The Legitimacy Test: A More Practical Approach to De-Escalation

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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. Read the first article here and the second article here. 

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) released the 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.”

This series of articles reflects my concerns about how some of the principles may be misinterpreted and haphazardly adopted. The PERF 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 third and fourth Guiding Principles, which focus on proportional use of force and de-escalation. While these concepts are important and need to be considered by law enforcement agencies, agencies will need to further develop the third and fourth Guiding Principles before they can effectively implement them.

PERF Guiding Principle 3 and 4
Police use of force must meet the test of proportionality.
Adopt de-escalation as formal agency policy.

Proportionality and de-escalation are both critical pieces of the larger concepts of use of force and police legitimacy. In practice, however, they are both very difficult to define. On page 38 of the report, PERF explains the test of proportionality:
In assessing whether a response is proportional to the threat being faced, officers should consider the following:
• Am I using only the level of force necessary to mitigate the threat and safely achieve a lawful objective?
• Is there another, less injurious option available that will allow me to achieve the same objective as effectively and safely?
Will my actions be viewed as appropriate—by my agency and by the general public—given the severity of the threat and totality of the circumstances? [emphasis added]

The discussion immediately following on pages 38-39 further explains:
How members of the public will react to an officer’s use of force is one part of the equation on proportionality. However, this consideration should be approached from a broad perspective and should take place before an officer reaches the instant where a use of force may be necessary. The concept of proportionality does not mean that officers, at the very moment they have determined that a particular use of force is necessary and appropriate to mitigate a threat, should stop and consider how their actions will be viewed by others. Rather, officers should begin considering what might be appropriate and proportional as they approach an incident, and they should keep this consideration in their minds as they are assessing the situation and deciding how to respond. [emphasis in original]

On page 39 the authors state, “Under the concept of proportionality, officers would recognize that even though they might be legally justified in using force as the situation escalates, given the minor nature of the underlying event, a more appropriate and proportional response would be to step back and work toward de-escalation.” This last statement, which indicates that the “minor nature” should be considered as a situation escalates, can be interpreted as being in conflict with the prior content, which indicates that perception of others should not be considered at the time force becomes necessary. This highlights the difficulty of actually implementing proportionality and de-escalation.

Let’s look at a predictable situation. A particular traffic corridor has been the scene of a number of personal injury and fatal accidents, with the primary cause being the pedestrians crossing the roadway without using a crosswalk or paying proper attention. Police officials meet with community leaders to discuss the problem, and a plan is developed that includes directed enforcement. Officers are instructed that they may use discretion with cooperative violators and either issue a warning or an appearance ticket at the scene.

Officers approach a violator who blatantly walked in front of a vehicle, causing the driver to slam on his brakes. The violator is immediately abusive and uncooperative with the officers, refusing any requests to provide his name or any other information, making it impossible to issue an appearance ticket at the scene. The officers then decide to lawfully make a custodial arrest for this “minor offense” after repeatedly explaining to the violator that he could leave with an appearance ticket. By now other people have gathered around and begin recording the incident. Backing off and obtaining a warrant in order to make the arrest at a future time, when it may not be as volatile, is not possible since the officers do not know who the violator is. As the officers attempt to handcuff him, the violator starts to comply but then sees the gathering people and suddenly begins to violently resist, screaming that he is being beaten by the police.

Now let’s consider this situation against the concepts of proportionality and de-escalation. If the officers use force to arrest the violator, it could easily be seen as being disproportionate—you can just hear the media asking why a TASER or other control device or technique is necessary on someone charged with jaywalking. But de-escalation is equally problematic: Backing away and losing whatever control the officers may have over the violator and the incident scene may actually place the officers or the public in jeopardy. Further, if they back away, are they ignoring the underlying need for the enforcement action (saving pedestrian lives)? Should only people who cooperate be issued tickets?

This example illustrates the difficulty of making de-escalation a “formal agency policy.” How will officers know when it should or should not apply? We do not want our officers to hesitate when facing a threat because they are not sure what is expected of them.

Scott v. Harris
The Supreme Court’s decision in Scott v. Harris (550 U.S. 372 (2007)) is pertinent to this overall discussion. Deputy Scott terminated a high-speed pursuit of Victor Harris by bumping the rear of Harris’ vehicle with his push bumper. Harris lost control and crashed, suffering injuries that left him a quadriplegic. He then filed suit, claiming the force used was excessive under the Fourth Amendment. Justice Scalia wrote the majority opinion and identified the issue in the case was whether Scott’s actions were objectively reasonable. To do this, the court needed to weigh the nature of Scott’s actions and the governmental interests at stake against Harris’ Fourth Amendment interests. In ultimately holding that Scott’s actions were objective reasonable, Justice Scalia made several points that are relevant to the concepts of proportionality and de-escalation.

First, Justice Scalia balanced the risk to numerous innocent bystanders against the risk of injuring or killing one person. Scalia pointed out that it is appropriate in this process to take into consideration the relative culpability of the persons at risk, and emphasized it was Harris who intentionally put himself and the public at risk by his reckless behavior. Second, Justice Scalia addressed the question of whether ceasing the pursuit would have been a better way to protect the innocent public. Simply ending the pursuit, however, would not have guaranteed that Harris would have ceased his reckless driving, whereas forcing him off the road was more certain to eliminate the risk. And the final point relevant to our discussion was the court’s resistance to set forth a rule that would force the police to let suspects get away simply because they drive so recklessly that they put the lives of innocent persons at risk. This, the court determined, would create too much incentive for suspects to flee the police.

