Worst-Case Scenario “Deadly Force”

Article Tools Print This Page | Comments(3) | Suggest a Story

By Tracy E. Barnhart

Published: 05/17/2010

“A hero is someone who steps up when others are backing down.”

There is an understandable reluctance by corrections officers to use deadly force. Officers are not evil people and they do not want to harm or kill anyone. So many times when a corrections officer faces a situation in which deadly force is the appropriate level of force, the officer may hesitate or seek some other lower level of force, which generally decreases his or her own safety and may lead to the death of the officer. While in some respects this decision is admirable, the fact is the officer must survive and win the encounter, not just for his or her own well-being, but also for the correctional community as a whole. For if the officer is incapacitated or killed due to their attempt at a lower force option, it sets a precedent that may envelope the correctional community as a whole.

Charles Spurgeon, a cleric who lived from 1834 to 1892 was a very knowledgeable man in his interpretation about knowledge itself when he wrote, “There are three variables that determine knowledge and ignorance”:

Things that we know that we know,

Things that we know that we don’t know, and

Things that we don’t know that we don’t know.

Of the three, the third variable is the most dangerous to us. Knowing that we know something and knowing that we don’t know something is a choice. Not knowing that we don’t know something is a state of ignorance.

In my previous training article on the unconvential delivery of deadly force in a correctional facility, I hope that it brought up many conversations in roll call. One comment that has made its way back to me was what about the “human will” to actually take a life. It is difficult in itself to know when the right time to utilize deadly force is but even if you are within your rights to take a life, could you do it in the first place. The will to take a life walks hand in hand with the knowledge of when and how you are permitted and did circumstances truly dictate the need.

“All you have to do is follow three simple rules. One, never underestimate your opponent. Expect the unexpected. Two, take it outside. Never start anything inside the bar unless it’s absolutely necessary. And three, be nice. If somebody gets in your face and calls you a cocksucker, I want you to be nice. Ask him to walk. Be nice. If he won’t walk, walk him. But be nice. If you can’t walk him, one of the others will help you, and you’ll both be nice. I want you to remember that it’s a job. It’s nothing personal. I want you to be nice until it’s time to not be nice. When will we know when not to be nice? You won’t, I will tell you when its time not to be nice.”
Roadhouse 1989

I have used this quote in my trainings many times but until recently, it has made me think about our profession in a different way. It used to hit a point about how to remain professional and not take things personally but after writing the articles on deadly force, I took it in a different light. As you read that quote, I want you to think about our management psychology today in corrections. We have systematically backed off or taken away the immediate reactions skills of our officers on how to respond to violent situations until they call for assistance and then a supervisor guides them through the event. Now have we done this to prevent lawsuits? Prevent bad decisions from officers or are we unsure of the training and knowledge base of our employees on how to respond when things go bad? Therefore, officers have grown accustomed to calling a supervisor to mediate the situations that occur on a daily basis.

I get almost daily e-mails on officers throughout the country that are killed in the line of duty. With each death notification, I often wonder if they reacted too slowly or as the incident evolved, failed to react properly and utilize deadly force when the need arose. It could be moral beliefs that the officers could never take the life of another human being or it could be they were too reluctant to respond appropriately because of fear of being wrong. How many times have you heard quotes from administrators or trainers that if you do this or that you will be sued or terminated? We are constantly blasted every time we go to work that we could be sued, terminated, or even incarcerated for doing our jobs. Understand that you can follow your agencies policy to the letter, and still be wrong or found negligent for your actions.

How many uses of force reports have you written in your career? 100? 300? In those reports how often, did you write that before you acted or responded you were in “fear” for your safety? I bet never. However, you cannot tell me that before each situation you were not uneasy about how the outcome would transpire. Never got butterflies when the individual was in your face threatening you and telling you what he was going to do to you? No Way! We as correctional officers never get scared or have second thoughts about a violent situation do we? It is often very troubling when officers get on the witness stand and defense attorneys ask them, “were you scared?” Almost never do I hear the officer respond, “You bet I was, my mind was racing at a 100 miles per minute!”

