Use of Force Continuum (podcast transcript)
Solari: Hi. I’m Jenna Solari. With me today is John Bostain. John and I are instructors in the Enforcement Operations Division of the Federal Law Enforcement Training Center in Brunswick, Georgia; otherwise known as the FLETC. John, can you tell us a little bit about yourself?
Bostain: Sure. Before I came to FLETC, I spent almost eight years as a police officer in Hampton, Virginia. I served as uniform patrol officer, police academy instructor, detective and SWAT team member. Since joining the FLETC staff five and a half years ago, I’ve been an instructor in both the Physical Techniques Division and Enforcement Operations Division. I’m currently the Senior Instructor for Use of Force for FLETC basic programs.
Solari: Well, could you tell us a little about the FLETC?
Bostain: The Federal Law Enforcement Training Center trains federal law enforcement officers and agents from more than 80 different agencies. Part of the training includes Use of Force. We teach students when a police officer can use force, and how much force is authorized.
Solari: Well, I understand you’re here today to specifically address Use of Force continuums as a training tool. What is a Use of Force continuum?
Bostain: The term Use of Force continuum is one name for a visual model that depicts progressive escalation and de-escalation of force based on a subject’s actions. They have been a mainstay in law enforcement for many years. They are also known as Use of Force Models, Use of Force Ladders and Subject to Control Matrices.
Solari: John, is there one visual model or continuum that is used by every law enforcement agency?
Bostain: No, not here in the United States. Canada uses a circular model called the National Use of Force Framework in all of their agencies, but here in the United States it’s much different. Continuums vary from state to state and agency to agency. They come in a number of different forms. Some look like time lines, some look like pyramids and some even look like doughnuts.
Solari: Are Use of Force Models an effective tool for training officers?
Bostain: You know, I think we might be getting a little ahead of ourselves here. Before we can start a discussion about Use of Force Models and continuums, let’s first address the legal standard for use of force by law enforcement officers in the United States.
Solari: Ok, great, who sets that legal standard?
Bostain: It’s set by the United States Supreme Court, and its interpretation of the Fourth Amendment.
Solari: Well, then, has the Supreme Court said when law enforcement officers are allowed to use force?
Bostain: Yes, they have. The Supreme Court has expressly stated the right to make an arrest or an investigatory stop necessarily carries with it the right to use some level of physical coercion of threat thereof to affect it. In other words, if the officer has the authority to conduct a seizure, he has the authority to use force or the threat of force to accomplish that mission.
Solari: So then we know when an officer can use force. Has the Supreme Court told us how much force a police officer can use to control a suspect?
Bostain: That’s an excellent question, Jenna. According to the Court, in a 1989 case named Graham v. Connor, police officers may use the amount of force that is objectively reasonable to control subjects during a lawful seizure. Objective reasonableness is based upon the totality of circumstances known to the officer at the moment force was used.
Solari: What does that mean, exactly?
Bostain: The Court will consider any objective fact the officer was aware of at the time he applied force. It’s up to the officer of course, to articulate those facts to the Court. If another reasonable officer could have taken the same action based on those facts, then the use of force is lawful. Objective facts are those that can observed or measured by others, like the time of day, environmental surroundings, number of officers versus the number of suspects. Things like that. Objective facts don’t include things that are solely in the officer’s mind, such as a dislike of the suspect, or fear or nervousness felt by the officer. Those are subjective facts, and they don’t carry any legal weight when it comes to use of force.
Solari: Alright, so, let’s say an officer has an arrest warrant for Fred Ferkle for domestic assault and battery. What’s the right way, according to the Fourth Amendment, for that officer to approach Fred Ferkle and execute the warrant?
Bostain: Well Jenna, there’s no single quote unquote right way to handle it. Here’s what I mean. Let’s say Fred Ferkle has a known history of resisting arrest and assaults on a police officer. Let’s also say that our friend Fred is about, oh I don’t know, 6’2” and weighs about 225 lbs. Let’s also say the officer’s making the arrest by himself, at approximately 10:00 at night. When he approaches Fred’s house, he sees Fred out on his front yard. The officer identifies himself as a police officer and he says, “Fred, you’re under arrest.” Fred responds by turning towards the officer, pointing his finger at him and saying, “screw you, I’m not going to jail tonight.” Now, one officer, maybe one that’s highly experienced with martial arts, may decide to control Fred using an empty hand control technique. Another officer, based on the exact same information as the first, may decide to spray Fred with OC. Yet another officer, maybe one much smaller in stature than Fred, may decide to use an electronic control device such as a taser. And yet another officer may handle this exact situation by using an extendible baton. That means there may be a whole range of reasonable force options available to the officer in a use of force situation. There is not a single correct answer that can be relied upon each time.
