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Every time police officers are accused of killing a civilian — whether an officer shoots an unarmed man, as in the cases of Michael Brown, or an officer's actions cause someone to die, as in the cases of Eric Garner or Freddie Gray — there are two different questions: Was it legal? and Was it appropriate?
Often, what the public sees as appropriate force differs greatly from what police actually do in these situations.
The law gives police incredibly wide latitude to use force against civilians if they feel they're under threat. In theory, it's the job of police departments to come up with policies that hold cops to a higher standard for using force. And departments do give officers general instructions about using no more force than is necessary to resolve a situation, and trying to deescalate situations before they turn into crises.
But when it comes to specifics — the training that officers are given and the policies they're held to — departments don't give clear instructions for what officers ought to do. Instead, for a variety of reasons, instructions focus on what cops can do. That creates a divide between police actions and the public's perception of what is necessary or appropriate. And police officers themselves tend to feel that they should have even more flexibility in deciding when to use force, and how much force they can use, on civilians.
1) Departments want to give cops guidance about force — but their highest priority is keeping them from getting hurt
The key to understanding use-of-force policies is that, for the most part, they're not designed to set limits on police. Instead, they're designed as a way to guide police toward using appropriate types of force — which includes everything from verbal commands to lethal weapons.
Some departments' policies let officers use force in a wide range of cases and give officers a lot of flexibility to determine what type of force to use: these are called relatively permissive policies. Departments that strictly regulate when officers can and can't use force and that limit more aggressive types of force are seen as relatively restrictive.
Departments want to strike a balance between the two. A policy that's too permissive toward officers can lead to excessive-force lawsuits and angry citizens. But law-enforcement officers believe that if the policy is overly restrictive, there's more risk that an officer will be injured, or even killed, by a suspect. And officer safety is paramount for the police department.
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Two police officers at firearms training. (Boston Globe)
2) Departments face legal liability if their policies are stricter than what the law allows
The law allows a police officer to do whatever is "objectively reasonable" to neutralize a particular threat. That gives cops a lot of latitude. But police departments are allowed, even encouraged, to hold cops to a stricter standard via their use-of-force policies — which provide more guidance about what types of force officers are supposed to use and when.
The problem, says Stephen Downing, the former assistant chief of the Los Angeles Police Department, is that when a police department holds officers to a more restrictive standard than the law does, it opens up the department to lawsuits for failing to train an officer properly — even when the officer is cleared of any legal wrongdoing. Alternatively, If an officer is wounded because of a restrictive policy, he — or his union — can sue the department for failing to protect the safety of employees.
That means departments have two reasons to keep their use-of-force policies relatively permissive — they want to protect officers' safety, and they want to keep their standard as close to the legal standard as possible to avoid liability.
As a result, Downing says, "the policy boundary has pushed out to the boundary of the law, and many police departments view them as the same." In other words, police departments don't feel it's a very good idea for them to implement standards that might hold officers more accountable. They'd rather focus on what officers are allowed to do by the law.
3) Officers are trained that there's a "force continuum" — but they don't have to start at the lowest level
Pretty much every discussion of police use-of-force training starts with the idea of the "force continuum." The concept behind the force continuum is that there are a range of ways civilians can relate to police — from compliant, to resistant, to aggressive or even life-threatening. Likewise, there's a range of ways that officers can respond to civilians with force: from verbal commands through "soft" physical contact, through more painful forms of contact and nonlethal weapons, and up to lethal force.
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A use-of-force continuum developed by the Federal Law Enforcement Training Center. (FLETC)
What kind of force is appropriate, according to the continuum model, depends on what the citizen is doing. Many departments actually link the two together, teaching officers, for example, what kind of force to use on a civilian who's passively resisting arrest. But about 30 percent of departments keep the two independent and leave it up to officers to decide what level of force to use.
