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Articulating Use of Force in the Field and in the Courtroom – Part 3

Posted on Tuesday, August 10, 2010 at 12:00PM
Posted by Michael D. Schwartz, Esq.

Part 3 – Articulating Use of Force

Introduction: If you can remember back a couple of months ago to my first article, part 1 of “Articulating Use of Force in the Field and in the Courtroom,” (PORAC News, June 2010 edition), we spoke about a case of a “combative” juvenile who, after an Estes robbery, fought with store security, your partner and you! Fast forward to the suspect kicking out your partner’s patrol car window; fighting in the sally-port; fighting in the hallway; and now banging his head, kicking and punching cell walls, and you’re left with a quandary:

Do I go in and put an end to him hurting himself and put myself at risk, or stay out, let him maybe “cool” down, or wait for a supervisor and risk the suspect (juvie, don’t forget) seriously injuring himself? Do the letters “IA” mean anything to you? Add to that boiling cauldron that when you open the door, Taser in hand, he makes the all-so-common “furtive movement.” So, naturally, you Tase him. And what’s your description in your supplemental report? Use-of-force report? Internal Affairs investigation? “He was combative, so I deployed my Taser.”

Next question: What’s your description to your attorney in your criminal case for violation of Penal Code Section 149, Battery Under Color of Authority?

In the above example, the decision to Tase a suspect in a holding cell after the officer opened the door, i.e., opened Pandora’s Box, should have a bit more detail than simply, “He was combative.” Because once a department decides that there may have been misconduct — in this scenario, excessive force — it is nearly impossible to change their minds (Obviously the feeling is that the wonderful description at the IA is more your attorney’s choice of words than yours, or why, then, didn’t that description make its way into your report?)1 And if that’s not hard enough, try changing the minds of a prosecutor’s office once the case has been filed.

In previous articles we discussed some general legal principles regarding force encounters, as well as some of the dynamics leading up to the encounters themselves. Usually, however, it is a poor or ineffective description of those encounters that creates problems for the officer and/or his department. In this article, therefore, we will go over some specific, practical tools officers can utilize to better describe their uses of force both in their reports and on the witness stand.

“What We Have Here Is a Failure to Communicate”

In Hollywood, by the time the cop (“good guy,” remember?) shoots or whacks the suspect (“bad guy,” remember?), the audience has seen enough of the bad guy and his or her (it is 2010, after all!) despicable conduct that any force used is never really enough. Remember the last scene in the first Lethal Weapon movie? Bad guy Gary Busey on the ground, seemingly incapacitated. Mel Gibson (he was OK, back then) and Danny Glover (he was always OK!) hugging each other, and then the music started to change, the screen went into slow motion and you, we, the audience, knew it wasn’t over? We knew, but Mel and Danny had no idea, until the bad guy began to get up and tried one more time to shoot our two heroes. Now, in reality, was he secured? No. Had he been patted down or cuffed? No. Would the audience have had a second thought if, before Busey tried one last time to kill Mel and Danny, they shot him a few more times for good measure?

Again, no. Why?

First off, it’s Hollywood. It’s not real. But even more than that, the audience got a chance to see firsthand just how despicable and dangerous the bad guy was. In real life, however, unless that report or that testimony can also paint a picture of a dangerous suspect or a volatile situation, the audience (your sergeant, lieutenant, captain, chief, city attorney, district attorney, newspaper reporter, juror and/or judge — get the picture?) will not agree with an officer’s use of force, regardless of how justified that use of force may be. So, how to articulate uses of force to gain the confidence and support of any and all who may be in that officer’s potential audience?

A. Imagery: Most people think in terms of imagery, meaning that when thinking of something, anything, we usually see pictures in our mind’s eye, not words or sentences. That being the case, when describing something to someone such as an event or a person, that description should also be imageoriented or, better put, image-conscious. An example: When asked by the defense’s counsel in court how close the defendant was to the officer when the officer first “laid hands on him,” many officers are programmed to respond with a number like “two feet, three feet,” etc.

Wrong.

Why is that wrong, you might ask (and if you didn’t, I asked for you!)? Because the way that most people’s minds work, when stating that usual “two, three feet,” the first thing a person sees in his or her mind’s eye is either a ruler or a yardstick, neither of which depict the immediate danger or threat that the officer faced and the need to use force to overcome that threat. A yardstick is not threatening (unless, of course, you’re from the old school and it’s being used to whack some knuckles of a rebellious kid back in the day of corporal punishment and Oliver Twist). A ruler is also not threatening (see same sarcastic reasoning above).

Understanding this, let’s describe it a bit differently. Same question from the defense attorney, but now the answer is, “Close enough where he could reach out and grab my gun; he was a threat,” or, “Close enough where I could feel his breath on my face; he was a threat.” In those examples, what’s the first thing that pops into your mind? Not a yardstick or a ruler, right? And if the audience sees, in its mind’s eye, a person reaching out and grabbing the officer’s weapon, then even though it never actually happened, to that same audience, it becomes real because they can picture it — they have, in fact, pictured it. You’ve won that exchange. But let’s go a step further. Many encounters begin before the force is used, and keep going until after the suspect is secured. How, then, does an officer describe each and every individual force encounter in a way that mirrors the effectiveness of our example above?

