is how you say it that matters. As a former cop and attorney who has been successfully defending use of force cases in the federal courts for over 30 years, I can confidently say that every word of an agency’s policies will be dissected at trial—and often portrayed out of context.

For example, just a few of the issues a plaintiffs’ attorney would highlight in the recent Consensus Policy:

    • “Use of physical force should be discontinued when resistance ceases or when the incident is under control.” After having correctly set forth the “objective reasonableness” standard in the policy’s prefatory language, the authors conspicuously fail to incorporate the essential “reasonably believes” language in this provision. Lexipol policy, on the other hand, incorporates this concept by including “whether the conduct of the individual being confronted no longer reasonably appears to pose an imminent threat” into the factors used to determine the reasonableness of force.
    • “Only the minimal amount of force necessary to control the situation shall be used.” This language imposes an unrealistic standard of “necessary” force rather than the appropriate legal standard of “reasonably appears necessary.” Lexipol policy includes this concept by stating, “Officers shall use only that amount of force that reasonably appears necessary given the facts and circumstances perceived by the officer at the time of event.”
    • “An officer shall use de-escalation techniques … whenever possible and appropriate.” While “de-escalation” has become the latest buzzword and is conceptually advisable, agencies must exercise extreme caution when mandating action with the use of inflexible “shalls.” Recognizing that critics and attorneys will inevitably argue that de-escalation or other action was ultimately “possible and appropriate,” the Supreme Court in Graham cautioned against using the benefit of 20/20 hindsight. As such, it is essential that every aspect of every use of force policy retain the critical “reasonably believes” qualifier. It’s also why Lexipol policy clearly defines the difference between “shall” and “should” and cautions against the unnecessary use of “shall.”.

Differences like these point to the difficult nature of developing use of force policy language and support a measured, reasoned evaluation of new ideas and documents. Agencies that move quickly to change policy run the risk of adopting inconsistent, legally indefensible policies.

For the more than 3,000 agencies across the country currently subscribing to Lexipol, we will continue to provide the latest, most defensible, customizable and functional policies and updates available. These policies take into account the myriad state and federal laws and regulations, court decisions and of course, the realities of the streets and the courtrooms. We will also continue to stress the importance of training on policy, whether through Lexipol’s Daily Training Bulletin service or other sources. But we will always urge caution when any model policy is released or new buzzword concepts threaten to upend years of legally defensible policing and create confusion for officers and leaders alike.

Law enforcement is in a unique position to educate the courts and the public in the continuing process of understanding and improving our profession. When new model or template policies are released, we should review these documents carefully, searching for opportunities for continuous improvement. But we must also be careful not to make ill-conceived changes to proven policy. Hastily released policies not only increase liability, but unduly endanger the very officers asked to follow them and the public they are asked to defend.

 Bruce Praet - LexipolBRUCE PRAET is the co-founder of Lexipol and a partner with Ferguson, Praet & Sherman, a law firm that specializes in defending police civil matters such as shootings, dog bites and pursuits, while representing management in personnel matters. Bruce started his law enforcement career in 1973 as a police officer in Laguna Beach. In 1974, he moved to the Orange Police Department where he worked Patrol, Detectives, SWAT and K-9. After finishing law school, he went to work as an Assistant General Counsel to the Los Angeles Police Protective League and later served as an Assistant City Attorney for the City of Orange, exclusively handling police litigation. Bruce has been heavily involved with POST committees and curriculum and is a guest speaker for numerous statewide police associations, the FBI Academy, the CHP Academy, and national peace officer associations.

Lexipol’s Law Enforcement Policy Manual and Daily Training Bulletin Service provides policy updates based on changing laws and court rulings, so you can rest easy knowing your policy reflects the latest legal and industry standards. Contact us today to find out more.

Lexipol Law Enforcement

  • REQUEST MORE INFORMATION

    (844) 312-9500

Jim Franklin, Executive Director
Minnesota Sheriffs' Association, MN

"Lexipol is, indeed, ahead of the curve with their unique risk management solutions in law enforcement. The Minnesota Sheriffs' Association has been eagerly anticipating the release of the Lexipol Custody Manual. Lexipol meets the needs of law enforcement and custodial agencies by recognizing the emerging challenges facing our agencies, and providing comprehensive tools and resources to reduce liability and risk in a professional and highly efficient manner. The Minnesota Sheriffs' Association is proud of its continued partnership with Lexipol."

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Captain Jesus Ochoa
Coronado (CA) Police Department

“Knowing that Lexipol is keeping our policies current means that there isn’t something else for us to worry about. We can focus on our jobs. That definitely gives us peace of mind.”

Chief Joseph Morris
Arapahoe Community College (CO) Police Department

“Officers are not infallible. We have limited memories like everyone else. Working under stress presents more challenges. There are times we need to access policies in the field so we are comfortable in our decision making. The mobile application has been great for this!”

Lt. Victor Pecoraro
Auburn (CA) Police Department

“The updates are super easy because you can pop them open, see the redline versions and be able to edit it on the fly. Once I learned I could do that, I was excited.”

