Use of Force – Part 2 #FOP #FOPNO #NOPD

In Part 1, we took a quick look at the Supreme Court’s ruling in Graham v. Connor, the case which sets the legal standard for judging the use of force by law enforcement officers.  In this part I am going to discuss reporting the Use of Force.

The question of what constitutes a use of force is open to debate.  Some have argued that the mere presence of a uniformed officer is a use of force.  That debate is less important than what constitutes a reportable use of force.  I would suggest that law enforcement officers often report the debatable uses of force through conventional means on a regular basis (incident reports, etc.).  When is it required that the use of force be specially documented as such?

Based on the NOPD Consent Decree, it appears that anything more than unresisted handcuffing will require documentation as a use of force (of course there is always a grey area — what constitutes unresisted handcuffing?).

Hand control or escort techniques applied for the purpose of handcuffing or escorts that are not used as pressure point compliance techniques, do not result in injury or complaint of injury, and are not used to overcome resistance, are not reportable uses of force.

New Orleans Police Dept. Consent Decree Paragraph 77.

As I mentioned in Part 1, the Supreme Court held that a use of force incident by a law enforcement office should be analyzed as a 4th Amendment “seizure.”  There can be more than one seizure in a particular interaction.  What is a seizure?

A governmental termination of movement by a means intentionally applied.  A seizure requires a willful act, not an unknowing one.

Brower v. Co. of Inyo, 489 US 593 (1989).

A seizure can occur in many ways:

  • Traffic Stop
  • Investigative Stop
  • Arrest

The intentional means applied could be:

  • “STOP!”
  • Handcuffs
  • Baton
  • Firearm

A seizure must be objectively reasonable:

  1. At its inception
  2. The manner it was effected
  3. Its duration

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.

Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (U.S.N.C. 1989)

When analyzing a use of force, the court must envision a reasonable officer and ask “Based on the totality of the facts and circumstances, could such an officer believe that the force was reasonable?”

Some basic suggestions:

  1. Use active voice instead of passive voice.
  2. Use action verbs to describe what happened
  3. Use facts, not conclusions

Active Voice v. Passive Voice

With active voice, the subject of the sentence performs the action expressed in the verb.  “The dispatcher notified the officer of the pending call.”

With passive voice, the the subject is acted upon.  “The officer was notified of the pending call.”

Active voice tends to make writing clearer to the reader.  In the passive voice example above, it is not clear who notified the officer of the pending call.  This could be important information to include.  “Witness #1 told the officer that the subject had a gun.”  “The officer was told that the subject had a gun.”  Again, the active voice example provides more information in a clearer manner.

Action Verbs

Use action verbs to describe what you observed.  “Officer Jones saw Suspect #1 discard a small cellophane package on the sidewalk.”  “Suspect #1 ran toward a red Ford Thunderbird.”  “Suspect #1 swung a sledge hammer at Officer Jones.”  “Office Jones heard Suspect #1 climbing the fence.”  The key is to relay facts in clear language.

Facts not Conclusions

Since the test employed for 4th Amendment seizures is a test of objective reasonableness, only the facts are important.  The conclusions or beliefs of the officer effecting the seizure are irrelevant to the analysis, unless they are supported by facts.  “The Officer believed the subject was drunk.” –subjective conclusion.  “The Officer believed the subject was drunk because the subject had trouble maintaining his balance and was holding a half-empty fifth of vodka.” — conclusion supported by objective facts.

This is also related to the use of “pat language” which was prohibited by the NOPD Consent Decree.  “Pat language” is less descriptive of the facts and more descriptive of the conclusions drawn by the officer.  The Use of Force Reporting Guide which you can find by clicking this sentence contains some good examples on the second page.

Facts make force reasonable. The objective reasonableness test requires officers to rely on their senses – or what they saw, heard, smelled, tasted, or touched – and then articulate a factual basis for the seizure. Was the seizure reasonable – meaning reasonable at its inception, in the degree of force used, and in its duration?

The key is being able to help anyone, including a judge or jury, visualize what happened.

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