PERF PUBLISHES TROUBLING “PRINCIPLES” CONCERNING USE OF FORCE
On January 29, 2016, the Police Executive Research Forum (“PERF”) issued a 12-page policy statement entitled “Use of Force: Taking Policing to a Higher Standard; 30 Guiding Principles.” In it, PERF basically advocates 13 separate policy recommendations, concerning tactics, training and equipment.
Several of the policy recommendations are troubling and would, if implemented, potentially pose significant liability exposure to adopting agencies, as well as deviating from existing law governing use of force as established by the United States Supreme Court almost 30 years ago.
POLICY RECOMMENDATIONS
The first principle is that “The sanctity of human life should be at the heart of everything an agency does.” (Emphasis in original.) PERF further states that “Agency mission statements, policies, and training curricula should emphasize the sanctity of all human life—the general public, police officers, and criminal suspects—and the importance of treating all persons with dignity and respect.”
It is difficult to imagine that any law enforcement agency would argue with the underlying premise of this statement. Moreover, it is likely that virtually all agencies already have such language set forth in their policy manuals or mission statements.
However, the second policy principle set forth by PERF is extremely problematic; it states that “Departments should adopt policies that hold themselves to a higher standard than the legal requirements of Graham v. Connor.”
PERF further states that “This landmark decision should be seen as ‘necessary but not sufficient,’ because it does not provide police with sufficient guidance on use of force.”
Graham v. Connor, 490 U.S. 386 (1989), is, of course, the United States Supreme Court decision establishing the standard by which use of force is judged under the Fourth Amendment. Graham v. Connor provides that “the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”
This “guiding principle” pronounced by the United States Supreme Court has been relied upon by law enforcement agencies in decision making for nearly 30 years. Since the Supreme Court decided Graham v. Connor, it has been cited in subsequent case law interpreting the “objectively reasonable” standard in a multitude of factual contexts approximately 20,000 times.
The Graham Court held that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application 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 officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Accordingly, it is difficult to accept PERF’s conclusion that this standard “does not provide police with sufficient guidance on use of force.” In addition, instead of relying upon this long time established standard, PERF is recommending that individual agencies adopt individual policies setting forth when their officers can use force.
The third guiding principle also creates great concern: PERF states that “Police use of force must meet the test of proportionality.” (Emphasis in original) “In assessing whether a response is proportional, officers must ask themselves, ‘How would the general public view the action we took? Would they think it was appropriate to the entire situation and to the severity of the threat posed to me or to the public?’” (Emphasis added.)
In other words, PERF is endorsing a concept that a law enforcement officer must consider whether his or her actions would pass scrutiny in the court of public opinion, rather than under standards imposed by courts of law.
That principle would also appear to contradict instructive language set forth in Graham v. Connor that 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” and that 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.”
PERF’s recommendation also begs the question of safety implications for officers who pause in their actions, while coping with a combative suspect, to consider how the public may later perceive their actions.
PERF further recommends that law enforcement agencies adopt a policy that strictly prohibits “shooting at or from a moving vehicle unless someone in the vehicle is using or threatening deadly force by means other than the vehicle itself.”
While most agencies have guidelines regarding firing at moving vehicles, PERF makes the recommendation to strictly prohibit such action despite the recent United States Supreme Court decision of Mullenix v. Luna, 136 S. Ct. 305 (2015). In that case, the Court held that a police officer was entitled to qualified immunity for his conduct in shooting and killing a reportedly intoxicated fugitive who was fleeing in a vehicle at high speed. The Supreme Court analyzed the use of force based on the facts confronting the officer at that time.
The recommendation also ignores another recent United States Supreme Court case entitled Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), in which the Court held that an officer acted reasonably when he fatally shot a fugitive driving a car who was intent on resuming a car chase that posed a deadly threat for others on the road based upon the manner in which the fugitive drove the fleeing vehicle.
In sum, the law on this issue provides that it is legally permissible, in some circumstances, to shoot at a moving vehicle to eliminate the immediate threat of serious bodily injury or death posed by the driver of that vehicle based upon the manner in which the driver is driving. PERF’s recommendation would remove all discretion from law enforcement officers confronting like scenarios.
