AN ILLUSORY “CONSENSUS” (Part II)
Good intentions don’t always translate into good policy
By Julius (Jay) Wachtel. This series compares use of force guidelines promulgated by PERF and the National Consensus to police regulations in Los Angeles, Chicago and New York City. Part I covered two key concepts: proportionality and de-escalation. In Part II we analyze specific rules that govern the use of lethal force, including shooting at vehicles and at fleeing suspects, and discuss agency guidelines for dealing with the mentally ill.
Graham v. Connor, the Supreme Court’s landmark decision on use of force, makes no special distinction as to deadly force. According to Graham, “whether officers’ actions are objectively reasonable” must be analyzed “in light of the facts and circumstances confronting them,” using “the perspective of a reasonable officer on the scene.” These “facts and circumstances” include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
PERF: Principle 3 is a commonsensical rule that prohibits using deadly force against persons who only pose a threat to themselves. PERF does not otherwise distinguish as to lethal force. Throughout, its emphasis is on de-escalation and other strategies that can help avert the need to use force against persons not armed with a firearm.
National Consensus: Adopts Graham. Allows officers to use deadly force to protect themselves and others from an imminent threat of death or serious bodily injury. (See below for circumstances involving fleeing persons.)
LAPD: Its basic rule does not distinguish between deadly and non-deadly force and sets the threshold for using force as the need to protect oneself or others from “bodily harm.”
While the use of reasonable physical force may be necessary in situations which cannot be otherwise controlled, force may not be resorted to unless other reasonable alternatives have been exhausted or would clearly be ineffective under the particular circumstances. Officers are permitted to use whatever force that is reasonable and necessary to protect others or themselves from bodily harm. (240.10)
Chicago (draft policy): Similar to LAPD rule but specifically refers to “proportionality” (see Part I of this series):
Consistent with the Department's commitment to the sanctity of life, the Department member's use of deadly force must be objectively reasonable, necessary, and proportional. During all use of force incidents, Department members will apply the force mitigation principles and use the least amount of force required under the circumstances. (sec. II-F-2).
Chicago’s standing policy on the use of deadly force, which apparently remains in effect, stipulates that officers “will not unreasonably endanger themselves or another person to conform to the procedures in this directive” (Order G03-02-03, sec. IV). No such reference appears in the newer, draft policy.
NYPD: https://www1.nyc.gov/assets/ccrb/downloads/pdf/investigations_pdf/pg221-01-force-guidelines.pdf Encourages de-escalation but otherwise parallels the language of the National Consensus:
In situations in which [using de-escalation techniques] is not safe and/or appropriate, MOS [member of the service] will use only the reasonable force necessary to gain control or custody of a subject. The use of deadly physical force against a person can only be used to protect MOS and/or the public from imminent serious physical injury or death (pg. 1).
Shooting at vehicles
PERF: Rule#8 prohibits shooting at vehicles unless an occupant is “using or threatening deadly force by means other than the vehicle itself.”
National Consensus: Permissible if an occupant of the vehicle is threatening with deadly force “other than the vehicle” (sec. D-3-c-1) or if the vehicle is being used as a weapon and officers lack other “present or practical” means to avoid being struck (sec. D-3-c-2).
LAPD: Follows the PERF model but opens the possibility of permissible departures with a note that concedes “this policy may not cover every situation that may arise.” In such cases factors such as the level of peril and whether officers had other means to avoid being harmed will be considered, but deviations “shall be examined rigorously” (sec. 556.40).
Chicago (draft policy): Essentially adopts the National Consensus approach. No firing at vehicles if they are the only force being used unless doing so is “reasonably necessary” to prevent death or great bodily injury to officers or other persons (order G03-02, sec. II-F-6-f).
NYPD: Its highly restrictive rule, apparently a model for PERF, has been in place for years:
Members of the service SHALL NOT (f) Discharge their firearms at or from a moving vehicle unless deadly physical force is being used against the member of the service or another person present, by means other than a moving vehicle (proc. 221-01, page 3, sec. 1-f).
Click here for the complete collection of use of force essays
NYPD’s 2013 firearms discharge report notes that state law is more forgiving, allowing officers “to shoot at the driver of a vehicle who is using the vehicle so that it poses an imminent threat of deadly physical force” (pg. 3). But whether NYPD actually enforces its own, strict rule is open to question. This report - they are issued yearly - lists four ID-AC (“intentional discharge-adversarial conflict”) incidents in which officers were assaulted with moving vehicles classified as “blunt instruments” (pg. 22.) None of these events appear on that year’s list of unauthorized firearm discharges (pp. 43-44). NYPD’s discharge reports for 2012, 2014 and 2015 paint a similar picture.
