Use of Force -- Myths and Realities Part I (podcast transcript)
Bostain: Hi. I’m John Bostain. I’m the Senior Instructor for Use of Force for basic training programs at the Federal Law Enforcement Training Center in Brunswick, Georgia; also known as the FLETC. With me today is Tim Miller, a Branch Chief in our Legal Division here at FLETC. Tim, can you tell us a little bit about yourself?
Miller: Sure. I’m Tim Miller. I’m a Branch Chief at the Legal Division. I’m in charge of the basic legal training for the students coming through the FLETC.
Bostain: Well Tim could you tell us a little bit about FLETC?
Miller: Yeah, the Federal Law Enforcement Training Center trains federal law enforcement officers and agents from more than 80 different agencies. Some of the more common agencies that you’ve heard of are Alcohol Tobacco Firearms and Explosives, the Naval Criminal Investigative Service; of course it has its own TV show. Part of the training includes Use of Force. We teach students when a police officer can use force, and how much force is authorized.
Bostain: Ok, well, this is going to be the first installment of a multi-part series concerning the myths of Use of Force. Today we’re going to discuss the issue of using the “minimal amount of force” during a force encounter. Tim, throughout my entire law enforcement career, I have continually heard that officers should use the minimal amount of force necessary to seize a suspect. Are you saying that’s a myth?
Miller: I sure am; but let’s first define a seizure for our audience. A seizure is a government termination of movement through a means intentionally applied. Now I know that sounds awful legalistic but it’s really pretty simple. If a cop yells at a suspect, “stop in the name of the law,” and the suspect stops, the suspect is seized. If the cop wrestles the suspect to the ground, the suspect is seized. If the cop shoots the suspect, the suspect is seized. Those are all government terminations of movement through a means intentionally applied. Now the phrase you used is this. The minimal amount of force has to be used to affect a seizure. That’s been in agency policies for decades, but it’s not the law. A similar policy restriction is for the officers to use the least intrusive means to affect an arrest. Those again are all admirable goals. They are policy restrictions however but they sometimes represent unrealistic almost wishful ideals. Most importantly, it’s not the legal standard for Use of Force in the United States.
Bostain: You’re saying that’s not the legal standard?
Miller: No. The Fourth Amendment to the Constitution is interpreted by the Supreme Court that sets the legal standard for Use of Force in the United States. All force must be objectively reasonable. Courts examine the totality of the facts and circumstances faced by the officer to determine whether the force he or she used was -- and I’ll use these two words again and again -- objectively reasonable.
Bostain: Well, Tim, where do we get that standard from?
Miller: The United States Supreme Court, specifically the Court’s interpretation of the Fourth Amendment in Graham v. Connor. Graham v. Connor was a civil suit that went all of the way up to the Supreme Court. Mr. Graham sued Officer Connor. It was Graham suing Officer Connor, Graham alleged that Connor used excessive force to effect a seizure. In essence we’ve got Graham v. Connor. In short the Court said that the correct standard to judge Officer Connor is objective reasonableness. The Supreme Court sent that case back down to the trial court and told the trial court to answer this question, “was the force Connor used to seize Mr. Graham objectively reasonable based on the totality of the facts and circumstances at the time?”
Bostain: Well, hmm, what’s that exactly mean?
Miller: Well, when a plaintiff sues a law enforcement officer for excessive use of force, the courts will examine the totality of the facts and circumstances confronting the officer at the time without regards to the officer’s underlying intent or motivation. Now let me stop briefly to explain what I mean by underlying intent or motivation. Simply stated, the best intentions in the world will not save an officer. An officer might shoot someone because he honestly believes the person shot was Osama Bin Laden, but again the intentions of the cop are not relevant. The court will examine all the facts and ask what facts did the officer have to believe the person shot was in fact Osama Bin Laden and that he posed a threat of serious bodily harm to the officer or others. The court should consider the facts the officer was aware of at the time he or she applied force. In Graham the court specifically mentioned things such as the severity of the crime, whether the suspect posed a threat, an immediate threat to the safety of the officer or others, whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Those are all important factors to determine reasonableness of Use of Force. There are other factors too. The court will also consider whether the suspect has a known violent history, the physical size, age and condition of the suspect, the type of crime involved; things such as that. Whether the suspect is under the influence of alcohol or drugs is a big factor. I bet you know from experience, John, that most people that assault police officers are under the influence of drugs or alcohol.
Bostain: Yeah, I’ve experienced that first hand. But Tim, you say the legal standard is objective reasonableness. Some will just say, “this is just semantics.” Aren’t objective reasonableness and minimal force essentially the same thing?
Miller: Not at all. And, it’s a good thing you bring this up because confusion about objective reasonableness and what it really means can cause officers to unnecessarily hesitate during a critical incident when they have to use force. For those who think the issue of minimal force versus reasonable force is semantics, consider this. According to the Merriam-Webster’s Dictionary, reasonable can be defined as “being in accordance with reason; not extreme or excessive,” which is the same way the courts define reasonableness. Minimal however, is defined as “relating to or being a minimum; the least possible; barely adequate; very small or slight.”
Bostain: You make a pretty good point there.