Chief Corry Blount
Bartonville (TX) Police Department

“I feel comfortable that when we issue a policy, it covers what it needs to cover. It’s the most comprehensive policy content I’ve used in my career.”

Chief Greg Knott
Basalt (CO) Police Department

“Lexipol gives you peace of mind because the policies that you’re implementing have been reviewed by professionals in the field and by attorneys—not just your agency’s legal counsel.”

Lt. Ed Alvarez
Bay Area Rapid Transit (BART) (CA) Police Department

“I like the mobile app because it tells me no matter where I am when I have updates to complete or when people take the DTBs. No matter where I am, I have access. The officers can get real-time updates. Everything is at their fingertips, any time.”

Assistant Chief Bill Holmer
Glen Ellyn (IL) Police Department

“It’s a no-brainer for me. Someone is watching for changes to laws for me, and then tweaking the content based on those changes or updates in best practices.”

Deputy Chief Robin Passwater
Kankakee (IL) Police Department

“If you don’t have Lexipol, even with a full-time person dedicated to policy, there’s almost no way you can keep updated on all the laws and also have the training component. It’s an excellent system.”

Commander Leslie Burns
Mercer Island (WA) Police Department

“Lexipol provides a huge advantage for agencies pursuing accreditation. The tools take about 60% of the difficulty out of the accreditation process. If you want to be accredited, this is the way to do it.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Chief Ralph Maher
Oak Creek (CO) Police Department

“With Lexipol, I know our policy manual is going to be up to date. I can turn my back on it today and tomorrow there will be any needed updates waiting for me. That allows me to focus on some of the other things I have to do as a chief.”

Chief Jeff Wilson
Orofino (ID) Police Department

“The Lexipol Policy Manual is easy to use, it’s convenient and you have peace of mind knowing that you have a thorough manual that is going to stand up to any challenge the agency may face.”

Chief Kelly Stillman
Rocky River (OH) Police Department

“I can’t say enough about the positives from a chief’s perspective. I don’t know why everyone isn’t with Lexipol.”

Deputy Chief John McGinty
Simi Valley (CA) Police Department

“You get sued for your policies or you get sued for your actions, or both. You can only do so much about actions. But having Lexipol gives me confidence that if we draw a lawsuit, our policies won’t come under attack.”

Sheriff Gerald Antinoro
Storey County (NV) Sheriff’s Office

“Lexipol is one of the best products I have seen in my 30+ years in law enforcement.”

Chief Deputy Lauren Osborne
Surry County (NC) Sheriff’s Office

“If there’s a change as a result of case law, or a procedure that needs to change, Lexipol does the legwork, sends it to us, we approve it and send it out to our people for acknowledgement—and it’s all documented.”

Chief David Maine
The Village of Hunting Valley (OH) Police Department

“What we had before Lexipol had been around for years. It was like every other policy manual I had seen: It didn’t get the updates it needed. The Lexipol manual is a living, breathing document.”

Captain Jeff Schneider
Yakima (WA) Police Department

“KMS tracks and logs when people acknowledge and accept updates, which is very important, and it lets us track who isn’t getting the updates so we can give them the appropriate attention.”

Chief John Defore
Hiawatha, KS

“By offering 365 daily training bulletins to my officers, I am saving far more than the cost of the software every year. In fact, I was able to show my commissioners a cost savings by utilizing Lexipol for our policy and policy training needs.”

Lt. Craig Capps
White County (TN) Sheriff's Office

"I would recommend Lexipol to any law enforcement agency, whether three-person or 2,000-person—it makes no difference. The program works.”

Sheriff Blaine Breshears
Morgan County (UT) Sheriff's Office

“We had a use of force lawsuit, and as soon as the attorneys discovered that we have Lexipol, they said, ‘We won’t have an issue there.’ Our policies were never in question.”

Chief Deputy Klint Anderson
Weber County (UT) Sheriff's Office

“We spent a considerable amount of money and effort trying to develop and maintain comprehensive and legally based policies and procedures. Lexipol has relieved us of that burden and provided us with a policy system that we have great confidence in and that we can tailor to suit our particular goals and community standards.”

Sgt. Bryan Ward
Cumberland County (PA) Sheriff's Office

"Calling Lexipol an insurance policy doesn’t do it justice, because it doesn’t capture the enormous power that partnering with Lexipol provides.”

Chief Deputy Ray Saylo
Carson City (NV) Sheriff's Office

"It’s a huge priority of this administration to teach policy to our sergeants, and Lexipol’s Daily Training Bulletins help us do that. We are constantly drilling into them that policy will protect them as an individual officer. If they ensure that their people are following policy, even if they’re sued, they will be OK.”

Major Jeff Fox
Vigo County (IN) Sheriff's Office

“Lexipol’s Implementation Services program was key to getting our manuals off the shelf. If it weren’t for that, we wouldn’t be implemented today. Departments should recognize their limitations and realize that they likely don’t have the resources to do it on their own. Implementation Services is key to getting it done.”

Close [X]
Close [X]
Close [X]
Close [X]