Shooting at fleeing suspects
PERF: Not mentioned.
National Consensus: Allows it to prevent flight (need not be a felon) “when the officer has probable cause to believe that the person has committed, or intends to commit a felony involving serious bodily injury or death, and the officer reasonably believes that there is an imminent risk of serious bodily injury or death to the officer or another if the subject is not immediately apprehended” (sec. IV-D-1b)
LAPD: More restrictive than National Consensus, requiring both an imminent risk and that the person fleeing is a felon “for a crime involving serious bodily injury or the use of deadly force” (sec. 556.40).
Chicago (draft policy): More permissive than the National Consensus or LAPD. Requires only that “the sworn member reasonably believes that the person to be arrested poses an immediate threat of death or great bodily harm to a sworn member or another person unless arrested without delay” (order G03-02, sec. II-F-4-b).
NYPD: Similar to LAPD – fleeing suspect must be a felon (offense not specified) and present an imminent threat of “death or serious physical injury to the MOS [member of the service] or another person present” (proc. 221-01, page 3, sec. 1-c). A foreword notes that this and other rules are more restrictive than what the law requires:
Uniformed members of the service are authorized under New York State law to discharge a firearm to prevent or terminate the unlawful use of force that may cause death or serious physical injury, taking into account the below prohibitions imposed by the Department…(proc. 221-01, page 2, sec. 1)
Dealing with the mentally ill
PERF: Extensive discussion of the need for officer training and specialized responders. Officers are encouraged to dialog with mentally ill, take the time to call in specialists, and to avoid deploying Tasers against mentally ill persons armed only with a knife unless the instrument is being wielded “in an aggressive, offensive manner” (p. 19).
National Consensus: Not mentioned.
LAPD: Rules mention a commitment to fair, compassionate treatment (sec. 240.30). LAPD deploys mental illness response teams staffed by officers and clinicians.
Chicago (draft policy): Officers are required to communicate calmly, de-escalate, establish a “zone of safety” and call for a supervisor. When mentally ill persons are armed “Department members will not attempt to take the subject into custody without the specific direction of a supervisor unless there is an immediate threat of physical harm to the subject, Department members, or others” (order S04-20-01, sec. II-B-1). As in L.A. and New York, specialized mental health response units are on call.
NYPD: Extensive stand-alone policy similar to Chicago’s. Stipulates that deadly force can only be used “as a last resort to protect the life of the uniformed member of the service assigned or any other person present.” Extensive tactical advice with emphasis on slowing things down, establishing a “zone of safety” and, when persons are uncooperative or armed, waiting for a supervisor unless there is an imminent threat of serious physical injury or death (proc. 221-13, sec. 1, pg. 1).
As we mentioned in Part I, PERF’s well-articulated intentions to restrict the use of force well beyond Graham’s “objectively reasonable” standard dismayed the IACP. Indeed, honorable intentions don’t always translate into good policy. Consider PERF’s criticism of officers who used a Taser to dislodge a schizophrenic clinging to a signpost (Guiding Principles, pg. 18). The man died, likely from the effects of being shocked five times in quick succession. In prior posts (click here and here) we cited warnings about the possibly lethal effects of administering repeated ECW doses in close succession. PERF’s 2011 report on electronic control weapons carries a similar warning. What’s interesting here is that a Federal appeals court ruled in a lawsuit filed by the schizophrenic man’s survivors that the officers violated Graham for too hastily deploying the device in the first place. In its full-page spread on the matter, PERF prominently agreed. (The cops were nonetheless granted qualified immunity.)
Yet one must wonder. In “Is it Always About Race?” we suggested that delaying a Taser’s deployment could lead to something far worse:
Incidentally, our vision of Tasers and bean-bags as preventive tools probably clashes with some agency guidelines. Bringing down an uncooperative someone with a less-than-lethal weapon is best done the instant it’s possible. Waiting for additional justification can turn into a death warrant. So reworking the rules governing the use of less-than-lethal force may be called for.
Had the officers dealing with the mentally ill man succeeded after administering a single dose, their actions would have been applauded. Yet who catalogs successful outcomes?
The “real world” is sloppy in other ways. Point in case: shooting at vehicles. Imagine being a cop on foot as an uncooperative bad guy sits in a car nearby with the engine idling. Always avoid placing oneself in a vulnerable position? Then by all means avoid law enforcement. Agencies write in endless “imminent risk” exceptions so that use of force rules can bend to the exigencies of the real world. Or, as may be the case in New York City, they look the other way when cops fire at vehicles.
