You have just been involved in a stressful and violent situation. Your body has just had a major surge of adrenaline and other chemicals that will be coursing through your system for hours. Now it is time to set down and start writing what transpired. Depending on the severity of the incident will effect your recollection of the episode and the individual clarity will not come into focus for several hours after the violent situation. I know that a lot of department regulations mandate that you complete a use of force report prior to the end of your shift but think about this. Due to your elevated stress level and adrenaline dump you may want to take some time to yourself prior to talking to anyone or writing anything down on paper. If the incident resulted in a major injury or death to the individual, you better go to the hospital and get checked out yourself and ascertain your current mental condition, medication may be recommended.
Corrections officers have been granted the extraordinary authority to use force when necessary to accomplish lawful ends. That authority is grounded in the responsibility of every officer to comply with the laws regarding the use of force and to comply with the provisions of your policy. Equally important is law enforcement’s obligation to prepare individual officers in the best way possible to exercise that authority. In situations where law enforcement and corrections officers are justified in using force, the utmost restraint should be exercised. The use of force should never be considered routine. Agencies require officers to complete use of force reports in all use of force incidents no matter the level of force used for various reasons unique to the politics and culture of the individual agency. The general premise for these reports falls into several categories:
There are five (5) reasons why force should be accurately reported:
- Law enforcement and corrections officials want data on the use of force as it relates to individual responsibility.
- This data, in turn, is tabulated for controlling the future application of force.
- Rank and file want information on their member’s use of force to illustrate restraint, identify professionalism and compassion, and help protect the rights of officers in an after action review.
- Oversight agencies want data on the use of force as a basis for analyzing the factors surrounding its application and determining how law enforcement and corrections can better minimize the effects.
- News media have a natural interest in law enforcement and corrections use of force because it is their job to report newsworthy items to the public; Hint. It also sells papers and assists TV ratings.
While writing a use of force report compile a comprehensive and chronological summary of the sequences as they transpired during the event while marinating the details. No two reports are the same so there is no way you can maintain a standard outline on how to compile it. However, we can tailor our reports to the specific questions that will be asked by our supervisors, investigators, or juries. Details are very important in a report and no particulars should be left out because of time constraints or brevity due to writers cramps.
- The use of force is one of the most controversial areas of law enforcement and corrections activities. Citizens have a right to know what type of force is employed by officers and under what circumstances they will employ it.
- If the evidence of a use of force allegation against an officer is inconclusive, a point in the officer’s favor is a good track record. Past use of force reports can demonstrate an officer’s good judgments and behavior during stressful violent situations.
- The best defense available to a government agency in a civil suit is to have acted properly. This includes job related competency based training, proper updated policies, correct supervision, and a reporting system that facilitates all of the above.
- These reports can be the basis of documentation in which unfit officers are identified and screened out of the agency. Some officers should not be officers and just slip through.
- Accurate reporting should not allow officers or supervisors to write themselves out of a bad situation. Inaccurate or untruthful creative writing skills will only put themselves and the agency in a poor shade of light.
It is at this initial stage of the critical incident that the agency can ensure that the documentation is consistent with the factual elements of the incident. Before any reports are submitted by an officer, records such as dispatch tapes, call logs, emergency medical treatment records, and video tapes from the area should be reviewed by the officers and supervisors. This will not taint the officer’s report by reviewing these items only to refresh the officer’s memory by observing the incident as it transpired. Many agencies do not permit this step, so as to check the officer’s reporting accuracy and truthfulness in their documentation against the actual video tape evidence. Supervisors must read each use of force report and edit them for grammatical errors.
Use of force reports should contain exactly what happened accurately and truthfully. Any propaganda or deception will eventually be brought to light and will only lead to your eventual downfall or possible prosecution. You must set the scene for the reader as to what you were doing prior to the incident taking place. What drew your attention to the individual in question and most of all what were your feelings or fears that you may have had. It almost seems that reporting your feelings during a volatile incident is inappropriate but in essence it may be able to set the stage for the use of force justification as all force incidents should be seen through the eyes of the officers not second-guessed or arm chair quarterbacked.