B. Scenes: Just like in movies or television, building up to an encounter allows the audience to support the officer’s use of force once the need for the force becomes obvious. It’s the building of that description then, laying the foundation of what occurred before the decision to use force was made and, oftentimes, describing what was happening during the use of force, that allows whomever is reading the officer’s report or listening to his or her testimony to agree with and support that use of force. One effective way I’ve learned and employed through years of trial work and arbitration hearings of building that description which works to support officers’ uses of force is to carve out the entire encounter (and its precursor, i.e., those events that led up to the encounter) into scenes, like scenes from a movie. What each scene is made up of is dependent upon the specific encounter itself and the officer experiencing it. But every scene must always consist of three parts, or prongs: 1) what the officer saw, heard, or physically felt, i.e., physical sensations; 2) how that made the officer feel, i.e., thoughts, emotions; and 3) based on one and two, what did the officer do, how did the officer act? Additionally, all three parts must be stated in the order I just described before moving on to the next scene.

1. Seeing, Hearing, Feeling = Believing: The first part of the scene must consist of the officer’s sensory perception: what the officer heard, saw or felt. In the example from our introduction, the Estes robbery suspect, the officer could have articulated, when opening that cell door, that he saw the suspect make what appeared to him to be a lunging movement, while he heard the suspect say, “Come on, you want some?” A bit more descriptive than merely “combative.” And, if the same techniques are employed when describing the suspect’s previous actions, from fighting with store security (“I saw him punching at and kicking the security officer with a closed fist and the tip of his steel-tipped boots”) to trying to kick out the patrol window (“I saw the bottom of his feet consistently kicking at the middle of the window and the window buckle as if it were about to break any minute”), fighting in the sally-port (“As we attempted to escort the suspect from the car, he turned on my partner and myself and threw his head forward as if attempting to headbutt me while kicking at my ankles, feet and groin area”), fighting in the hallway, etc., then by the time we even get to the opening of the cell, the audience may be wondering why the suspect wasn’t already Tased several times over and why the officer even waited for that attempted lunge or “furtive movement.” And when that confrontation is described, it becomes the icing on the cake as opposed to a separate incident of a juvenile suspect Tased in a booking cell.

2. How Did It Make You Feel? Thoughts, Emotions: Prosecutors are great at asking civilian witnesses, especially victims, “How did that make you feel?” Such questions elicit sympathy, and subtly tell the audience that this person is a victim or, at least, a sympathetic actor in the event being described. Police officers, however, are rarely asked this question. That’s a mistake. Every justified use of force is a case of either self-defense, defense of others, defense of property or a combination of any or all three. And in cases of self-defense, defense of others or defense of property, the person claiming the defense (in this case the officer) must have both a reasonable and honest belief that his or her person, or the person/ people he or she is defending or their property, is, in fact, in danger of harm. The officer is at the very least a sympathetic actor in the incident being described; most times the officer is a victim. The officer’s mindset, then — which includes emotions, the most prevalent and relevant one being fear — is the most significant and material fact in any use-of-force encounter. To ignore that mindset or those emotions and thought processes in the description of the event, be it a report or testimony, is a fatal error made by many officers.

In our Estes robbery example, above, to simply describe the suspect as “combative” or, better, “attempting to lunge,” still leaves out the real reason why the Taser or force was deployed, and that is that the officer felt threatened! He was afraid! Descriptions like, “I thought he was going to attack me,” or, “I thought he was going to kill me,” tell the audience why the next step, what the officer actually did, i.e., deploy force, was necessary. Without that, the officer leaves that crucial piece of the encounter up to the audience to decide. And if the decision is unfavorable … Well, you get the picture.

Now, many of you may be saying that sure, maybe I felt afraid, but what makes you think my sergeant or the district attorney would have felt afraid? Lest you forget, you’ve already described in part 1 of the “scene,” in great detail, what you saw, heard and physically felt. So by the time you get to how you felt emotionally, to your audience, your feeling is not only honest, but more importantly, reasonable. Which leads us to the third prong in the scene.

3.What You Did: Your Actions -Now that the officer has described what he saw, heard and/or physically felt, and his emotions and thought processes based on his sensory perceptions, it is the logical next step to describe the officer’s actions, i.e., what he did. And it also allows the audience to reach the same conclusion before the officer even describes his actions, so once the officer does describe his actions the audience is hearing what they have already decided should be done, based on prongs one and two in the scene. Which means the officer is no longer convincing the audience to agree with his or her actions — on the contrary, the officer’s description is simply supporting a conclusion of what was necessary that the audience has already reached! This is one of the most effective ways of persuasive communication. Let’s lay it out:

  1. What you saw, heard and physically felt, which drive almost every person’s
  2. emotions, thought process and how those events made you feel, which drive almost every person’s
  3. actions, i.e., what you did based on what you saw, heard and how it made you feel. When the officer articulates the entire contact in such a fashion, breaking it up into scenes and then breaking those scenes up into three parts, or prongs, describing each prong in detail, the audience, any audience, be they the watch commander, administration, district attorney or a jury, cannot help but follow logically not only what the officer did, but also why and, more importantly, support those decisions.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.