A primary goal of this blog is to help Law Enforcement Officers better understand—and apply if necessary—acceptable levels of force according to the “objectively reasonable” standard of Graham v. Connor. This is, after all, a contribution lawyers can make to the law enforcement community—condensing cases into useful summaries that can be used for future reference in use-of-force situations that may arise on the streets, and possibly later in a federal courtroom.
Nevertheless, many departments still train their officers to apply a departmental “Use-of-Force Continuum” policy in use-of-force situations. It can be confusing for an officer to learn and apply a “continuum” departmental standard in addition to the Graham v. Connor standard. Further, if an officer ever faces a federal lawsuit over use of force, the applicable standard will almost certainly be Graham v. Connor’s “objectively reasonable standard.” A debate over the use of these differing policies exists today in among Law Enforcement professionals.
In my view, teaching the Graham v. Connor standard makes the most sense from the officer’s point of view. This is the information he or she most needs to survive a deadly-force situation, as well as any civil lawsuit that might follow. As everyone knows, officers often face harsh career (and life) consequences if deadly force is improperly applied.
However, police chiefs and command staff must often balance an officer’s point of view and needs, against the points of view and needs of community groups. I don’t pretend to understand how this balancing act is managed in real life, but I can only imagine how hard it must be. While command staff surely must want to support their officers in every way possible, they need to also respond to community groups whose cooperation is required to decrease street violence and keep the peace in intangible, but meaningful, ways. Sometimes community interests have needs that compete with the interest of officers. I suspect this genuine and understandable dilemma may play out, to some degree, in use-of-force training decisions.
Graham v. Connor
Since the Supreme Court’s adoption of the case in 1998, Graham v. Connor has been cited in over 5600 reported federal court opinions around the country. That amounts to an average of 430 reported opinions per year–an enormous number of decisions, each under the “totality of the circumstances” of that case.
Graham requires that officers apply Constitutionally-appropriate levels of force, based on the unique circumstances of each case, in the same basic way that an “objectively reasonable” officer would use in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.
Use-of-Force Continuum Policies
By contrast, Use-of-Force Continuum policies try to give more concrete definition to link specific threat situations with specific levels of force. Sometimes (but not always) the continuum tries to apply a “least amount of force” standard, with the amount of force increasing according to the perceived level threat. One use of force continuum I have tried to understand (but must confess that I don’t) is the circular National Use-of- Force Framework for Police Officers in Canada.
The Standards Debate
As mentioned above, a genuine challenge for departments comes in teaching their officers how to apply force—should departments teach officers how to understand and apply the “Objectively Reasonable” Standard of Graham v. Connor, or should departments ask their officers to use a “Use-of-Force Continuum”? This debate has gone back and forth for some time in the 13 years following the Graham case.
The leading proponent of the “Objectively Reasonable” method of training officers is John Bostain of the Federal Law Enforcement Training Center (FLETC). Mr. Bostain argues that Use-of-Force Continuums are confusing to officers because they teach a standard that is different than what they will be judged by if ever sued in Federal Court. Mr. Bostain is surely right: Federal courts will apply Graham v. Connor to any use of force that is brought against an officer alleging a Fourth Amendment violation for illegal seizure.
Ken Wallentine, Chief of Law Enforcement for the Utah Attorney General, also makes a convincing case for municipalities to adopt the “objectively reasonable” standard as a better way to manage risk inherent with Fourth Amendment lawsuits arising from use-of-force situations.
Another outspoken opponent of the “continuum” models is retired San Jose PD Sargent and PoliceOne Comumnist Ed Flossi. Sgt. Flossi has published several articles PoliceOne, including:
- Use of force: Defining ‘reasonable’ versus ‘necessary’
- Use of force: Downfalls of the continuum model
- Use of force: Defining ‘objectively-reasonable’ force
Use-of-Force Continuum policies are often criticized as being “mechanical” applications of use of force—precisely the thing the US Supreme Court repeatedly admonishes officers not to do.
From what I have seen, departmental standards can be a side show to the real issue in a civil case: whether the officer applied force in an objectively reasonable manner as required by the Graham case. Department standards can be used to hurt an officer in cross-examination and closing argument—but will not help an officer if the departmental standard conflicts in any way with the Constitutional (Objectively Reasonable) standard.
Nevertheless, many well-respected law enforcement professionals still teach their officers to apply a Use-of-Force Continuum to use of force situations on the street, based on detailed departmental policies. A leading proponent of this approach is Dr. Lorie Fridell, Associate Professor at the University of South Florida. In a Dec. 2011 article published in The Police Chief magazine, Dr. Fridell sets out her theories of why a Use-of-Force Continuum, first adopted in the 1970’s, is still the better way for approaching use-of-force situations on the street. In the well-presented article, Dr. Fridell summarizes her argument as follows:
“By using a continuum, is leadership acting in the best interests of officers and the communities they serve?” On behalf of both groups, the authors would answer “yes.” The continuum serves both officers and communities. It provides officers with needed guidance to implement the reasonableness directive set forth in the Fourth Amendment and provides them with protection when their force decisions are reviewed by their agency. Use-of-force continuums serve communities by guiding police discretion in the use of this awesome power, preventing a return to the days of so-called “flexibility” in use-of-force decision making and riots.”
