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The following is a post from The Virtus Group member Louis Hayes, Jr.

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The Reasonable versus Necessary argument continues to poke its head out from time to time. This month is one of those times when the battle is more heated than usual. (Heck, even I’ve been interviewed by the press on this!)

I’ve been teaching police use of force for sixteen years now. As a young police officer in the 1990s, I was given a few violent street experiences that encouraged me to really delve into and study the complexities of law enforcement powers of force. My research eventually landed me some broad platforms to train and write about it.

I came into law enforcement at a time when use of force policy was undergoing a radical shift. The trend was that agencies were dropping use of force policy “continuums” and picking up the court standards of “Objective Reasonableness.”  

Much of the thinking regarding the shift revolved around this argument: Linear continuums do not account for the complexities and uniqueness of each possible street encounter. For example: an assaultive elderly lady and an assaultive professional boxer would BOTH be lumped together in “assaultive” behavior categories. Essentially, the continuum model promotes (even if unintentionally) an if-this-then-that robotic programmed response.

Progressive agencies realized this non-thinkers model was getting their officers into trouble…by NOT analyzing each situation as unique. These agencies turned to the case law opinion of the US Supreme Court in Graham versus Connor (490 US 386; 1989). In a highly condensed summary, officers would be held to a standard of “reasonableness” in response, given the “totality of circumstances” known or believed by the officer. The idea of “objectivity” was that the police response was either reasonable…or not. (Think: Pass-Fail.)

This shift in policy allowed officers to exercise discretion and creativity to match the actual situation at hand. Most every progressive police executive and research group in the nation has endorsed this case law standard. (However, even as I write this today in 2016, there are still police agencies that subscribe to the outdated linear continuum policy model and cultural mentality…some of which are very large urban police agencies!)

My view of the Objective Reasonableness standard is that it was never meant to be a gold tier of policing. It does not shape what ideal or perfect law enforcement force looks like. It is essentially a benchmark ruling as to whether or not the officer or agency Passed or Failed. In some cases, the officer’s actions pass the test…but are hardly examples of great decision-making in policing. (Think: D- grade…passing but you were almost punished.)

However, we as a nation NEED the reasonableness standard to effectively police our communities. Officers are put into situations that are emotionally-charged, tense, dynamic, confusing, and outright fearful. To expect (or demand) some sort of exacting or mechanically-applied perfection is to ignore how humans behave in times of stress. We must give our police officers some flexibility and some allowances to make split-second decisions. Basically, we evaluate the officer on the decision made and determine whether or not that decision was fair enough. Not perfect. Was it OK enough?

So where does the necessity standard come in?

Complaints against the police force often arrive in questions of, “Was that shooting (or force, or Tasering, or batoning, or K9 bite, etc) really necessary?” The questions poke at whether or not there were other options available. And why weren’t those options attempted? Could lower levels of power or shorter duration been successful? And what else could have been tried? Why didn’t you call in a crisis negotiator? Or his family? Or just wait twelve (or twenty) hours until he tired out? What the necessity standard gets at is whether or not the force used was the last possible option.

The problem with this necessity standard is that we will never know what else COULD have happened with other alternatives. (In fact, the outcome with another option could have been WORSE.) The only way we’d know for sure whether some police action was necessary or not would be through the use of a crystal ball or a time machine.  Necessary or needed is defined as an absolute requirement. That’s simply impossible to answer. There are way too many unknown and unknowable variables.

One of the buzzwords accompanying the necessary force argument is “legitimacy” – the theory that the police are seen as a legitimate and responsible authority by the community. And a very vocal segment of the community is voicing their concern that police should hold themselves to standards HIGHER than that which is “reasonable” – and be held to that which is “necessary” – by binding or punishable agency policy.

So where do we move from here?

Current case law does not require officers to exhaust other less-forceful options before employing a “reasonable” option. For example, an officer does not first have to try a Taser on a knife-wielding suspect before shooting him/her, if deadly force is lawful option. So if the officer does NOT attempt the Taser, and decides on using his/her firearm, we do not truly know if the firearm was necessary or not. The officer would have had to experience a failure with the Taser (and every other strategic, tactical, and force option!) before moving onto deadly force. We can’t call a do-over to recreate the event to see whether or not these options might have accomplished the goal.

Attempting to exhaust every other less-forceful alternative…and waiting to see if they work or not…can be a very costly experiment. US courts acknowledge this danger and humanly impossible task…and therefore do NOT require it.

But I am going to suggest something that splits this argument:

Officers should, WHEN THE SITUATION PERMITS, exhaust other less intrusive strategic, tactical, and force options.

Read that again. Let that sink in.