When talking about the force continuum, police tend to emphasize that officers aren't required to start at the lowest level of on the force continuum and go up from there. "There are obviously going to be circumstances where the threat that the officer or a member of the public might be dealing with is so great that it wouldn't make sense to start at the bottom of a force continuum," says Chris Magnus, the chief of the Richmond (CA) Police Department.
Officers are theoretically supposed to make an effort to de-escalate a situation. The force continuum doesn't help them do that. Instead, it categorizes types of civilian behavior, and then tells the officer how much force can be used and, in some cases, what type. The continuum covers what's authorized, not what's necessary. But when that's the guidance that the department gives its officers, it's hard to tell the difference between what's allowed and what's recommended.
4) There's no clear direction about what types of force are appropriate when citizens resist arrest
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When civilians use passive resistance, like this Occupy Wall Street protester, police don't always agree on what to do. (Emmanuel Dunand/AFP)
While most departments use some kind of force continuum to guide their use-of-force policies, there's a lot of variation in where they place different types of force along the continuum and how they match them to civilian behavior.
In 2012, criminologists William Terrill of Michigan State and Eugene Paoline of Central Florida University surveyed hundreds of police agencies about their force policies. They concluded: "There really is no 'commonly' used means of tactical placement in terms of force continuum policies." Among the 336 departments that taught officers which types of force to use for particular citizen behaviors, there were 203 different versions of the force continuum.
Departments are pretty consistent in what they tell officers to do when a civilian is compliant or when a civilian is attacking them. But the response to civilians who are resisting arrest — the middle of the force continuum — is less consistent. Some agencies teach cops that they're not supposed to use "pain compliance" techniques (like twisting a civilian's arm behind her back) unless the civilian is physically resisting arrest or trying to run away, and that they are not allowed to use "hard hands" (punching or kicking) unless the civilian is "physically active" (i.e. trying to hit the officer). Others say that hard hands are appropriate when a suspect is physically resisting arrest. Still others say that pain compliance is fine even when a suspect is just verbally resisting arrest or using passive resistance.
5) Cops want to be able to use more force on civilians who resist arrest
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Police want to be able to use impact weapons on resistant civilians. (Quinn Dombrowski)
In a follow-up study in 2013, Terrill and Paoline surveyed officers of three police departments on what they thought about their departments' use-of-force policy. What they found was that the officers with more restrictive policies were more comfortable with lower-level situations, but officers with more permissive policies liked the flexibility when civilians got physical.
The survey found that officers in departments with more permissive use of force policies wanted more guidance when it came to verbally or passively resistant suspects. But officers "do not want to be overly regulated as to the types of permissible hands-on or weapon-based tactics once resistance rises." In particular, officers in the Charlotte-Mecklenburg Police Department, which had the most restrictive policy of the three surveyed, felt that they were too constrained in responding to suspects resisting arrest.
But the study shows that officers' perceptions are far out of line with what the public — or the federal government — considers appropriate. The study's authors singled out one of the departments they surveyed as "a viable middle ground in terms of providing appropriate guidance and restrictiveness." That agency was the Albuquerque Police Department, which is now being supervised by the Department of Justice for excessive force. After a yearslong investigation, the DOJ concluded that the Albuquerque Police Department "engages in a pattern or practice of excessive force in violation of the Fourth Amendment."
6) Tasers were supposed to be an alternative to deadly force, but that's not how they're used
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Tasers: something to be used instead of guns, or more often? (Thomas Coex/AFP)
Thomas Nolan, a criminologist at Merrimack College of Massachusetts, was a police union official in the late 1990s and early 2000s, when Tasers and similar weapons were first being marketed to police officers. He remembers that they were initially sold as an alternative to lethal force — something that could be used in the same situations as lethal force would be, but with a better result. "What vendors were saying, and what policymakers accepted as truth, was 'You're going to avoid wrongful-death lawsuits because you don't have to use deadly force anymore to incapacitate someone, you can use Tasers.'"
That's not how Tasers are actually used by departments. They're now, says Nolan, "the default option. Cops are not considering that this is an escalation of force. The Tasers are coming out pretty quickly. Instead of ratcheting down the instances of deadly force, they're ratcheting up instances of nonlethal force."
