Training without force continuums: Learn to love the law

By John Bostain, Senior Instructor for Use of Force
Federal Law Enforcement Training Center (FLETC)

There is increasing debate in the law enforcement community concerning Use of Force continuums and whether they have outlived their usefulness as training tools. Nearly every week I receive e-mails and phone calls asking me, “Why did the Federal Law Enforcement Training Center (FLETC) discontinue teaching the Use of Force Model?” “Is it possible to effectively teach use of force without one?” “Are there disadvantages of using a continuum in training and in agency policies?”

The purpose of this article is to try to answer those questions and hopefully provoke continued discussion about this issue. For the purpose of this article, the words “continuum” and “model” will be used interchangeably to refer to any graphic representation of the escalation and de-escalation of force.

Why did FLETC discontinue teaching the Use of Force Model?

The Federal Law Enforcement Training Center discontinued teaching the Use of Force Model because models and continuums are inconsistent with the Fourth Amendment and U.S. Supreme Court case law. Regardless of whether one supports the use of continuums in training, there should be no debate about the legal standard governing use of force by law enforcement officers in the United States.

In Graham v. Connor, the U.S. Supreme Court declared use of force to be a Fourth Amendment issue subject to an “objective reasonableness” standard. Specifically, the court said:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene. 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 "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. [490 U.S. 386, 396-97 (1989)]

In Graham, the Court further stated, "the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application." Models and continuums, then, are an attempt to accomplish what the Supreme Court calls impossible! Proper application of the reasonableness standard, according to the Court, “requires careful attention to the facts and circumstances of each particular case.” Rather than accommodate “the facts and circumstances of each particular case,” however, continuums force officers to pigeonhole a suspect’s actions, and the officer’s responses to those actions, into four or five narrowly defined, subjective categories.

In addition, the few available categories, such as “passive resistance,” “active resistance,” and “assaultive,” are defined poorly, if at all. Each ambiguous category of subject action then correlates with a finite number of specific officer responses.

Continuum-based thinking does not reflect – and cannot reliably account for – the “tense, uncertain, and rapidly evolving” circumstances faced by an officer during a use of force incident. Based on the same suspect actions, officers may have a wide range of reasonable responses available. Consider this example:

An officer has a domestic violence arrest warrant for Fred Jones. Jones has a known history of resisting arrest and assaulting police officers. The officer is making the arrest by himself, at approximately 10:00 at night, with no back up readily available. When he approaches the house, he sees Jones out in his front yard. Jones stands about, 6’2” and weighs about 225 lbs. The officer identifies himself as a police officer and says, “Mr. Jones, you’re under arrest.” Jones responds by turning towards the officer, pointing his finger at him and saying through clenched teeth, “Screw you, I’m not going back to jail.”

So, where do Jones’s actions fall on a Use of Force continuum?

The answer is…it depends! It depends on whom you ask, and what continuum you are trying to apply. Some continuums classify Jones’s actions as “passive resistance,” others label them as “active resistance,” and still others label them as “assaultive.” There are literally dozens of different continuums in use today, and there is much disagreement on exactly how to define each “level” of resistance.

The disagreement is understandable, since any suspect’s actions must be viewed in light of the surrounding circumstances before they can have any real meaning. Trainers can (and do) debate for hours about what actions fit into which “level.” If it takes trainers hours to apply a continuum with 20-20 hindsight, how can such a tool assist an officer in making “split second judgments” during use of force encounters?

In the example involving Mr. Jones, an officer that is highly experienced with defensive tactics may decide to control Jones using an empty hand control technique. Another officer under the same circumstances may decide to spray him with OC. A third officer, maybe one much smaller in stature than Jones, may decide to use an electronic control device such as a TASER. A fourth officer may handle situation by using an extendible baton. So, which officer is right?