This approach of exhausting other less-injurious or less-forceful alternatives is about restraint, not reluctance. It maximizes the opportunities for a suspect to comply. It even proves to the officer him/herself that the options are waning. (We in LE are often our worst critics in serious uses of force, especially those that result in death, when it comes to “what if I woulda tried _______?”)

This is not for every situation. Some unfold at millisecond speed at “bad breath” distances. However, sometimes we officers are the ones who put ourselves in those compressed timelines too. When possible, we CAN hold ourselves to standards HIGHER than mere reasonableness. We can try other “stuff”…just sometimes opt not to.

I’m not exactly sure what “necessary” force looks like. It’s a crap shoot of personal opinion and conjecture. But I know this: necessary is higher than reasonable. And maybe if we in policing began exhausting some of our strategic, tactical, and force options…just maybe…our actions would be viewed at being a little closer to the invisible “necessary” line.

Necessary is an ideal, perfect, but abstract standard. To punish our officers to this abstract, clouded, emotional standard is completely off my table. We cannot hold our officers accountable to blurred parameters!

However, if purposeful, thought-out, restrained, compassionate, and last-ditch strategy, tactics, and force bring us a few steps closer to legitimacy and trust, I’ll give it a try. When I can. Not always.

But I’m also not going to promote suicidal risk of our officers who are holding the line for us tonight. That’s asking too much.

Addressing the gap between reasonable and necessary force is vital to the future of building trust. I hope you’ll consider my thoughts. Try something that's not required by law. That’s a reasonable request, isn’t it?

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Louis Hayes, Jr is a system thinker and provocateur for The Virtus Group, Inc, a firm devoted to developing public safety leadership. He is a law enforcement trainer with biases in Constitutional law, crisis intervention, and tactical policing. Lou can be reached on Twitter @LouHayesJr and under #ThinkLE.

Be sure to follow these ideas at @TheVirtusGroup.


 


Comments

Ashley
02/07/2016 10:43am

Lou, you make several good points here, and I understand the significance of restraint. My circuit, the Third, evaluates pre-seizure conduct as part of the Graham analysis. As a practical matter, that means a cop can't create a confrontation, and then rely on those circumstances to justify the force used to control the situation. A few other circuits have a similar approach, and I wonder if it'll be adopted by the rest, or the US Supreme Court, in the future.

I recently attended a professional meeting where these proposals were discussed. The consensus seemed to be that about 60% are already being done by good cops and good agencies, about 20% are positive ideas to which we should aspire, and the remaining 20% are going to get cops injured or killed.

02/08/2016 3:46pm

Thanks for the comments, Ashley. Many officers DO already do this already...voluntarily because they believe it's the right thing to do! We are certainly going to see more and more of these cases going to court to analyze pre-seizure/force/contact decisions. I've been long saying that STRATEGY is more vital than TACTICS, which is more vital than FORCE. We (in LE training) haven't always prioritized these appropriately.

Tim Murphy
02/15/2016 2:38pm

Lou,

Good food for thought. Not everyone will agree with this, but it has some real merit. This is where our trainers (academy level to in service) have to step up their game as far as instructing sound doctrine and force options. We must continue to evolve as a profession (proactively) unless we want to submit to laws and policies that hinder our mission and compromise our safety.

02/16/2016 4:46pm

Thanks Tim. If we don't step up, we will NOT like the case law opinions that result. There are already a couple of appellate circuits that are making serious hints at pre-seizure conduct.

Rich Conley
02/22/2016 1:59pm

Lou, great article. Worth reading several times over. Necessity and reasonableness should be compared with caution. If force has been determined "not necessary" the reasonableness question is no longer relevant. If force was necessary, the reasonableness of it should be analyzed throughout the entire incident, as necessary force can become unreasonable at any time.

Necessity, to use force, often times refers to officer engagement. Did the officer need to engage at that particular time? Decisions, tactics, and a variety of other topics should be considered to determine the need for force (engagement).

Shouldn't the need vs reasonableness be analyzed separately?

Looking forward to your thoughts!

02/24/2016 3:05pm

Rich, thanks for the comments. I believe you and I are approaching these two terms from separate perspectives. Let me expand on my thoughts: All force that is subjectively Necessary, is also legally (and within policy when policy mirrors case law) Reasonable. Not all force that is legally Reasonable is Necessary. Necessity is not only a different standard, it is a HIGHER standard that is above and beyond Reasonable. (some put it on a spectrum; some plot it on 90-degree axes with Legal/policy vs Legitimate/acceptable on axis labels).

And at this point, I'm only talking about the moment force is used, not the pre-force, pre-seizure, pre-contact moments that lead up to force. Those actions too are being more subjected to Reasonable and/or Necessary evaluations.

Does this clarify my perspective? Let's absolutely continue this discussion.


Comments are closed.