Fear is a system overload stimulated by your perception of the perceived danger or threat. Fear is an emotional response to a perceived threat and officers may incorrectly perceive fear and have a constant apprehensive approach to the day. The human body copes with stress with the aid of two main hormones, DHEA and Cortisol. An imbalance of these forces put your body in a great disadvantage for handling stressful situations.

“Fear is the instinct of self preservation to danger. All animals feel fear. Of all the emotions that we possess, fear is the most important to our survival.”
Lord Morgan, Anatomy of Courage.

“Fear is a neural circuit that has been designed to keep an organism alive in dangerous situations.”
Dr. Joseph LeDoux

Progression of Reasonable Fear in a violent situation:

Perception of a threat
Awareness of vulnerability
Decisions to take action
Survival mode
Decision to respond
Response.

Fear is our body’s way of avoiding dangerous situations that can cause use physical and mental harm. As long as the fear is founded on tangible facts, it can be very useful. Fear can keep our actions in check, and it can trigger our natural “fight or flight” response. Fear that is unfounded in facts can impair our ability to make rational decisions, and it can jeopardize our ability to survive. Worry is a type of fear that can be based on facts, but is usually something that has not, and may not ever happen. Don’t be fearful of the unknown; don’t worry about that which you cannot control. Instead keep your mind on the task at hand; Survival!

However, there are unreasonable fears that cloud our minds and cause us to make bad decisions and even issue malicious punishment toward individuals. Unreasonable fear is a fear generated in the officer’s mind that has no direct correlation to the facts or situation at hand.

Fear of doing physical harm: Other types of disorders or anxiety can cause doubt when the threat may or may not be there. Caused by cultural background, family influence, and religious influence. Although a reality, many people involved in combative training have not “really” internalized or thought about having to take a life or seriously injure another person.
Psychological fear: Caused by being impacted to the point of system overload because of noise, situation, numbers of people. If one, does not come to grips with this issue and mentally prepare for altercations one will fail to act, or act incorrectly, in such a situation.
Positional Fear: Caused by the lack of preparation, training or not personally suited for the task.
Racial Fear: Caused by lack of contact, rumor, gravity to ones own ethnic group, politics and power, or lack of power.
Cultural Fear: Caused by a lack of exposure, failure to understand, mannerisms, “Haves look down on the have not’s” resent and reject.
Peer Disapproval: A desire to be accepted leads to fear of being rejected; fear of rejection can create a system overload.
Legal Fear: A fear stemming from the officers lack of knowledge as it pertains to policy, laws and court decisions stemming from use of force rulings. The officer may fear investigations, or allegations stemming from excessive force charges.
Type of fear Officers Most Fail to articulate is: “Fear of Physical Harm.” We cannot always control our environment in which we work but we can control our responses to that environment like controlling breathing, remaining calm and professional, using our instincts, and knowing our limitations.

Physical fighting skill has no value if the officer does not have the will to carry out life-saving actions. Officers who wait to long to act in the face of a clearly identifiable and immediate deadly force threat may never get the chance to defend themselves. This is the question I have to ask every time an officer is killed, “During the attack, did it every cross your mind that this guy was trying to kill you?” Is doing nothing, doing something? What if an armed suspect refuses to give up the weapon and stands unmoving after your repeated verbal commands? When do you know that you have fallen behind the reaction curve and it is too late for you to respond aggressively to save your own life? Every objectively reasonable officer knows: there are inherent dangers of the job of law enforcement; There are inherent limitations to the officer’s abilities to assess and respond to perceived threats: Limited time, Limited abilities, Limited means, and Limited control.

Limited Time: Action beats reaction
Limited Abilities: During tense circumstances, officers have limited physical and mental capabilities.
Limited Means: Officers do not have reliable means to instantaneously cease persons threatening actions.
Limited Control: “Chance” plays a significant role in all human endeavors, and even though an officer’s preparation, training, skill, and planning can lesson the effects of chance, these effects cannot be reliably eliminated.

