The Could’ve, Would’ve, Should’ve Use of Force Standard

Nationwide the Graham Standard is under attack, & that should concern every peace officer

By Peter Ebel  |   Mar 12, 2019

Despite exhortations to institute a higher police use of force standard than Graham v. Connor –including from within our own profession—the law of the land remains that 1989 landmark case. Thank God.

But the contest over the objective reasonableness standard continues to grow. And we in this noble profession had better pay attention. Moreover, we must do all we can to defend the case law that has guided our actions for some 30 years.

The U.S. Supreme Court, in an opinion dated Jan. 19 of this year, spanked what is arguably one of the most-reversed federal courts in the land. It sent a message that the standard of objective reasonableness in tense, uncertain, and rapidly evolving situations is still the benchmark by which they must judge these cases.

Background

In City of Escondido v. Emmons, #17-1660, 139 S. Ct. 500, 202 L. Ed. 2d 455, 2019 U.S. Lexis 11, 2019 WL 113027, the high court was given these facts: Responding officers to a reported domestic violence incident heard yelling and calls for help. No one responded to the officers’ knocks at the location, where two children were known to be inside. A male opened the door, and tried to walk out, while attempting to close the door. Because the officers heard what they believed was a confrontation inside, and wished to check on the welfare of the residents, they took the man to the ground and temporarily handcuffed him without striking him. He was not injured and was arrested for the misdemeanor offense of resisting an officer. Within minutes, he was helped up by the officer. The incident was recorded on video.

The force used was minimal, but the Ninth Circuit held that it was excessive. The Supreme Court reversed, saying the Ninth did not follow legal precedent by failing “to properly analyze whether clearly established law barred (the officer) from stopping and taking down (the suspect) in this manner as he exited the apartment.” The court remanded the case for the Ninth Circuit to analyze whether the officer is entitled to qualified immunity in the civil lawsuit.

These are dangerous times for our profession, ladies and gentlemen. Graham is constantly reviewed, and will continue to be tested by all courts, including the Supreme Court. But some of the danger to this standard comes from within our own communities and—sadly—our own profession.

For just a quick review, here is the Reader’s Digest version of Graham: “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.”

“Activists” challenge the “why” of a use-of-force incident and some have proposed that agencies adopt the standard of “minimum” force rather than the “objectively reasonable,” set forth by Graham. A police sergeant from Scotland suggested it in the “Guiding Principles on Use of Force,” a 2016 report by the Police Executive Research Forum (PERF).

Numerous court decisions have affirmed that officers may use that level of force that ENSURES they win, not squeak by in a close contest. No law requires us to use “minimum” force. Using the minimum response—versus one that is reasonable under the circumstances—could mean winning, perhaps, by the skin of your teeth. That’s akin to suggesting an acceptable loss ratio for officer injuries and deaths. If it is in your policy, get busy on a revision and use the “find and replace” command and insert the words “objectively reasonable.”

If we don’t, then what’s next? You used excessive force because you didn’t wing him in the arm as he came at you with a machete. You didn’t have to shoot him center mass.

PERF criticized the Graham standard. In part, it said “The Graham decision offers little guidance . . . on how police agencies should devise their policies, strategies, tactics, and training regarding the wide range of use-of-force issues.”

PERF goes on to say that, in Graham, “the Supreme Court provides broad principles, but leaves it to individual police agencies to determine how to incorporate those principles into their policies and training, in order to teach officers how to perform their duties on a daily basis.”

Yes. And the problem is what? Do we want some type of bright-line rule that paints officers into a corner and assumes that all use-of-force situations are the same? That this can be taught from a textbook or even a playbook? Use of force is just not that simple. It is subjective, dependent on the perception of the officer at the time he or she used that force. Training can assist in making good decisions, based on perception in use of force situations.

But they will never be pretty. It’s not like television. It usually results in bruises, cuts, broken bones, blood, unconsciousness, and even death. It would be great if people would just give up when we tell them they are under arrest. But they don’t.

No. 2 of PERF’s 30 principles said “Agencies should continue to develop best policies, practices, and training on use-of-force issues that go beyond the minimum requirements of Graham v. Connor.”

Train, Better

I agree that we should strive to train our personnel for smarter use of force. Train them to employ—when time permits—technology, tactics, communication and even just more manpower to solve a problem as humanely as they can. We all agree on that, I think.   