Your supervisor will not be the only one who will read this report. Think about the prosecuting or defense attorney, the eighty year old juror or even the Supreme Court Justice. Observations as you approached the individual and their level of defiance. Were they conspicuously or inconspicuously attempting to ignore you, the exaggerated or ceasing of movements? Was the individual target glancing, looking around to ascertain your back-up or eventual escape routes. Do you know the individual and have past aggressive or violent experiences? What was the individuals response to your inquires and requests? What were his exact verbal and non-verbal responses? The position of his hands and what was the hand set, such as clenched into a fist.
Although your force responses are evaluated by your supervisors, trainers, and the courts, the way that you write your report and testify in court often makes the difference in the finding that you acted righteously.
Understanding how force is evaluated can assist you in explaining why you did the right thing. When evaluating the use of force, justifiable force must be evaluated as being one of the following:
What were the subject’s actions or pre-attack postures? Did the individual take on a bladed boxer’s stance or did he shift his shoulders into an aggressive position? What was the hostility level? Was the individual belligerent, rebellious, pugnacious or was he nervous cooperative and just skirmish? Did the individual make advancements toward you or continue to walk or run away from your presence? Did the individual act as if you were not even there and attempt to ignore you? All of these activities are essential to the pre-force set up so as readers can know exactly what you were observing, feeling and sensing as the incident unfolded. If you fail to leave out this essential element the reader may not be able to correlate the reasons for your usage of force and initially believe that the force may have been unjustified.
- A “Trained Technique” Performed when appropriate based on the “totality of the circumstances” known to the officer at the time of the incident.
- A Dynamic Application of a trained technique performed when appropriate based on the “totality of the circumstances” known to the officer at the time of the incident.
- “Not trained, but justifiable based on the circumstances” performed when appropriate based on the “totality of the circumstances” known to the officer at the time of the incident.
Of every one hundred men, ten shouldn’t even be there;
Eighty are nothing but targets;
Nine are real fighters….We are lucky to have them….They make the battle.
Ah; but one; one of them is a Warrior….And he will bring the others back.”
Heraclitus (Circa 500 B.C.)
Resistance depicts the nature of confrontation that officers faced when using force or threatening to use force. It is important to note that in any individual confrontation, a person may exhibit many levels of resistance, and, if more than one person is involved, different people may exhibit different levels of resistance. Consequently, the amount of force an officer uses may change through the course of an event. The levels of resistance are as follows:
After the completion of your use of force report all of the following questions should be answered by your documentation, juries do not want to see watered down versions or hazy memories about the incident, the answer, “I don’t recall” sounds like you are lying:
- Psychological Intimidation – Nonverbal cues that indicate a subject’s attitude, appearance, and physical readiness to resist. Verbal Non-Compliance and Passive Resistance usually do not involve conduct sufficient to support criminal charges related to resistance. There is no legal definition in English law as to what behavior constitutes “Intimidation”, so it is up to the courts to decide on a case by case basis. However, if somebody threatens violence against somebody, then this may be a criminal offense. Criminal threatening can be the result of verbal threats of violence, physical conduct (such as hand gestures or raised fists), with the purpose of coercing or terrorizing.
- Verbal Resistance – Verbal responses that indicate a threat or an individual’s unwillingness to comply. Document any threats, curse words and verbal escalation of the incident. Usually the subject will attempt to offer unacceptable or irrelevant excuses for his behavior, or express negative emotions verbally, or otherwise say things that are simply intended to take you “off track” or change the context of the confrontation.
- Passive Resistance – Physical actions that do not actively prevent an officer’s attempt to control an individual. The term passive resistance is a form of noncooperation that is sometimes used imprecisely as a synonym for nonviolent resistance. It means resistance by a knowingly refusal to comply, as opposed to resistance by active means such as protest or resisting arrest. Document the length of time you took attempting to gain voluntary compliance from the individual prior to your use of reasonable force.
- Defensive Resistance – Physical actions that actively attempt to prevent an officer’s controlling an individual but is not an attempt to harm the officer. Was it a push away, a shove to set up an attack or running or walking away. Always Remember: 1) If the level of force is justified, the officer may use anything capable to deliver the necessary force. 2) Potential injury to the aggressor should not deter the necessary lawful force. 3) The individual aggressor always dictates the amount of force to be utilized; therefore, the individual is responsible for any injury they may incur while resisting. 4) It is incumbent on the officer to overcome the individual’s resistance quickly, to minimize the potential for injury, or degree of injury, to themselves or the offender.