Of course, rules have value. Yet the ultimate cure is prevention. In “A Stitch in Time” we urged that officers be kept informed about persons in mental distress. PERF Principle number 29 deems well trained, informed call-takers and dispatchers indispensable (pg. 68):
A number of controversial uses of force by police have stemmed from failures of call-takers and dispatchers to obtain, or relay to responding officers, critically important information about the nature of the incident.
The Center for Problem-Oriented policing recommends that police departments make information about mentally disabled persons available to dispatchers so it can be passed on to patrol. Of course, doing so is potentially intrusive, but as we’ve said, so is shooting someone, or getting shot.
We should also be far more curious about successes. Every day cops peacefully resolve countless incidents that could have ended poorly. Systematically collecting data about these events could prove highly enlightening. How do differences in policy, resources, tactics and officer characteristics influence outcomes? In “Is it Always About Race?” we suggested that policing requires that officers accept some risk. How much is too much, and how much is not enough? Figuring out why cops succeed seems like a far better approach to improving the practice of policing than simply tweaking the rulebooks.
So what do you think? Your blogger would like to craft a follow-up piece to Parts I and II that focuses on what readers think. Please send on your comments to jay [at] policeissues [dot] com. And thanks!
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UPDATE (5/21/17): Chicago PD’s use of force policy has been finalized. Its rules on using deadly force are essentially the same as in the draft. Deadly force is only appropriate as a “last resort” to prevent “death or great bodily harm from an imminent threat posed to the sworn member or to another person” or to effect an arrest “where the person to be arrested poses an imminent threat of death or great bodily harm to a sworn member or another person unless arrested without delay” (Sec. G03-02 Sec. III-C-3.) Rules on firing at fleeing suspects (Sec. G03-02 Sec. III-C-4) and at vehicles (Sec. G03-02 Sec. III-D-6) follow this rationale and are also essentially the same, with the proviso that officers must “make every effort” to avoid vehicles when they are the only force being used.
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Why Do Cops Succeed? More Rules, Less Force? De-escalation Is it Always About Race?
A Stitch in Time Policing is a Contact Sport (I) (II) First, Do No Harm Making Time
AN ILLUSORY “CONSENSUS” (Part I)
America’s police leaders agree on the use of force. Or do they?
By Julius (Jay) Wachtel. You might have missed it, but about two weeks ago, on January 17, eleven of the nation’s major law enforcement organizations, including the IACP, FOP and NOBLE, issued a “National Consensus Policy on Use of Force.” Intended for adoption by all law enforcement agencies, the model policy provides a comprehensive set of guidelines for the use of force, and in an economical three pages, to boot.
We’ll get to its contents momentarily. But while skimming the policy’s impressive list of sponsors, we noticed the absence of two key organizations, the Police Foundation and the Police Executive Research Forum (PERF). Interestingly, right about the time that the National Consensus team got started, PERF released its own “Guiding Principles on Use of Force.” Drawing from police practices and experiences in the U.S. and the U.K., the comprehensive (100-page plus) report offered thirty principles to “guide” virtually everything related to the use of force, from agency policy to the actual tactics that officers employ in the field.
As regular readers know, we commented on that document in some detail (see “More Rules, Less Force?”). Its lukewarm reception by the more practically-minded members of the law enforcement community was seconded by none other than the mighty IACP, which was particularly distraught with the Principles’ criticism of the Supreme Court’s cornerstone decision on use of force, Graham v. Connor, for supposedly giving officers too much leeway in deciding when to use force, and how much.
Indeed, it’s precisely that perceived need for “wiggle room” that lies at the core of the shiny, new “National Consensus” report. Here is about two-thirds of its introductory section on police policy:
The decision to use force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” In addition, “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…the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.”
Incidentally, everything in quotes is from Graham.
In essence, PERF and the Police Foundation are pressing for more stringent and precisely articulated controls on officer use of force, while the IACP and its partners (including NOBLE, the National Organization of Black Law Enforcement Executives) insist the Supremes had it right all along. So how have these competing views affected police rulemaking? Part I compares recommendations from PERF and the National Consensus to rules in Los Angeles, Chicago and New York City in two key areas: proportionality and de-escalation.
PERF: Principle number 3, the “test of proportionality,” requires that officers use the least amount of force required, taking into account “less injurious options,” the “severity of the threat and totality of the circumstances” and whether their actions “will be viewed as appropriate by their department and the public.
National Consensus: Use of force must meet the requirements of Graham, interpreted as “only the force that is objectively reasonable to effectively bring an incident under control, while protecting the safety of the officer and others.” Proportionality and what others might consider appropriate aren’t discussed.
LAPD: Essentially the same as National Consensus. According to vol. 1, sec. 240.10 of the LAPD Manual, when “reasonable alternatives” are absent, officers may employ “whatever force that is reasonable and necessary to protect others or themselves from bodily harm.” There is no mention of proportionality or of any concerns about what citizens may think.