Miller: Well, think about it. Do we really want officers to believe that they have to use the least amount of force necessary to seize a suspect? Now, let’s assume the officer is facing an armed assailant with a knife. I can only imagine what might be going through an officer’s head when he or she faces a guy like that with a knife. Well, will a verbal warning to put the knife -- will a verbal warning “put the knife down,” will that work? If that won’t work, can I use physical force short of deadly force? Physical force will not work. Can I use an intermediate weapon, like an intermediate weapon like pepper spray or baton? Whether intended or not, an agency policy that tells officers to use the minimal amount of force necessary implies the officer should use little force. It also encourages a trial and error process, where officers are encouraged to try one “minimal” option, only to have it fail, then try the next “minimal” option to have it also fail. Officers who have experienced these situations first hand know that continually trying to employ minimal force response options almost always results in a situation that quickly, quickly escalates out of control. The end result is the officer ends up using more force, and the likelihood of injury to both the suspect and the officers is really increased. The United States Supreme Court set the standard for Use of Force “objective reasonableness,” John, based on the totality of the facts and circumstances confronting the officer at the time of the seizure, was the option employed reasonable, not minimal. If they wanted the standard to be minimal force, I think the Supreme Court would have said so.
Bostain: Okay, well that makes sense. You know this reminds me of a time I heard an analogy at a training conference some years ago about this exact issue, about minimal force versus objective reasonableness. Tell me if you agree with this analogy.
I was listening to Bill Lewinski, he’s a world renowned Use of Force expert from the Force Science Research Center. He was teaching a class and this is what he said, he said “imagine if you were to return home from work today to find your house burning to the ground. Hey, fortunately for you, the fire department is already on scene, they are there with their hoses and they are getting ready to put the fire out. Now, ask yourself this question, ‘Do I want that firefighter to try and determine the minimal amount of water it’s going to take to put that fire out? Or, would I rather -- based on his training and experience -- would I want him to determine the reasonable amount of water it will take to put the fire out?’ Some argue that it’s the same thing. But as I listen to Dr. Lewinski he went on to say, “imagine that firefighter determines that the minimum amount of water that it’s going to take to extinguish the fire is 400 gallons. So the firefighter dials up 400 gallons on the truck, he starts to extinguish the fire. After 400 gallons though, the water runs out, but it wasn’t enough to put the fire out. So, as the firefighter scrambles around, he’s trying to get more water, the fire starts to actually get bigger and more out of control, and now it takes even more water to extinguish the flames. However, if the firefighter had just used a reasonable amount of water in the first place, the fire would have been under control sooner, with less damage and less water used.” Do you think that’s a fair analogy?
Miller: I think that’s it. The analogy correlates well with the use of force incidents, the early application of a reasonable amount of force will result in less force having to be used; less injury to suspects, less injury to officers.
Bostain: Okay. Alright, well, then let’s talk about these other parts that we hear a lot about. So Tim, the issue of least intrusive means? Surely if an officer has options available to him during a potential deadly force encounter, he should at least try those other options first, shouldn’t he?
Miller: Well I tell you, using the least intrusive amount of force sounds to me a lot like using the minimal amount of force. Using the least intrusive means may be found in agency policies, but again the idea has been repeatedly rejected by the courts as not being “the legal standard.”
Bostain: Oh really, hmm. Well, do you have any examples of that?
Miller: I do. Now, sure there are plenty of examples really. One example is a case called Scott v. Henrich, a 1994 case from the 9th Circuit, I think. In this case police officers responded to a shots fired call. Witnesses directed them to the apartment where the shooter was. The police officers banged and kicked the door, ordering the shooter to open up. The shooter fumbled with the door latch, opened the door, and pointed a gun at the officers. One of the officers shot at the shooter, missing him. The other officer, thinking that the shooter had actually fired, shot four times at the shooter, suspect, and killed him. Now, the widow of the deceased shooter filed a civil suit, civil lawsuit against the officers, alleging that the officers used excessive force under the Fourth Amendment. The widow tried to argue that the officer should’ve used alternative measures before approaching and knocking on the door where the shooter was located.
Bostain: So did the courts say the officers should have tried something different before resorting to deadly force?
Miller: No, it was quite the opposite. The court said that requiring officers to find and choose the least intrusive alternative would really require them to exercise, and I like this language, “superhuman judgment.” In the heat of battle with lives potentially in the balance, officers are not required to select the least intrusive option available to them. Instead the law, again, will hold them to those two words, a reasonable, reasonable option. Let’s look at it, look at this another way. We’ve said a couple of times now that officers have to use force that’s objectively reasonable based on the totality of the facts and circumstances confronting the officer at the time of the seizure, was the force objectively reasonable. That’s the test. Holding the officer to the least intrusive or minimal amount of force is a subjective standard. It’s somebody else’s decision who wasn’t there that this is what you should have done. Imposing such a requirement would inevitably induce hesitation by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second guessing of police decisions made under stress and subject them to exigencies of the moment.
Bostain: Wow, so the court in this case refused to require officers to use, or even determine, the “least intrusive means,” fearing that such a rule would breed hesitation on the part of the officers.
Miller: That’s right. And the officer, the court, I’m sorry, the court went on to say that officers need only to avail themselves of the least intrusive means of responding to an exigent circumstance, they do not have to avail themselves of the least intrusive means of responding to an exigent situation; only a reasonable one.
Bostain: Wow, that’s a great example of the courts dispelling the myth that officers are required to use the least amount of force to effect an arrest. Thank you for your insight on this issue Tim. I hope this information gets some officers thinking about their legal understanding when it comes to Use of Force. The way you’ve described it, officers have more leeway than most of them probably realize. As long as they stay within that wide lane of travel established by the U.S. Supreme Court, objective reasonableness, their Use of Force actions are going to be lawful.
Miller: That’s exactly right.
Bostain: Thanks, Tim. I appreciate your insight on these issues.
Miller: My pleasure John.
Bostain: We will be back with some more myths and reality for Use of Force in the near future. For those of you who want to hear other FLETC Podcasts, you can find them on the internet at www.fletc.gov/training/programs/legal-division/podcasts.
Miller: See ya, John.
Bostain: See ya, Tim.