The Police Chief - December 2011 - (Page 20)

Background Taking the Straw Man to the Ground: Arguments in Support of the Linear Use-of-Force Continuum By Lorie Fridell, Associate Professor, University of South Florida, Tampa, Florida; Steve Ijames, Major (Retired), Springfield, Missouri, Police Department; and Michael Berkow, President, Kroll Security Group, New York, New York, and Deputy Chief (Retired), Los Angeles, California, Police Department For many decades, law enforcement agencies have sought better methods for training their officers on how and when to use force. Continuums were first created and used in the early 1970s by trainers who were looking for ways to convey to officers when to use force and how much force to use. The models have evolved over the years, producing an array of use-of-force continuums that vary by shape; by number, nature, and names for levels; by officer- versus subject-focus; by references to escalation and de-escalation; and so forth. While the depictions have varied, the intent has been the same: to guide officers in terms of the appropriate level of force to use in the circumstances they are facing. A key aspect of the models is that they link categories of subject resistance to types or categories of police force. The term “continuum” is used in this article to refer to models that have this characteristic. Particularly in the last few years, there has been a call for—and some movement toward—doing away with the use-of-force continuum. Some professionals call for its removal from policy but for its retention as a training tool; others call for the continuum to be expunged from a department’s policy manual and training curriculum. As outlined more fully further on in this article, the proponents of this perspective argue in favor of a continuumless “just be reasonable” standard (hereafter “JBR”). In both continuum agencies and JBR agencies, officers learn that their use of force must be reasonable in light of the totality of the circumstances. In a continuum agency, the training in “reasonableness,” or the discussion of it in policy, includes reference to the continuum conveying that, generally speaking, particular levels or categories of officer use of force will be used to respond to particular levels/categories of subject resistance. In a JBR agency, officers learn (1) how to make the decision to use force and (2) the factors that would impact on their decision making. Thus, for instance, the defensive tactics curriculum of the Florida Department of Law Enforcement (FDLE), used to teach recruits in Florida, has maintained discussions of reasonableness and totality of the circumstances but, in moving to JBR in 2009, replaced the Response to Resistance Matrix with the Force Guidelines. The guidelines articulate subject resistance levels and officer response options, but do not convey how the two might be linked. The trainees are taught how to make the force decision in the context of subject resistance and situational factors. Bostain, a trainer at the Federal Law Enforcement Training Center (FLETC) and a major spokesperson for the JBR camp, argues that use-of-force continuums are not based upon the standard of reasonableness that was set forth in Graham v. Connor. He writes, “the most obvious pitfall is that Use-of-Force Continuums are not typically based upon the [“objectively reasonable”] standard established by the U.S. Supreme Court in Graham v. Connor.”2 Let us reassure the chiefs and sheriffs with continuums that they have not been violating the Fourth Amendment all these years. Continuums not only reflect the reasonableness standard set forth by the court, but they give it needed substance. Peters and Brave acknowledge that continuums had value historically, noting that “they were originally designed to provide operational guidance to officers regarding when and how much force can be applied in given situations.”3 These authors claim, however, that continuums are no longer needed now that Graham v. Connor has set forth “clear force standards.”4 The authors do not agree that Graham’s direction to be “objectively reasonable” in light of the “totality of the circumstances” provides clear standards for officers that can be transferred straight from the law book to the street. Continuums that link categories of subject resistance to levels of police force reduce the ambiguity associated with the vague term “reasonableness.” Continuums are designed to facilitate an officer’s understanding of what “reasonable” means. They represent Arguments for “Just Be Reasonable” and Rebuttals to Them D uring the last several years, there has been a resurgence of the debate surrounding the linear use-of-force continuum. A number of professionals have argued that force continuums must be laid to rest; they argue in favor of a continuumless “just be reasonable” standard. The “just be reasonable” proponents have made their arguments in articles and conferences with way too little rebuttal to what the authors will argue below are specious and unsupported claims. Shults writes that “the use-of-force continuum is dying a slow death.”1 To paraphrase Mark Twain, the authors believe that the reports of the continuum’s demise are, in fact, greatly exaggerated. They also believe a movement in that direction can be thwarted if the unsupported claims and the straw-man arguments that have characterized the “just be reasonable” perspective are laid bare. In an era in which evidence-based policing is becoming the norm, the authors are surprised and dismayed at the traction the “no continuum” promoters have achieved absent a shred of research. In this commentary, the authors provide some background for the discussion and then list and respond to each argument made in favor of the “just be reasonable” perspective. They argue that agencies should have a use-of-force continuum that is conveyed in both policy and training. THE POLICE CHIEF/DECEMBER 2011 20

Table of Contents for the Digital Edition of The Police Chief - December 2011

President’s Message: The Time for a National Commission Has Come
Legislative Alert: National Criminal Justice Commission Legislation Falls Short of Passage
IACP Foundation: Fueled Up to Fund the Foundation: Harley-Davidson Raffle Kicked Off at Conference
Chief’s Counsel: Postincident Video Review
From the Assistant Director: The U.S. Secret Service Partners with State, Local, and International Law Enforcement to Pursue the World’s Most Wanted Cybercriminals
Advances & Applications
Taking the Straw Man to the Ground: Arguments in Support of the Linear Use-of-Force Continuum
How Police Can Use Hospital Laws to Speed Processing in Hospital Emergency Departments
On Choosing the Right Operational Police Physician
Report of the 118th Annual IACP Conference: Chicago
Board of Officers
General Assemblies
IACP Business
Exhibit Hall
Special Events
Thank You, Chicago
Life Members
New Members
Exhibitor Update
Intelligence-Led Policing: The Future Is Now
“Just a Volunteer”: Supporting An Agency’s Volunteer Program through Difficult Times
Providing Effective Policing for Aboriginal Communities
The IACP and Alcatel-Lucent Present International and Domestic Police Officer of the Year Awards
2011 Author Index
2011 Subject Index
Technology Talk
Index to Advertisers
Highway Safety Initiatives

The Police Chief - December 2011