The 2012 survey of police departments confirms that police don't see Tasers as an alternative to deadly force, but that they're not supposed to be the "default option" either. According to the authors of the study, two-thirds of departments require officers to use another type of force before using a Taser on a civilian. But Tasers are further down on the force continuum than lethal weapons are — a majority of departments put them on a level with "impact weapons" such as nightsticks. That's a level of force that's most often used on suspects who are being physical with the officer but not actually attacking.
The 2013 follow-up study demonstrated that officers felt Tasers should be used even lower on the continuum. This was actually at the root of Charlotte-Mecklenburg cops' dissatisfaction with their policy: 45 percent of the officers surveyed said they should be allowed to use Tasers when suspects were physically resisting or trying to run away, rather than just when a civilian was "physically active."
7) Cops agree that an attack — with a knife or a gun — merits deadly force
When an armed citizen is attacking a police officer — even if he's armed with a knife, not a gun — there's a broad consensus among police chiefs and departments: the officer is allowed to use deadly force. Almost all agencies covered in the 2012 survey put lethal force on its own level in the continuum — as the sole appropriate response when an officer's life might be in danger.
When two St. Louis police officers shot and killed Kajieme Powell in August, residents criticized the officer for using deadly force on Powell, who was armed with a knife, rather than using a Taser or something else to neutralize the threat. But several police and experts went out of their way to explain to me why deadly force is necessary when a suspect has a knife. "One of the biggest areas of misunderstanding that the public has is how quickly individuals with weapons can advance on an officer, and how deadly the results can be," says Magnus, the chief of the Richmond (CA) Police Department. That makes it extremely risky, he says, for officers to use a Taser on a suspect who's charging them with a knife. David Klinger, a University of Missouri-St. Louis professor who studies use of force, says he would use a Taser on someone who was armed with a blunt instrument, but, "I personally would never try to disarm someone with a knife."
Just because a citizen is armed doesn't mean he's attacking, so whether police are allowed to shoot a knife-wielding suspect depends on whether he's coming at the officer or not (or whether the officer reasonably feels threatened — which can get subjective). But there's no debate among police that killing a suspect is an appropriate response to a knife attack — another reflection of how much distance there is between what the public sees as reasonable force and what police believe.
8) "Shooting to incapacitate" is a myth
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The autopsy for Michael Brown showed he'd been shot six times. (Joe Raedle/Getty)
In principle, when a cop fires a gun at a citizen, it's so the officer can neutralize the threat — he's not shooting to kill, per se. But in the two seconds that a cop actually has to make a decision, the most certain way for him to neutralize a threat is to aim for "center mass" on the civilian's body, which is likely to be a lethal shot.
Cops in Richmond, California, have to go through firearms training once a month. But Chief Magnus says that even with that much training, the conditions an officer faces — everything from the stress of a confrontation, to the weather and the lighting — make it impractical for an officer to aim a shot somewhere other than the center of the body. "The notion that it's possible to shoot somebody just to the level that they're debilitated — to shoot a gun out of somebody's hand, to shoot them in the leg — that is the stuff of TV and movies. That's wildly unrealistic."
Magnus' department has a good track record when it comes to lethal force — Richmond officers haven't killed any civilians since 2008. (Officers shot five suspects during that period, but they all survived.) But he says that once an officer has decided to use a gun at all, he's deciding to use lethal force — and he needs to accept the consequences thereof. Even if the goal isn't to kill the civilian, "you have to accept that that is a very real possibility."
But the question is whether the officer is thinking about questions of responsibility. That's not something the force continuum teaches — it just talks about what's authorized, not if there's a better way to do things. Nolan, the former union official turned criminologist, thinks there's a second level of questions that department policies don't ask — leaving it up to the public to make sure they get answered: "Not only was it authorized and justifiable, and do we support it. But was it, under the circumstances, appropriate and necessary and warranted?"
