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.
But 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 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.