How Government Officials Can Adjust Their Use of Force in a Charged Political ClimateApril 22, 2020
Has your organization ensured that your entity’s Use of Force policy is one that will represent you well in case of litigation?
It involves the 4th, 8th, & 14th Amendments and is one of the most frequent and costly claims for an entity. The environment has changed drastically, even within the past year. Consider the potential implications of just two recent court rulings:
- In Armstrong v. the Village of Pinehurst, the 4th U.S Circuit Court of Appeals ruled that the use of Electronic Control Devices, or ECDs (i.e., stun guns or “Tasers”), may be viewed as unconstitutionally excessive force in certain circumstances where “risk of immediate danger” cannot be demonstrated.
- In Kingsley v. Hendrickson, the U.S. Supreme Court’s ruling for the plaintiff in an excessive force suit established a crucial distinction for reasonable vs. unreasonable use of force that will very likely affect future litigation. Specifically, the ruling determined that the plaintiff was not required to prove subjective intent of the police officers to use unreasonable force, but only that the use of force would be considered by an observer to be objectively unreasonable.
In light of these changes and increased national scrutiny, has your organization ensured that your entity’s Use of Force policy is one that will represent you well in case of litigation? Trident strongly advises its insureds to take the following steps, at a minimum:
- Review your current Use of Force policy. Rulings such as the ones cited are occurring frequently, and these changes could likely affect how your law enforcement organization operates. Do a thorough review of the policy, especially with regard to the Use of Force model that outlines correct police officer response to escalating levels of resistance. Make sure that it appropriately addresses new precedents. For example, does your Use of Force model suggest ECD use at too early or late a stage in an escalation? Does your policy take into account the size of the officer vs. the size of the detainee? Your policies should allow for officer discretion and for extenuating circumstances. Also, review the language of the policy itself and revise all-inclusive or superlative words and phrases such as “all,” “will,” shall,” “must,” “at all times,” etc. to words such as “should.” (Example of a poorly written rule: “All police officers will wear their firearms at all times.”)
- Train your force regularly about how to report incidences properly. It is crucial that not only do officers follow the use of force guidelines set by the policy, but that reporting follows and directly cites those guidelines in describing situations with detainees. (Example: “The detainee was compliantat first and provided his driver’s license, then began to show passive resistance by refusing to step out of the car when asked.”). Conduct documented training annually or more frequently depending on changing guidelines in your state.
- Use incidents as training opportunities. When appropriate, use incidents as opportunities to review the policy and determine how officers can better handle unique situations, such as mentally ill or drug-addicted detainees, as they occur. Let your management determine which incidents to use and what to emphasize, then discuss with troops.
Paragon Can Help
We offer several whitepapers in our online resource library, including a Use of Force Policy Elements guideline. We also offer the following free resources for your organization:
- A CD with a complete set of law enforcement policies and procedures, developed for public entities by OSS Law Enforcement Advisors, a nationally renowned law enforcement consultant.
- Online training courses for your law enforcement staff in the Use of Force and more 60 other law enforcement topics. Take a look at our course lists.
- U.S. Department of Justice – Community Oriented Policing Services (COPS) Use of Force page
- OSS Law Enforcement Advisors