Applying only the Fourth Amendment standard, the answer is that all of those responses could be reasonable based on the totality of circumstances. I have not yet seen any model or continuum that would guide an officer to that answer. Under the constitutional standard, the issue is not where Jones’s actions fall on a continuum. Rather, the only question to be addressed is whether the officer’s response to Jones’s behavior was objectively reasonable [See Scott v. Harris, 127 S. Ct. 1769, 1776 (2007)].

In the recent Supreme Court case of Scott v. Harris, the Court reiterated the impossibility of reducing use of force to a static model. In examining an application of deadly force, the Court noted that “although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of ‘reasonableness.’” When we know so well what the courts will require, why train our officers with anything else?

Is possible to effectively teach Use of Force without a continuum? Yes.

In 2005, the FLETC discontinued using the Use of Force Model in basic training programs. We replaced the model by increasing legal instruction (focusing on Graham v. Connor), dispelling common myths about use of force, enhancing mental preparation training, and most important, enhancing use of force report writing and articulation skills.

A major benefit of teaching use of force without a continuum is the reduction of unnecessary hesitation by officers in determining which force option to employ in critical incidents. Hesitation is often caused by trying to apply a structured, unyielding, cognitive tool such as a continuum, to a stressful, continually changing, emotional situation like a use of force incident. Even the most ardent supporter of continuums can agree that use of force incidents do not occur in the nice, neat, structured way that continuums and models imply.

In November 2007, I received a call from a former student who provided a first-hand evaluation of how well our training can be applied in the field. The former student, now an agent, had recently been involved in a deadly force incident. After the agent described the factually complex incident to me, he expressed his appreciation for the use of force training we had provided.

His initial use of force training in 2001 utilized a use of force model, but he had more recently attended our updated program. The agent said his solid knowledge of the constitutional standard and his level of mental preparation allowed him to react to the deadly threat in a split second. He specifically stated that if he had attempted to make mental recourse to a use of force model, he would have reacted too slowly and been injured or killed.

The agent credited the training program without the model as the reason he was able to act quickly and win this violent encounter. I cannot remember a time in my law enforcement career when I heard someone say “that use of force continuum saved my life.”

There are disadvantages to using continuums in training and in agency policies.

In addition to being inconsistent with U.S. Supreme Court case law and causing unnecessary hesitation, continuums have other drawbacks. Supporters argue that continuums are a necessary tool to educate juries and civilians about use of force. But exactly what does a model teach juries and civilians? Rather than build a case around them, police defense attorneys often move to have agency use of force policies excluded from evidence, particularly if the policy contains a model.

Models are rigid and static, while the incident leading to the use of force is inevitably fluid and complex. When use of force models are introduced in a trial involving allegations of excessive force, the jury is led to believe that police officers must adhere to these overly rigid standards even when doing so would put the officer in great peril. The end result is an officer who acts lawfully in accordance with the Fourth Amendment, but is hamstrung in court by a multi-colored diagram. The false appearance of impropriety created by reference to a model may be what the jury focuses on when making its final decision. If we truly want to educate juries and civilians, we would be better served by educating them about what the law really is.

Another disadvantage of training with continuums is that officers become dependent upon them to explain a use of force. When continuums are included in training and policies, the resulting reports tend to focus on levels of resistance and levels of responding force. Officers write to fit the model, stating, “the subject was non-compliant” or “the suspect became assaultive.” Such statements articulate virtually nothing about the suspect’s specific actions, and cannot – without more – establish whether the officer’s actions were reasonable.

When officers are not permitted to rely upon a continuum, they put more effort into describing specific suspect behaviors and the totality of circumstances they faced at the moment force was used. The resulting report (and often the resulting testimony) will articulate the facts of the incident rather than simply recite the vague category headings of a model. It is only by careful articulation that the officer can provide a court with the facts it requires, such as “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.” [Graham, 490 U.S. at 396.]

The debate about continuums will not end with the publication of this article. Above all, it is important to continuously reexamine our training and ask, “Are we acting in the best interest of the officer?” If the answer is no, it is time to consider a change.

Source: CaliberPress Street Survival Newsline