However, force is unavoidable in our profession and we must understand that our abilities, personalities and reactions must not impede on moral, legal, and ethical principals involved. Always Remember:

If the level of force is justified, the officer may use anything capable to deliver the necessary force.
Potential injury to the aggressor should not deter the necessary lawful force.
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.
It is incumbent on the officer to overcome the individual’s resistance quickly, to minimize the potential for injury, or degree of injury, to himself or herself or the offender.

Now the big question and the purpose of this training article, “When am I justified?” “At what point can I pull out all the stops and disfigure this individual?” “When can I press my fingers into his eyes?” “At what point can I pull off an ear?” Wow, heavy stuff isn’t it? However, the problem here is that these points in time are difficult to establish and fall into the grey shaded area. Not one author I know of wants to put himself out there and give this advice because of legal ramifications. The courts have failed to even put themselves out there in use of force accounts because of the fact that each situation is different and may appear different to each officer involved. That is why the courts have stated: 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.

“The Reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight. Not every push or shove, even if it may seem unnecessary, violates the constitution. The determination of reasonableness must allow for the fact that law enforcement officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving about the amount of force that is necessary in a particular situation.”

A few things need to be considered regarding the mental, emotional and psychological aspects of fighting. Specifically, we are talking about the role of ferocity, extreme aggression in self-defense. Although an understanding of the importance of aggression in self-defense is one of the best attributes an officer can have, it is also the most underdeveloped attribute in 99% of the officers I’ve met. Without thorough mental, emotional and psychological training, your chances of winning a fight diminish. In my experience, most correctional are not good fighters at all. Many spend their time learning agency techniques, with little or no time given to mental or emotional preparation. Few officers are truly prepared for the intense mental and emotional stress of chaotic, “in-your-face” violence. They think they are prepared because they’ve studied martial arts or they know some fighting techniques. What they don’t realize is that techniques often don’t work as planned when the officer is experiencing the extreme stress of an attack.

Extreme aggression can help make up for many mistakes officers make in a fight. It is extremely hard to defeat someone who is extremely aggressive, even if he hasn’t studied martial arts at all. He just will not go down and you can’t seem to hurt him. He exhibits no external indications of fear, just a completely overwhelming ferocity that is terrifying in its intensity. This is how I want you to fight. You don’t want to have to “fight to the finish”. The phrase, “And may the best man win” is not acceptable to me. I want to win whether I’m the best man or not. If I’m not the best fighter, I’ll cheat or terrorize to win. You will want to win at any cost.

Recent deaths of two juvenile correctional officers after inmate attack. William Hesson and Leonard Wall left me baffled. The thing that made me scratch my head was that after the attack no inmates were taken to the hospital for treatment of any injuries inflicted by the killed officer. Was the officer knocked unconscious or did they ever believe that the inmates were attempting to take their life? We can all recite the allowances for the use of deadly force, one being the defense of self or others. Therefore, I ask again, “When do you know you’re being killed?” What clicks on the light switch when you begin to take steps to kill your attacker? If you ask any officer out there when they could use deadly force you would get the same patterned drilled into their mind during the basic academy answer. “In self defense of myself or others” But then ask them at what point during the altercation would you consider the need for self-defense and you would get a thousand different uncorrelated answers.

As a police officer, I knew if an individual had a gun, a knife, or a baseball bat, those instruments could cause my death or serious physical harm to me so I could justifiably shoot and kill the individual. Now that I am inside a prison, where guns and extreme instruments should be unavailable to my attacker what are my deadly force indicators? If an inmate punches me in the face, can I choke him unconscious? Well that seems extreme but the UFC has shown us repeatedly the realization of the one punch knockout. If you are knocked unconscious, you have to think will the inmate stab or kill you?

