Above and Beyond Graham v. Connor? Examining PERF’s Second Guiding Principle

by | July 8, 2016

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. Read the first 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—concerns that are confirmed by news articles about police departments rushing to adopt the principles, and changing policies in the process. Nevertheless, 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 second Guiding Principle, which deals with use of force.

PERF Guiding Principle #2

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.

Agencies should not interpret this principle to mean they should amend their force policy to include a higher standard than the Graham v. Connor objective reasonableness standard. This was not PERF’s intent, and it would not be advisable to do so. However, such an interpretation is possible if you look closely at the first version of the report, released in January: “Departments should adopt policies that hold themselves to a higher standard than the legal requirements of Graham v. Connor.” This could be read to mean that agency use of force policies should go beyond the legal standard of objective reasonableness outlined in Graham v. Connor. In its March report, PERF clarified its intent and revised the wording, as indicated above.

Why was the clarification necessary? A use of force policy should be based on the law. Graham v. Connor and objective reasonableness apply to that moment in time during an incident when an officer decides to use physical force or deadly physical force. That is the law and we should not create a separate standard in our own policies. My concern is that administrators will fail to recognize that the use of force decision is legally different from tactical decisions made by officers before a use of force incident. Objective reasonableness is derived from the reality that human beings (officers) have to make split-second, life-or-death decisions based on what is known to them at that moment in time. Graham focuses on a fraction of a timeline in a law enforcement intervention event. The manner in which this principle is written may allow for inappropriate changes to policy pertaining to the legal standards for use of force, when the focus really needs to be on the tactics and decision making leading up to the need and/or decision to use force.

This is not just a matter of semantics. It is critical that administrators understand the impact of any changes they make. Consider a simple analogy: I was driving down a city street with cars parked on both sides of the road. Out of my peripheral vision I noticed a blur of rapid motion heading toward the roadway and directly into the path of my vehicle. As happens in human beings when they have limited time to respond to a perceived threat or problem, my mid-brain took over and my foot immediately depressed the brake pedal. This occurred without conscious or cognitive thought processes at all. Instead, the emergency response that has developed in our species to help us survive immediate threats activated and responded. Our mid-brain essentially processes the visual stimuli and places it quickly in context, which in this setting was that it could be a child, an animal, or something that could damage the vehicle and potentially cause an accident. As a result, I slammed on the brakes without “thinking” about it. And then I watched the plastic shopping bag blow across the road in front of me, unharmed by my vehicle.

My mid-brain was obviously wrong, but it did exactly what it is programmed to do. Under the perceived circumstances and a lifetime of learning and defensive driving courses, the response was objectively reasonable. What if I was speeding at the time? Would that change the fact that—at the precise moment in time that my brain perceived the movement and processed the possible risks—the response was objectively reasonable? The answer is no.

Although this is merely an analogy and not a use of force situation, it reflects precisely how the rule of Graham v. Connor is applied. This is made clear in the U.S. Supreme Court language of the case, quoted in the PERF report on page 35:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.… The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

Now let’s look at a real law enforcement example that we, as a profession, could be handling better. I, as a police officer, rush into a house that contains a suicidal person armed with a knife, knowing there is no one else at risk in the residence. As I enter the living room, the person charges at me with the knife and I fire my service weapon in response, hitting the subject and injuring or killing him. At the precise moment in time that I decided to use deadly physical force, was it reasonable for me believe I was at risk of serious physical injury or death? The answer is yes.

But should I have rushed in like that? The answer is no. This should be a violation of your crisis response or other policy and if it is not, then you need to follow PERF’s suggestion and revise your policy and your training. But here is the critical point all administrators need to understand: The rule of Graham v. Connor has nothing to do with that decision to enter the house because it only applies to the moment in time that an officer perceives he/she is at risk of serious physical injury or death and uses force.

Agencies are encouraged to read the full principle carefully and should not interpret Guiding Principle #2 as encouraging them to change their use of force policies to require a higher legal standard than Graham. Such a policy language change could be as simple as prohibiting an officer from using deadly physical force against a person unless that person is an actual threat, instead of a perceived one. Such a change is not appropriate and will not solve the real problem, just as the state cannot effectively pass a law prohibiting a driver from slamming on his/her brakes unless there is an actual child, animal or property damage risk, instead of just a perceived one. Such is the nature of the rule of objective reasonableness and Graham v. Connor.

We absolutely should review how we handle certain situations and change tactics, training and policy where appropriate. As PERF points out, the goal of such a process is to teach our officers not to put themselves so quickly into situations where they must make split-second decisions under high-stress conditions, when they are more susceptible to mistakes. We need to attempt to eliminate situations involving officer-created jeopardy as much as possible, but there will always be instances when an officer may, in good faith, misread, misunderstand or otherwise walk into a situation and face an imminent life-or-death decision. Officers are not perfect and the law acknowledges this, and so should our use of force policies. This does not mean, however, that agencies should not review and critique the tactics and decisions used by an officer, compare them to other operational policies (e.g., crisis response, barricaded subject) and potentially use the incident as a learning event for the entire agency. Such a review may also appropriately result in discipline for violation of policy and training.

Understanding it this way, Lexipol’s policies are consistent with the issues raised by PERF in this area. Lexipol’s Use of Force Policy is, appropriately, based upon current legal precedent, including Graham v. Connor. The policy lists the various factors that law enforcement officers need to be aware of in determining the reasonableness of force, deadly force or otherwise. Lexipol policy provides guidance on the duty to intercede to prevent another’s use of unreasonable force and medical aid. Additional guidance can be found in the following Lexipol policies:

  • Control Devices
  • Handcuffing and Restraints
  • Conducted Energy Devices
  • Crisis Response Unit
  • Hostage and Barricade Incidents
  • Crisis Intervention Incidents
  • Vehicle Pursuits
  • Foot Pursuits
  • Operations Planning and Deconfliction
  • Rapid Response and Deployment

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. The goal of drafting policy content, and the ongoing training to reinforce it, is to minimize the frequency that law enforcement officers will need to make split-second use of force decisions that will be governed by the concepts of Graham v. Connor.

PERF points out that Graham does not, within the content of the decision, provide detailed guidance to officers or trainers. In the years since the case was decided, however, there have been countless decisions by the U.S. Supreme Court, federal circuit courts of appeals, district courts and state courts that provide fact patterns that can be used to train objective reasonableness. Many of those cases also provide training material on the tactics and decisions made by the officers leading up to the use of force. Trainers and administrators, however, must understand the difference between the two. In fact, the Supreme Court of the United States and two U.S. Courts of Appeals have recently decided cases that provide just such review of the Graham factors in the context of the use of force on emotionally disturbed persons. Those cases are discussed in a Lexipol webinar dealing with the application of Priority of Life. To view a recording of the webinar, click 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 15 years in that capacity. Mike is also a 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.

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