Chicago (draft policy): Adopts Graham and takes it a step further, requiring that deadly force be “objectively reasonable, necessary, and proportional” (draft manual, section G03-02 IIE – emphasis ours). But the practical effect of “proportional” is somewhat muted, as officers need not deploy “the same type or amount of force” as their antagonist, and “a greater level of force” is acceptable when a threat “is immediate and likely to result in death or serious physical injury.”
NYPD: Does not mention “proportionality.” However, its policy manual incorporates actions such as slowing things down and giving time for help to arrive within the rubric of de-escalation (see discussion below). NYPD’s explicit force policy, however, seems like a succinct version of Graham: “Apply no more than the reasonable force necessary to gain control.” (Procedure 221-02, #11.)
For a recent Police Issues post on point see “More Rules, Less Force?”
PERF: Principles #4 and #17 identify de-escalation as a central, indispensable component of police policy and practice. As a comprehensive approach to defuse encounters, it incorporates a variety of concepts and strategies including proportionality, “slowing things down,” distance and cover, and proper communications.
Click here for the complete collection of use of force essays
National Consensus: Defines de-escalation as a collection of techniques (command presence, advisements, warnings, verbal persuasion and tactical repositioning) that can reduce or minimize the use of force. While de-escalation (or at least, considering it) is required, officers have wide latitude in deciding whether to use de-escalation techniques. For example, section IV B-1 directs that de-escalation “shall” be used “when consistent with training whenever possible and appropriate.” Section B-2 instructs that persons be given time to obey directions if the delay “will not compromise the safety of the officer or another and will not result in the destruction of evidence, escape of a suspect, or commission of a crime.”
LAPD: De-escalation is not mentioned in its manual (see update below.) However, officers receive instruction on de-escalation techniques during in-service training. Still, a move last year by the Police Commission to incorporate de-escalation into official policy met stiff resistance Chief Charlie Beck conveyed his reservations diplomatically: “We absolutely believe in de-escalation. But we also recognize the difficulties of police work.” A police union official expressed his views more brusquely: “Every second counts, and hesitation will kill you. Your proposed revamping of the use-of-force policy will get officers killed, plain and simple.”
Chicago (draft policy): Chicago’s comprehensive draft rules on use of force identify a variety of de-escalation techniques (e.g., making time, keeping one’s distance) and mandate their use when doing so is possible. Again, there is abundant wiggle room. Rule II-G, for example, requires de-escalation “as soon as practicable.” Surprisingly, that apparently means after things settle down:
2. [Officers must] de-escalate as soon as practicable. Once control of the subject has been
obtained and the threat or resistance no longer exists (emphasis ours), Department members will:
a. de-escalate immediately.
b. avoid the continued use of force.
c. maintain control and be alert to any conditions that may compromise the
security or safety of the subject.
NYPD: Its use of force rules (click here and here) offer detailed guidance. For example, Procedure 221-02 defines and distinguishes between “active” resistance, “passive” resistance and “active aggression.” Officers are repeatedly urged to seek help from supervisors and specialized units (NYPD is well-known for its Emergency Response Teams) when encountering difficult persons. That is where de-escalation fits in:
DE-ESCALATION – Taking action to stabilize the situation and reduce the
immediacy of the threat so that more time, options, and/or resources become
available (e.g., tactical communication, requesting a supervisor, additional MOS
and/or resources such as Emergency Service Unit or Hostage Negotiation Team,
etc.) (221-02, pg. 1)
Officers nonetheless retain abundant leeway, with de-escalation required only “when appropriate and consistent with personal safety” (221-01 and 221-02, #2).
In Part II we’ll compare rules governing the use of lethal force, including shooting at vehicles and fleeing suspects, as well as guidelines for dealing with the mentally ill. We will also have something hopefully useful to say about information practices (a seldom-mentioned issue addressed by PERF) and the difficulty of translating good intentions into good policy. Stay tuned!
UPDATE (5/21/17): Chicago PD’s use of force policy has been finalized. Its rules on proportionality(G03-02, III, 3) are essentially the same as in the draft. De-escalation rules give abundant wiggle-room and are worded similarly to LAPD’s new policy (see below.) “Members will use de-escalation techniques to prevent or reduce the need for force when it is safe and feasible to do so based on the totality of the circumstances.”
UPDATE (4/19/17): By unanimous vote the LAPD Commission formally incorporated de-escalation into the agency’s use of force policy, “using time, distance, communications, and available resources...whenever it is safe and reasonable to do so.” Click here for the Los Angeles Times article.
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More Rules, Less Force? De-escalation First, Do No Harm Making Time