Needs of the Street Officer vs. Needs of the Community
As alluded to earlier in this article, I believe Dr. Fridell puts her finger directly on the most important issue in this debate: Use-of-Force Continuums give a valuable assurance to community groups (typically minorities) that policing will be restrained according to a defined, concrete standard, “preventing a return to the days of so-called “flexibility” in the use-of-force decision making and riots.” By setting out a detailed Use-of-Force Continuum, department chiefs and command staff can assure community groups that appropriate restraints are implemented at the departmental level. This, in turn, helps get “buy in” from community leaders that can help reduce street violence in very real ways.
But, in my opinion, the Graham v. Connor standard is a far cry from the “flexibility in use-of-force decision-making” that Dr. Fridell (understandably) worries about. From what I can see, federal courts hold individual officers to a very high standard—almost an unreasonably high standard, in my view. In a few situations cases are dismissed on summary judgment when a particular constitutional right is not established in the Federal Circuit in which the case is brought. But once the scope of a constitutional right, and its relationship to a use-of-force situation, is resolved in a particular Federal Circuit, all officers are deemed to have knowledge of that case, whether they read case updates or not. Honestly, I hardly know any lawyers that can keep up on case law developments—let alone police officers who have many other things to worry about than the latest court opinion.
So, perhaps, community groups might be more responsive to a department’s adoption of the “objectively reasonable” standard of Graham v. Connor, if they only understood the level of scrutiny typically applied under Graham. If so, then departmental command staff might be served to try to explain this standard to community groups, to get the necessary buy-in for departmental policies. I don’t know because I am not there in those meetings. My focus is the interest of officers. But it is something to consider, possibly.
Prominent Departments Adopting “Objectively Reasonable” Standard
From what we can tell, more and more departments are adopting the “objectively reasonable” standard for use of force, for many of the reasons articulated above. These include:
The leading training department adopting the “Objectively Reasonable” standard for training officers is, without question, the Federal Law Enforcement Training Center (FLETC). FLETC serves as an interagency law enforcement training organization for 91 Federal agencies, including the FBI, DEA, ICE and Homeland Security. FLETC also sponsors state and local departmental training. In addition, FLETC has oversight and program management responsibilities at the International Law Enforcement Academies (ILEA) in Gaborone, Botswana, and Bangkok, Thailand. FLETC also supports training at other ILEAs in Hungary and El Salvador.
- Los Angeles Police Department
LAPD has also adopted the “objectively reasonable” standard to use of force. According to the 2010 Use of Force Annual Report (the latest one available online), the general policy of LAPD is as follows:
Use of Force – General. It is the policy of this Department that personnel may use only that force which is “objectively reasonable” to: Defend themselves; defend others; effect an arrest or detention; prevent escape; or overcome resistance.
Factors Used to Determine Reasonableness. The Department examines reasonableness using Graham and from the articulated facts from the perspective of a Los Angeles Police Officer with similar training and experience placed in generally the same set of circumstances. In determining the appropriate level of force, officers shall evaluate each situation in light of facts and circumstances of each particular case. Those factors may include but are not limited to:
–The seriousness of the crime or suspected offense;
–The level of threat or resistance presented by the subject;
–Whether the subject was posing an immediate threat to officers or a danger to the community;
–The potential for injury to citizens, officers or subjects;
–The risk or apparent attempt by the subject to escape;
–The conduct of the subject being confronted (as reasonably perceived by the officer at the time);
–The time available to an officer to make a decision;
–The availability of other resources;
–The training and experience of the officer;
–The proximity or access of weapons to the subject;
–Officer versus subject factors such as age, size, relative strength, skill level, injury/exhaustion and number officers versus subjects; and,
–The environmental factors and/or other exigent circumstances.
As an ongoing thought leader in law enforcement, LAPD’s adoption of the Graham v. Connor “objectively reasonable” standard seems likely to continue momentum in favor of this standard of training.
Use-of-Force Continuums were first adopted by departments in the 1970’s to restrain “flexible” law enforcement. But with Tennessee v. Garner (1985) and Graham v. Connor (1989), the United States Supreme Court stepped in to provide Constitutional restraints on law enforcement. But the Supreme Court has repeatedly refused to apply or adopt “mechanical” use-of-force guidelines that are often urged by counsel arguing cases. The Supreme Court stated in the Graham case:
“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 calculus of reasonableness must embody allowance for the fact that police 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. The test of reasonableness is not capable of precise definition or mechanical application.”
Because this is the standard that officers are held to in any case judged by a Federal Court, and because this is the standard the US Supreme Court has repeatedly endorsed and required, it makes sense that departments follow the lead of FLETC and LAPD and adopt the Graham v. Connor “objectively reasonable” standard in place of outdated and (often) complex “Use-of-Force Continuum” policies.