- Active Aggression – Physical actions of assault or the use of weapons. An individual cannot assault an officer who is attempting to gain control, affect an arrest or escape detention. Is the action worth the risk of injury to yourself or the aggressor? Does the individual have the opportunity to comply with your lawful commands? Is the current course of action accomplishing the desired results? The totality of the known circumstances? Light switch doctrine; Turn on the force rapidly, and then turn it off after restrained and secured.
Use of force documentation checklist:
- Were all of the individual’s resistance actions and verbalizations included?
- What de-escalation techniques to gain voluntary compliance did you employ if any?
- What did you, the individual and any bystanders say during the restraint?
- What force techniques did you employ and what was the individual’s response to the application?
- Was anyone injured during the event and if so how do you believe that occurred?
What is Excessive? : The “Reasonableness” inquiry is an objective one. The question is whether an officer’s actions are “Objectively Reasonable” in the light of all the facts and circumstances confronting him without regard to his underlying intent or motivation. Evil intentions will not make a constitutional violation out of an objectively reasonable use of force; and good intentions will not make an unreasonable use of force, proper. The test of reasonableness requires careful attention to the facts and circumstances. Reasonable Man Doctrine: The standard which one must observe to avoid liability for negligence is the standard for reasonable man under all circumstances. Including foresee ability of harm.
- The Pre-Force Information: Day, date and time, location of the incident, officers involved, inmates, witnesses, your initial observations “What drew your attention.”
- Approach Considerations: Why did you initiate contact, justification, desirability, reasonable suspicion, probable cause, other.
- Tactical Deployment: How did you approach, environmental description, control of distance, positioning, team tactics activates man-down system, call for assistance.
- Tactical Evaluation: What were your perceptions, threat assessment, gut feelings, fear? Individual’s ability to understand your requests, mental status as observed by the officer.
- Level of Resistance: What did the inmate do, unresponsive, non-responsive, ignoring you, dead weight tactics, resistance tension, tightening up, attempting to get away, pushing off, actual physical assault. Verbal defiance and wording responses.
- Early Warning Signs: Consciously ignoring you, excessive emotional attention, and exaggerated movements, ceasing all movements, target glancing, looking around, Boxers stance, hand set, shoulder shift, thousand yard stare, known violent background.
- Weapon Threat Assessment: What weapons were brought to the scene? What weapons available by proxy? What were the officer / subject differences: size, agility, strength, age, gender, numbers involved, and skill level?
- Special Circumstances: your perception to the threat, sudden assault, your physical position, subjects ability to escalate force rapidly, your knowledge of the individual, your injury or exhaustion, number of friends or other resistors around.
- During Force Objectives: Type of force technique utilized by officer, type of resistance applied by the inmate, stabilization, minimizing injury or amount of injury, application of restraints and what type, monitoring, debriefing, searching, escorting, seclusion, medical observation, hospitalization.
- Post Force Level of Resistance: Continued level of anger, after restrained still kicking, head butting, bumping, and pulling away, spitting, threatening verbiages.
- Officer Relaxation: Post force officer’s ability to regain composure and relax prior to the assumptions of duties and initiating the report.
Even though the use of force is not uncommon, tremendous liability and potential for injury comes with each force situation. No use of force should merely be reported. Each situation is an opportunity to evaluate the officer, policy, training, equipment, etc., and ask how to approach similar situations in the future. At a minimum, the agency should ask the following questions as risk management tools:
- Was the officer’s intervention fully legal? Was the intervention based on a lawful objective?
- Was the use of force proportional to the inmate’s resistance?
- Was there an urgent need to resolve the situation?
- Could the officer have used lesser force and still safely accomplish the lawful objective?
- Was the officer well-trained, qualified and competent with all force tools authorized by the agency?
- Does the officer’s conduct appear to be objectively reasonable?
- Did the officer’s conduct hurried the use of force?
- Is the officer’s language or behavior inappropriate or unprofessional?
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