By Terry Baxter, Law Enforcement and Safety Specialist
There are many high-risk critical task of law enforcement operations that can impact litigation exposure, but the one task that faces the most controversary and affects law enforcement and community relations is allegations of excessive force. Unfortunately, the reality of having to use physical force in arrests can be extremely high.
It is important that law enforcement agencies have policies relating to use of force and staff know the policy, but the most important aspect of policy is policy training, something that gets overlooked and for this reason counties need to ensure each of their law enforcement officers understand the difference between reasonable force, unreasonable force and what is outlined in agency policy.
The recent event that occurred in Minneapolis involving the death of George Floyd after video surfaced of a police officer using his knees on the back and neck of Floyd while he was handcuffed restricting his air flow, after Floyd repeatedly indicate he couldn’t breathe, sparked outrage and protests across the country. To be honest I don’t know the whole story surrounding the event, outside of the publications I have read and the daily reminder of national news coverage on radio and television. But I do know what I have seen, the actions or the lack thereof the officers on scene does not paint a favorable picture for the Minneapolis Police Department.
In 1989 the Supreme Court decision in Graham v. Connor established an objective reasonableness standard under the Fourth Amendment when a law enforcement officer can legally use force on a suspect and how much can be lawfully used. The Court also cautioned, “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.” Allowance is taken into consideration for the fact that law enforcement is often forced to make spilt second decisions about the amount of force used in that particular situation, now that being said does not provide a green light apply excessive force by any means.
The Court outlined a list of factors when determining objectively reasonableness:
- the severity of the crime
- whether the suspect possesses an immediate threat to the safety to the officer(s) or others
- and, whether the person is actively resisting arrest or attempting to evade arrest by flight
When considering use of force trainings, Graham v. Connor should be on the fore front and law enforcement officers need to embrace the training and be completely familiar with perimeters already established by the Supreme Court as it relates to use of force concerns.
Look, no one wants to get involved in litigation, and for the most part law enforcement officers do the right thing during encounters with the public that don’t always go well. Remember there are other articulable facts which should be considered during training exercises to enhance the law enforcement officers ability to determine the extent of force that will be used:
- number of suspects v numbers of officers including availability to back-up;
- size, age and physical condition of the officer and suspect;
- previous mental or violent history;
- perception of drug or alcohol use by the suspect;
- proximity of weapons;
- environmental factors;
- injury to officer in prolong fight; and;
- officer in an unfavorable position.
Administrators need to be reviewing every use of force event that occurs within your agency to determine the proper amount of force applied was based on the totality of circumstances facing the officer on scene at the time, as well as determining compliance with agency use of force policy.
Police expert Gordon Graham stated, “everything you do in both life and law enforcement involves a level of risk.” Your agency can reduce exposures to use of force litigation by making sure everyone understands the risks and everyone understands the Fourth Amendment law enforcement officers are familiar with the decision in Graham v. Connor, everyone understands agency policy and training is mandatory.
Mitigate critical operation tasks by recognizing the risks and ensure officers are prepared with sound policies and continued educational trainings. Success with public encounters will reflect back on the agency’s success as well as, success can equal limiting exposure to litigation.