Several other recommendations by PERF are constructive and likely already endorsed in agencies policies. These guiding principles include the importance of de-escalation, immediately rendering first aid to injured suspects, the duty to intervene by officers to prevent excessive use of force by other officers, the importance of documenting use of force, and the review of critical incidents by those with specialized training. However, not all of PERF’s policy recommendations are so non-controversial.
TRAINING AND TACTICS
Several of PERF’s recommendations concerning training and tactics address important issues that most agencies are already cognizant of and taking active steps to foster.
For example, PERF advocates that agencies develop and provide training regarding de-escalation techniques, the importance of effective communication in de-escalation of incidents, the importance of comprehensive training concerning dealing with members of the public with mental health issues, and the importance of community-based mental health outreach and crisis teams in effectively dealing with incident involving mental health issues.
PERF further emphasizes the significance of supervisory response to critical incidents, team training to enhance performance, and scenario-based training to provide enhanced tools to law enforcement officers in the field.
Unfortunately, PERF also takes positions on training and tactics that seem somewhat counter-productive to officer safety. For example, in guiding principle 16, PERF states that agencies should “Use Distance, Cover, and Time to replace outdated concepts such as the ‘21-foot rule’ and ‘drawing a line in the sand.’” (Emphasis in original.)
This principle further provides that “Agencies should eliminate from their policies and training all references to the so-called ‘21-foot rule’ regarding officers who are confronted with a subject armed with an edged weapon.” The seeming implication of this language is that numerous agencies have policies providing that it is permissible to shoot a suspect wielding an edged weapon merely because that suspect comes within 21 feet of a law enforcement officer.
PERF’s so-called “21-foot rule” arose from a training exercise originally developed by Lt. John Tueller, a firearms instructor with the Salt Lake City Police Department, in 1983, who concluded after running the drill a number of times that a knife-wielding suspect could fatally engage an officer armed with a holstered firearm from a distance of approximately 21 feet.
The drill was designed to illustrate to officers the “reactionary gap,” a human factors formula that compares action versus reaction. In other words, it was intended as an educational tool so that officers would be aware of the physiological delay in reacting to a suspect’s action so that officers took that factor into consideration in maintaining distance from those suspects armed with edged weapons.
Credible use of force instructors have never taught that it is permissible to shoot a suspect armed with an edged weapon based solely upon the fact that the suspect comes within 21 feet of the officer. PERF’s recommendation would seem to undermine what continues to be an important tool designed to foster officer safety.
HOW THIS AFFECTS YOUR AGENCY
While many of PERF’s recommendations are laudable, as noted above, several of its recommendations pose significant concerns from both a legal and officer safety perspective.
PERF’s recommendation that agencies adopt policies concerning use of force that differ from the “objectively reasonable” standard articulated by the United States Supreme and inferior courts for approximately 30 years is particularly troubling. If followed by agencies, this approach would lead to a number of differing and potentially conflicting standards governing use of force throughout the country. It is difficult to conceive how this would provide beneficial “guidance” to law enforcement officers concerning use of force.
In addition, while an agency’s policy does not establish the standard of care for negligence claims against that agency, pursuant to Lugtu v. California Highway Patrol, 26 Cal. 4th 703 (2001), it may nevertheless be considered as evidence by a jury in determining whether or not an officer was negligent in a particular case.
Accordingly, if your agency adopts a policy that imposes a higher standard than that imposed by the United States Supreme Court, that higher standard may be used to determine that your officer acted negligently in a particular circumstance. This has obvious liability implications.
As with all legal issues, and particularly with respect to these important policy and training issues on use of force, it is important to seek out and secure advice and guidance from your agency’s legal advisor prior to taking action.
As always, if you wish to discuss this matter in greater detail, please feel free to contact either Martin J. Mayer or Jim Touchstone at (714) 446 -1400, or via email at mjm@jones-mayer.com and jrt@jones-mayer.com, respectively.
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