Solari: But, does the example we just discussed, all those options that you laid out for us, do they all conform to the Supreme Court case law?
Bostain: Absolutely. The Court has acknowledged that the use of force decisions are made under circumstances that are tense, uncertain, and rapidly evolving. The Court doesn’t expect the officer to be perfect. All the officer has to do is be reasonable. There’s no pre-set solution to use of force situations. Every incident presents a unique set of facts. There’s just no way to anticipate them all.
Solari: Well, then the Use of Force continuums must say the same thing, right?
Bostain: Actually no. Use of Force continuums try to anticipate the suspect’s actions and equate them with a predetermined officer response.
Solari: Why? Is that required by the Fourth Amendment?
Bostain: No, quite the opposite. In Graham, the Supreme Court specifically stated that the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.
Solari: So, let me make sure I understand this, Use of Force continuums try to do what the Supreme Court said is impossible?
Bostain: Exactly. Again, most continuums are structured in a way that a specific subject action equates to a specific officer response, regardless of the totality of circumstances known to the officer. So, in the arrest warrant example we discussed earlier, a model might say the officer’s justified in using a hands-on control technique or OC spray, but not a baton or taser. That’s just not legally accurate. Even though the law says that all four of those responses could be reasonable, every model I’ve ever seen contradicts that. That’s because it’s impossible for a model to account for things like known violent history of the suspect; duration of the action; size; age; condition of the officer and suspect; and other facts that may make up the totality of circumstances.
Solari: Other than the apparent conflict with the Supreme Court’s interpretation of the Fourth Amendment, are there any other concerns about Use of Force continuums?
Bostain: Yeah. Each continuum has its own general categories of subject actions. They include phrases such as passive resistance, verbal non-compliance, active resistance, assaultive, grievous bodily harm, you get the point. The problem is that there is no universal agreement on how to define each of these terms. Active resistance to one officer may appear passive to another, and may even appear assaultive to another. These types of inconsistencies may cause an officer to unnecessarily hesitate as he tries to pigeonhole a subject’s actions into a specific definition on a Use of Force continuum. Use of Force continuums are a cognitive tool, and they’re not very useful in the rapidly evolving dynamics of a critical incident.
Solari: Well, has anybody done any studies to determine how clearly an officer can think during a critical incident? I mean, is it difficult to use a cognitive tool while trying to control a suspect?
Bostain: That’s a good question. There has been a great deal of research into what is called the biomechanics of lethal force. Much of this research has been conducted by the Force Science Research Center located at Minnesota State University in Mankato, Minnesota. According to the most current research conducted by Force Science, things happen so quickly in a use of force incident that a subject can take actions against an officer much quicker than the officer can react. Utilizing a Use of Force continuum as a cognitive tool takes additional time -- time an officer just doesn’t have in a use of force incident, which compounds the problem.
Solari: Well that’s interesting. What other issues have come up regarding Use of Force Models?
Bostain: Well, there’re a number of other concerns. Most models hold to the principle of using the minimal amount of force necessary to effect the law enforcement objective.
Solari: Well, minimal force, that doesn’t sound so bad.
Bostain: The problem with adhering to that theory is that it encourages the officer to go through a trial and error process of deciding what force response option is the minimum, but is still going to be effective. Officers may try a minimal response hoping it’s going to work. When that fails, they try the next minimal response and hope it works. When that one fails too, the situation has deteriorated to the point where now it takes a great amount of force to control the subject. If the officer was just allowed to go and follow the guidance of the Supreme Court in Graham, they could go directly to the force response option they believe is reasonable based on the totality of circumstances.
Solari: Well, is there a benefit to going straight to the most effective reasonable response, rather than just trying to use minimal force?
Bostain: Definitely. The officer will control the situation sooner, which leads to fewer injuries to the suspect, fewer injuries to the officer, and generally less overall force used.
Solari: Well, John, the way you’ve described it, the Fourth Amendment gives officers a pretty wide lane of travel when it comes to use of force. It seems like that as long as the officer can articulate objective facts that make his use of force reasonable, then he’s satisfied the Fourth Amendment. That’s all the Courts require, right?