An officer is not required to place him or herself, another officer, a suspect, or the public in unreasonable danger of death or serious physical injury before using deadly force. Determining whether deadly force is necessary may involve an instantaneous decisions that encompass many factors, such as the likelihood that the inmate will use deadly force on the officer or others if such deadly force is not used by the officer first; the officer’s knowledge that the inmate will not likely comply in arrest, recapture or restraint if the officer uses lesser force or no force at all; the capabilities of the inmate; the inmates access to escape and weapons; the presence of other persons who may be at risk if force is or is not used; and the nature and the severity of the inmates criminal conduct or the immediate danger posed.

We hear the comment, “the totality of the Circumstances” But what does that actually mean? I bet you can’t define it. Any use of force decision, including use of deadly force, by correctional officers must be made within the “totality of circumstances” surrounding each specific incident the officer confronts. There are many considerations within this totality that affect the necessity to use reasonable and appropriate force. They may include, but are not limited to:

Can the subject who is resistant, physically comply with the issued commands or directions?
Does the officer have the ability to disengage or engage a contact?
Will the officer’s actions or tactics precipitate a higher use of force level?
Will the use of force that is presently appropriate have the desired results?
Is the officer placing himself or herself in a position of disadvantage by using a tactic, even though consistent within the reasonable officer response and perception confines, that is not appropriate for the threat being presented, such as in multiple assailant contacts?
What is the ability, age, gender, physical condition and size of the officer compared to that of the subject?
What is the correctional experience level of the officer?
What are the numbers of officers, compared with the numbers of inmates?
What is the environment (night, day, rain, snow, ice, heat, water, terrain, etc) of the contact?
What available potential weapons are in the immediate vicinity of the inmates?
What is the distance from the officer to the inmate?
What is the background or history of the inmate?
What is the severity of the incident that led the officer to be in contact with the inmate?
What is the officer’s intended result from the escalating force?
Is there an immediate presence of innocent bystanders or other inmates?

Answering these questions may assist the officer in justifying or determining the necessity for the escalating or de-escalating of the reasonable use of force level up to deadly force. The officer must keep in mind that these considerations can change at any time and must be mentally aware and able to adapt to the changing circumstances.

In conjunction with the totality of the circumstances, the application of force by an officer will be based on meeting the requirements of what may be called the Jeopardy Triangle. The triangle exists within the necessity to escalate the use of force. The principle or concept of the Jeopardy Triangle can apply to the officer, other people, an arrest or an enforcement action. The Jeopardy Triangle does not necessarily mean the officer is in jeopardy. The three sides making up the triangle are:

Means
Opportunity
Intent.

Means addresses the inmate’s ability or capability to carry out a threat he/she has insinuated. Does the inmate have the means of causing you or a third party physical injury, serious physical harm, or death? In an explanation, means is the ability to cause you or third party harm. Means can include the physical size, skill or ability as well as possession of a weapon or improvised weapon.

Example: An inmate in physical possession of a knife has means because he has a knife and can stab the officer; however, it would be highly unlikely that an inmate who can use neither arms nor legs would be capable of carrying out a threat of physical battery. The means to carry out any threat professed must be logical.

Opportunity indicates that the threat perceived by the officer is imminent, but not necessarily instantaneous. Does the inmate have the opportunity of causing you or a third party physical injury, serious physical harm or death? In an explanation, does the individual have the opportunity to cause you or third party harm? Opportunity is based on proximity and environment. Opportunity varies dependant on type of means being employed by the individual.

Example: An inmate is throwing rocks at an officer who is standing 40 feet out of the range of the thrown rocks. The inmate has the ability/capability, but lacks the opportunity because the officer is out of range. At this point, there is no imminent danger of being struck by the rocks. An inmate saying, “I will stab you tomorrow” or “one of these days” does not constitute opportunity because the threat must be in the present and the danger or action must be imminent. Whenever, the inmate only poses a nuisance to the officer any use of force may be viewed at unnecessary and therefore excessive.

Intent can be expressed or implied by the initiation of an overt act in the furtherance of the threat or action. Does the inmate have the ability of causing you or a third party physical injury, serious physical harm or death? The threat may be from non-compliance or your direction, or being defiant. In an explanation, intent is the expression through verbal threats or threats acted out physically, the intent of causing you or third party harm. “I’m going to beat your ass.”