Some agencies have adopted training that incorporates a “tactical pause” when the situation permits, and have reduced officer-involved shootings as a result. This is a superb tactic that instills a mindset to slow things down and not rush into a situation that doesn’t require it. Time and distance are often your friends. That is a common-sense approach that prevents the unnecessary escalation of a use of force situation.

We must train officers to be competent and confident in a wide range of force options and techniques. I see a trend among young officers not wanting to handle a situation with hands-on techniques. They seem overly dependent on electronic control devices (ECDs) and forget that they have other less-lethal tools available. When the ECD fails (often because of user error), they have to be able to transition to Plan B.

Their need to fill their hand with something is exacerbated when the preferred response becomes a firearm. Too often, lately, I am asked the question by academy and rookie officers about shooting a suspect who simply bum-rushes them. They seem to want the answer that doesn’t require them to touch the suspect.

And on the subject of training, don’t fall for myths perpetuated by some people selling the concept of deescalation as if it were magic pixie dust that can be sprinkled on a situation to make it all better. While I agree that deescalation is a tool that we should attempt when time and circumstance permit, there are necessary elements for it to be successful. Those are containment, communication and compliance. It is unlikely to apply to a drug-crazed maniac, naked in the middle of the street at 3 a.m., holding a crowbar in his hand. If the suspect is mobile, if only on foot, containment is necessary and could escalate the situation. If the officer cannot contain him, he or she cannot communicate with him.

I recently attended deescalation training conducted by a well-thought-of group. I watched as the trainer clearly applauded bad—even unsafe—tactics during a scenario where a suspect with a knife got within 15 feet of the officer, who didn’t even draw his gun or communicate with his partner to cover him with his. When questioned about his proximity to the armed suspect, the officer replied “Well, I felt comfortable.” I don’t think he would have felt comfortable with that edged weapon sticking out of his chest. Yet the instructor told him “good job.”

We need to constantly explore a better way to approach use-of-force situations. For the safety of our people, and those we have sworn to protect, it’s a must. But the effort to move beyond Graham is a danger to our profession. Hair-brained ideas abound and politicians are trying to force-feed them to us via legislation.

Conclusion

This comes at a time when police agencies across the country are struggling with recruiting crises. Vacancies and manpower shortages abound. Some agencies have lowered their standards for hiring. All of those issues threaten the safety of the public and our officers.

We need leaders to defend the standards set forth by the Graham decision while at the same time supporting common sense upgrades to our training, technology and tactics. We need them to speak confidently and competently about use of force to educate the public and make them understand that the perfect world of TV cops doesn’t exist.

Moreover, we need our profession to not buy into the could’ve, would’ve and should’ve standard. That type of Monday-morning quarterback hindsight is employed by people who think use of force occurs in a vacuum, on a wrestling mat or in the office of someone who has never tried to put the cuffs on a person who simply does not want to be put into handcuffs. They make these judgments from a stuffed armchair in air-conditioned comfort.

For some odd reason, they fail to understand the “reasonable” standard of Graham. And what is wrong with “reasonable”? That word resonates with reasonable people. We need more of those.

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Peter Ebel

Pete Ebel is in his 30th year as a law enforcement officer and is a lieutenant for a large South Florida Sheriff’s Office, where he serves as the supervisor of major cases in the Narcotics Division. He has served as the commander of the Homicide and Firearms Investigative Units, the executive officer for the Violent Crimes Division, the Tactical Unit, and Gang Unit in his 10 years with the agency. He began his career with the Lake Worth Police Department, which merged with the sheriff’s office in 2008. At LWPD, Pete served as a Road Patrol Officer, Tactical Unit/Street Crimes officer, Field Training Officer, Detective, Sergeant, Training Coordinator and Lieutenant. During his last five years at LWPD, he was the commander of the Special Operations Division, leading the Tactical / Street Crimes Unit, Narcotics Unit, K9 Unit and SWAT Team. Pete had previously served as an operator and team leader on the SWAT Team.  Pete has been an instructor for 21 years, and is a state-certified in firearms and general topics. He teaches academy and advanced classes, as well as nationwide and internationally for the Team One Network, a tactical training company. Pete specializes in use of force, excited delirium, tactics and safety. He has presented at three ILEETA Conferences, at the 2018 Illinois Tactical Officers Association conference and at the 2018 European Polizeitrainer in Deutschland Conference in Nuremberg, Germany. Pete was recently certified as a Force Science Institute analyst.
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