Bostain: That’s right. It’s a very easy standard to understand and apply.
Solari: So, has there been any attempt to make Use of Force Models as easy to apply as the Fourth Amendment standard?
Bostain: Um, sort of, but it hasn’t been effective. Most models in use around the country utilize something called the One Plus Rule. It’s been said in use of force training for years that the officer should be one level higher than the suspect on the Use of Force continuum in order to control the suspect. The confusing part about that is that the officer first has to decide what level the suspect is at, and then try to figure out what one level above that is. That might work well in a classroom environment, but in the tense, uncertain and rapidly evolving circumstances of a use of force incident, it’s just not practical.
Solari: But shouldn’t the model already say what the right response is? Isn’t that the whole point?
Bostain: Yes, and that’s how we know models don’t work. When you have to create an extra rule just to make the model make sense, something’s wrong.
Solari: Let me make sure I understand what you’re saying. First, Use of Force Models actually conflict with Supreme Court case law?
Bostain: Yeah. They impose more restrictions on officers than the Fourth Amendment requires.
Solari: Well okay, and second, as you explained it, the terms used in Use of Force Models are usually pretty ambiguous.
Bostain: Right. What one officer considers to be active resistance might be interpreted as assaultive by another reasonable officer. That puts the two officers in different places on the model, even though they’re facing the exact same situation.
Solari: Well I can imagine the effect of that confusion is to cause both officers to hesitate.
Bostain: That’s right. Officers who should be taking control of the suspect before the situation escalates are too busy trying to figure out where they fall on a Use of Force Model, and what the minimal force is under those circumstances.
Solari: So John, as a former officer and a current law enforcement trainer, what do you recommend we do with all the Use of Force Models and continuums that are out there?
Bostain: Jenna, I get asked that question all of the time. In short, I think we should do away with them. That’s what we’ve done here at FLETC. We have replaced the model with more legal training, which focuses on the Constitutional standard set forth by the United States Supreme Court. From the first week of training, FLETC students are exposed to Graham v. Connor and its requirements. After their initial legal training, the Constitutional standard is reinforced almost daily by our Firearms Division and Physical Techniques Division. The legal concepts are further reinforced through reality based training programs which include a use of force lab that focuses exclusively on use of force decision making skills. But, in my opinion, the most important thing we can do is focus on teaching students to articulate themselves in written reports that conform to the Constitutional standard. We have been conducting training like this for the past two years, and all of it has been without the use of a continuum.
Solari: Well now, I want to ask you a question that I imagine a lot of officers and agents out there have in mind, as they listen to you describe doing away with these models and continuums. Thinking about things like administrative consequences and litigation that might result after use of force incidents, how would officers justify a use of force if they can’t point to a model?
Bostain: Exactly the way the Supreme Court told them to in Graham. All they have to do is articulate the objective facts that made their application of force reasonable under the totality of circumstances. If the officer’s actions were a proportional response to the threat posed by the suspect, it’s reasonable. It’s really that simple.
Solari: Well, boil it down for us, what would be the benefits of throwing out all of the models and going strictly with the Constitutional standard?
Bostain: Well Jenna, for starters, one word – consistency. We have one legal standard for use of force in this country and that is objective reasonableness. By eliminating the dozens of different models and continuums, we can get the entire country on one sheet of music. That sheet of music is the one set forth by the United States Supreme Court. Secondly, officers can gain confidence in their ability to make use of force decisions, because they are armed with the knowledge to make force decisions based on objective facts rather than a subjective model. There will be less unnecessary hesitation by officers in the field, which should lead to the ability to control subjects sooner and with less force. As I said earlier, this also reduces the chances of the officer getting injured as well as reducing the chance of injury to the suspect. Lastly, it puts the officer and the agency in a better position to defend themselves from potential liability, because the officers will be acting in accordance with the Constitutional law, which will be the legal standard used in any future litigation.
Solari: Well John, I hope this information gets some agencies thinking about their Use of Force training. The way you’ve described it, phasing out models would result in nothing but positive change for law enforcement. Thanks a lot for that information.
Bostain: My pleasure Jenna.
Solari: For those of you who want to hear other FLETC PodCasts, you can find them on the internet at http://www.fletc.gov/training/programs/legal-division/podcasts.