For our purposes, the Scott decision can be broken down into three key elements:
1. Who is at risk?
2. Who is creating that risk (e.g., who is culpable)?
3. Is there a need to act now (no discretionary time) against the person creating the risk to protect those who are less culpable?

Now let’s apply the Scott reasoning to our jaywalking scenario. Who is at risk when the violator starts to violently resist? The officers. Who is culpable? The violator. He could have received a warning, or at most an appearance ticket, and would have been on his way. He chose to be uncooperative and then chose to put both himself and the officers at risk by resisting a lawful arrest. Was disengaging from the violator a safe and viable option once they are already physically attempting to bring him under control? No, since he would then be free to assault the officers. In both the Scott case and in the jaywalking example, it was not the “minor nature” (Harris was speeding) of the offense that led to the use of force by officers. In Scott, it was the far more serious behavior of driving recklessly and putting innocent persons at risk. In the jaywalking example, it was the act of violently resisting a lawful arrest, placing officers at risk. This is a perspective that is frequently lost on the public and the media.

The real key here, and what needs to be an essential component of any officer’s decision-making process in relation to enforcement and use of force, is the purpose of the initial encounter itself: Is the encounter lawful and for a legitimate (e.g., non-discriminatory) purpose? Legitimacy can be described as both legal and the right thing to do.

In the jaywalking example, all of the elements of legitimacy exist and to back away from a violent subject would potentially put the officers at risk. As in Scott, it could also give incentive to anyone in such a situation to refuse to provide information and to resist any attempt at arrest. When documenting the jaywalking arrest and subsequent use of force, it will be critical for the officers to not only describe the initial offense, but to also particularly describe the specifics of the suspect’s resistive behavior. The officer has a role, through thorough documentation and consistent testimony, to ensure the objective reasonableness analysis will be focused on the true reason for the need for application of force, and not be hidden by the “minor nature” of the reason for the contact. Proportionality, as it is applied in a Fourth Amendment objective reasonableness review, needs to be focused on the true risk the officer is responding to, which in both Scott and the jaywalking example, is the behavior after the “minor” offense. It is up to the officer to clearly articulate this.

If the enforcement purpose passes the test of legitimacy, then the resulting scenario will be driven, to a large extent, by the violator. Yes, an officer must take the time to calmly speak with such an uncooperative person, explain the purpose of the encounter and what the officer’s intent is (in this case, to issue an appearance ticket), and make it clear to the person that the decision is theirs to make. In use of force training, this would be considered “transferring the force decision” to the person.

Therefore, agencies wishing to embrace the PERF Guiding Principles will need to include a discussion of legitimacy. Legitimacy of purpose can support legitimacy of specific police actions, even though those actions may appear in isolation to be excessive.

Policy Implications
All possible scenarios must be carefully thought through before administrators make policy changes or trainers develop lesson plans. Policy and training must clearly reflect what is intended. Reality Based Training (RBT) scenarios must be carefully developed to include both types of situations—when discretionary time exists and when it does not. A discussion of Priority of Life should occur in every post-RBT scenario critique. Many of the police videos that have gone viral involve officers who are attempting to enforce a “minor offense” that is legitimate and, if the person cooperated as the vast majority do, would have resulted in the violator going on his/her way with minimal delay. Yes, officers need to take these situations slowly and not make decisions out of anger or frustration. But ultimately, legitimate enforcement actions must be completed and officers need to clearly know what is expected of them.

Lexipol’s policies are again consistent with the issues raised by PERF in the areas of proportionality and de-escalation. Lexipol’s Use of Force Policy is, appropriately, based upon current legal precedent, including Graham v. Connor and Scott v. Harris. Proportionality and de-escalation are taken into consideration by the factors listed in the Use of Force Policy that officers need to consider in determining the reasonableness of force. The Conducted Energy Device Policy requires training on de-escalation techniques in addition to providing guidance to officers on when such devices should or should not be used. The Crisis Intervention Incident Policy provides specific guidance on de-escalation and strategies for dealing with a person in crisis. The Homeless Persons Policy requires that any enforcement action must be based upon a reasonable and articulable suspicion of criminal activity. The policy also encourages officers to consider long-term alternatives instead of enforcement of nonviolent minor offenses. Additional relevant guidance can be found in the following Lexipol policies:

• Control Devices
• Handcuffing and Restraints
• Use of Force Review Boards
• Search and Seizure
• Contacts and Temporary Detentions
• Public Recording of Law Enforcement Activity
• Operations Planning and Deconfliction
• Civil Commitments
• Civil Disputes

These policies are representative of Lexipol intent when drafting policy: making the content current and defensible. In addition, Lexipol’s Daily Training Bulletins (DTBs) continuously reinforce policy content, requiring law enforcement officers to apply policies to scenarios. In sum, Lexipol content is designed to require law enforcement officers to, with whatever time may be available, think through a situation, rather than rushing into it. Such policies can achieve the intent of the PERF Guiding Principles without requiring the adoption of a potentially confusing or inadequate policy on de-escalation.

For more on the topics discussed in this article, watch these on-demand webinars:
Still Clinging to a Use of Force Continuum or Labeling Force Levels? You’re at Risk!
Priority of Life: A Model for Improving Officer Safety and Reducing Risk


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.