Instilling Hesitancy

An officer shouldn’t have to contemplate whether or not their agency will support them if they do the right thing


Kevin R. Davis | Tuesday, July 3, 2012

Advising officers to approach dangerous locations and suspects cautiously is a wise recommendation. Waiting for backup is a sound tactical suggestion and advisement. Far too often officers overextend themselves in situations, handling the call themselves instead of waiting for back-up officers to arrive on scene to provide cover and additional sets of eyes, ears andgunsin a worst-case scenario. A supervisor who encourages the officers in his charge to slow down and arrive to the call alive vs. driving too fast and exposing themselves and the citizenry to risk is certainly a life-saving responsibility.

Yes, sometimes officers “Colonel Custer” it—that is, rush headlong into a problem and are up to their rumps in alligators before they know it and get hurt in the process. Certainly officers drive too fast, and in many cases, too recklessly and should be reminded that such actions are stupid and will be disciplined if continued. Such recommendations as exercising caution, calling for back-up and waiting until they get there and slow the heck down, are all sound advice for supervisors to reinforce to their troops.
 
But in this case, we’re not talking about safe and wise admonishes to officers. We’re instead talking about instilling hesitancy in officers that may get them hurt or killed.
 
Back In the Old Days
I know you may hate hearing it but in the old days when force was necessary, most officers applied it quickly and aggressively. Yes, back in the day we didn’t have dashboard or cellphone cameras, or YouTube or news websites so that our encounters could be viewed by thousands of folks, second guessed ad nauseam and used by groups to further their political agenda. The reality: It’s hard enough being a LEO in this current politically driven climate, but do agencies, police administrations and supervisors have to make it worse?
 
The Law
The law on use of force is defined by the Supreme Court of the U. S. It states that officers aren’t restricted to the “least amount of force” nor “only that amount of force that is necessary.” The standard, as set forth in the Graham v. Connor decision, is that officers may use that amount of force that’s objectively reasonable in light of the totality of the circumstances. The Supreme Court didn’t say hesitate to use force or recklessly endanger yourself or call and wait for your supervisor to show up before you use force. In fact, the Supreme Court noted that officers must often use force in circumstances that are tense, uncertain and rapidly evolving.
 
Some of the use-of-force issues surrounding a situation include the severity of the crime and whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. The Supreme Court noted that these factors aren’t the only ones to be considered when evaluating use of force. The objective standard means that reasonableness isn’t determined based on the officer’s intent, motive or emotions (whether the officer was angry, for instance). According to the Court, the biggest factor is that “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 Court further stated, “With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.”
 
Howard Rahtz writes in Understanding Police Use of Force (2003, Criminal Justice Press), “Certainly, reasonable officers may disagree about the constitutional ‘reasonableness’ of police action in various cases. Thus, in expounding on the notion put forth in the Graham case that ‘objective reasonableness’ is not subject to precise definition, the court in Malley v. Briggs (1986) said: ‘The objective reasonableness test is met if officers of reasonable competence could disagree on the legality of the defendant’s action.’”
 
All of these factors and case law from the Supreme Court and lower court decisions since Graham have given officers a fair amount of leeway in use of force. Former F.B.I. Special Agent in charge and use-of-force legal expert John Hall has stated, “The case law dealing with the use of force by law enforcement is so deferential to the officers that when they learn of it they are shocked.”The legal standard for use of force isn’t that “officers may use that amount of force that looks good to me in hindsight in the comfort of my office and that will cause no political backlash or fall-out.”
 
Shouldn’t departmental brass know use of force law? Sadly, too many administrators and supervisors don’t know the legal parameters of use of force, despite the fact that this is a “core critical task” in law enforcement that they must know.
 
Even agencies with decent policies on use of force frequently violate their own guidelines. Why is it that an officer is disciplined for violating an agency policy, but the management doesn’t follow and nothing happens? If an agency isn’t going to follow their own policies, why bother to write them down? Save the trees and don’t waste the paper if that’s the case.
 
Why are agencies, administrators and supervisors so intent on restricting officers’ use of force? Why not give the officer all the tools he or she needs out on the street to not only survive, but win? Why attempt to micromanage officers’ use of force? Why fail to support officers when they use reasonable force? Why instill hesitancy in your officers about using force?
 
Improper Focus
Police liability expert Steve Ashley has noted that over the past 10 years or more, agencies, their administrators and supervisors have had an improper focus on police liability. Instead of properly training their officers in the legal parameters of use of force and the skills they need to save their lives, they have instead been overly consumed with civil liability and avoiding being sued. This improper focus, notes Ashley, hasn’t reduced officer deaths or injuries.
 
For officers, the proper equation for sound decision-making skills on the use of force is the following:
 
  • Knowledge of the law + Repetitive training on relevant and realistic skills = Competence
  • Competence = Confidence
  • Confidence = Control of fight or flight response or sympathetic nervous system (SNS) reaction
  • Control of SNS = Good decision-making skills
 
The result: Competence and good decision-making skills reduce officer injuries and deaths.
 
End Game
Improper focus on liability, improper training, ignorance about the use-of-force law and failure to follow your own policy all lead to poor morale and officers who won’t aggressively enforce the law or are hesitant due to fear of the fallout. An officer shouldn’t have to contemplate whether their agency will back them up and support them if they do the right thing at zero-dark-thirty in a dark parking lot.
 
If an officer’s oath of office includes the line, “… support and defend the constitution, the laws of the state of _________, and the ordinances of the city of ________,” perhaps an administrator’s or supervisor’s oath of office should include the line, “I will support and defend my officers,” as well.
 
Micromanagement, as well as instilling hesitancy, trepidation and uncertainty in line officers in the application of force is mismanagement and certainly not leadership—and worst of all, it can get officers hurt or killed. Know use-of-force law, train your officers and demand that they and the agency administration follow the law and policy. And by all means, raise the bar for your officers’ conduct in the use of force and support and defend them as well.

 




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Kevin R. DavisKevin R. Davis is a full-time officer with more than 25 years in law enforcement.

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