Example: An officer approaches an inmate who is armed with a knife. The inmate has a cutting instrument and is able bodied, so the ability or capability is present. The inmate will have opportunity as the officer approaches and the threat becomes imminent due to proximity, but no intent has been established because the inmate has not done anything against the officer other than a possible warning. Now, holding the knife in a threatening manner and looking intently at the officer, the inmate begins moving towards the officer, making stabbing and slicing motions as he moves. Intent has now been demonstrated by the initiation of the overt acts in the furtherance of the threat or action.

Each time the use of force is escalated, the triangle for jeopardy must exist. The level of force the officer determines to use must be reasonable and based on the officer’s perception of the threat or risk and the necessity of the officer to act. So I ask again, “when do you know, what identifying factors must be present, when is it OK to activate the monster within?” Well in all my research and talking with other experts in the area of deadly force they keep me laughing when they respond, “It depends on the situation or circumstances?” Therefore, we are right back to the beginning where we started. This is getting crazy huh?

There are definitions in almost all court rulings that seem to hit the nail on the head as to what is a permissible reason in use of force and what is going to send you to jail or the unemployment line. Malicious and Sadistic is the first, No force, deadly or non-deadly, may be used wantonly, maliciously or sadistically by prison officials against prisoners. Force may never be used solely for the purpose of causing harm without a legal reason to affect it. The use of Deadly Force is justified only under conditions of extreme necessity as a last resort, when all lesser means have failed or cannot reasonably be employed. What about this oldie but goodie definition, “repugnant to the conscience of mankind.” In other words, the constitutional prohibition of and “cruel unusual punishments” prison officials lashing prisoners with leather straps, whipping them with rubber hoses, beating them with naked fists, shocking them with electric currents, asphyxiating them short of death, intentionally exposing them to undue heat or cold, or forcibly injecting them with psychosis-inducing drugs. Are you starting to understand the standards by which you will be viewed?

The bottom line is the fact that when you attempt to issue some sort of punishment to the inmate during the event, you can pretty much bet your wrong. Your job is not to punish anyone within your control but to just report violations of rules, laws and actions. Sometimes, when a situation occurs where an officer decides to “take care of business” and administer what I call “institutional justice” this is when the event goes from good to bad. I want you to have a clear understanding about deadly force and when to use it and when it will be viewed as improper. However, the old saying, “I would rather be judged by 12 than carried by 6” applies in these circumstances.

Visit the Tracy Barnhart page

Comments:

hamiltonlindley on 03/23/2020:
He has blue eyes. Cold like steel. His legs are wide. Like tree trunks. And he has a shock of red hair, red, like the fires of hell. His antics were known from town to town as he was a droll card and often known as a droll farceur. Hamilton Lindley with his madcap pantaloon is a zany adventurer and a cavorter with a motley troupe of buffoons.
Swartz on 05/22/2010:
Officials can only hope and pray that they do not get into such situations this inevitably leads to lenghty ;stressfull investigations.One thing that bothers me is the increase of psychological patients at Correctional Centres there is no space at psychological centres and it seems as if Correctional Centres are a dumping site for these offenders whilst being asessed.Correctional Officials are not trained to deal with these people and their behaviour is very unpredictable compared to someone who can clearly distinguish between right and wrong.In these cases the offender will get the benefit of the doubt because they are ill but why not house them in suitable facilities with staff who are trained to work with them.I will do what I need to do in order to protect myself,collagues and other offenders in a violent situation even if it leads to death.The situation and circumstances will predict my actions.You might think that you acted as the reasonable officer would have acted only to find out later you should have acted differently.There is no clear guideline to reasonableness,what may be reasonable to me might not be to you.That is the biggest hurdle in court,how would a reasonable officer have acted?
The Judge on 05/19/2010:
One important thing to be carried out is to make a decision and under emergency situations, make that decision quick.

Login to let us know what you think

MARKETPLACE search vendors | advanced search