Articulating Use of Force in the Field and in the Courtroom Part 2 – Rules of Engagement

Posted by Michael D. Schwartz, Esq.

I. INTRODUCTION: In the last article, Part 1 of Articulating Use of Force in the Field and in the Courtroom, we discussed briefly some of the prevailing law regarding the legality of an officer’s use of force in the field. In the present installment of the series, we’ll discuss some of the factors that drive use of force encounters in order to have a better understanding of those encounters and, at the end of the day, to better articulate the reasons for those encounters.

Comedian Jeff Foxworthy once described an “encounter” he had in a bar in Atlanta, Georgia. He had just come from working a few months in New York and had begun to “acclimate” to the culture there. Fast forward to his night in Atlanta, where, while sitting in a smoky bar nursing his beer, he accidentally spilled a bit on the linebacker-sized gentleman sitting next to him. As Foxworthy was in the midst of turning to apologize, he felt a cold mug of beer being broken against his face. Dazed, confused, bleeding on the floor, he looked up at his assailant and complained that in the Big Apple, that would never happen.

“First of all, in New York, there are rules.

Rule 1: Establish that there may be an issue: ‘Hey, you got a problem?! ‘I don’t got a problem–you got a problem?! ‘Yeah, YOU’RE my problem!’ Now that we’ve established that there IS in fact an issue, we can then establish who the parties are:

Rule 2: Establish the parties: ‘You know who you’re messin’ with, ah?! ‘Who I’M messin’ with? Who I’M messin’ with?! You got any idea who YOU’RE messin’ with?’

Now that we’ve established there’s an issue, and the parties involved, there needs to be some notice given about the potential consequences should the issue continue on its present path:

Rule 3: Notice ‘You know what I’m gonna do to you? Eh?! Yeah?! I’m gonna rip off your head and spit down you neck!’ ‘Yeah?! I hope you got an organ donor card ‘cause when I’m done with you that’s all that’s gonna be left!’

So, we’ve established there’s an issue, we’ve established the parties, and there’s been notice given of the potential consequences should the issue continue on its present path. Now, and only now, the linebacker-sized gentleman has full authority to swing that mug in my face!”

Sure, Foxworthy’s skit may be a bit overboard for comedy purposes, but in reality, his three steps aren’t that different from what happens many times to an officer facing a potential confrontation in the field. Factors to think about: 1) what is the underlying reason for the contact in the first place; 2) who is it, i.e., what is the nature of the contact? Suspected felon or jay-walker; and 3) before using force, was the suspect on notice either verbally by the officer or by nature of his or her own actions, reasonably should have known that his actions would lead to an officer use of force?

With regard to the third prong – some form of notice – California Criminal Jury Instruction 2670 states unequivocally, in pertinent part, that:

“In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or an infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer’s presence.”

The officer must tell that person that the officer intends to arrest him, why the arrest is being made, and the authority for the arrest. The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody. The officer must also tell the arrested person the offense for which he or she is being arrested if he or she asks for that information.

So, considering the above (which, if you noticed, Cal Crim 2670 does not seem to apply to felony arrests), you may be asking, when is a good time during an encounter that is, “rapidly evolving” to take a moment with that warm, friendly suspect and announce that they are now under arrest?1

The standard thinking for years has been that most if not all use of force encounters spark our defense mechanisms into action, and those mechanisms and the resulting encounters invariably have two parts to them: fight or flight. Lt. Col. Dave Grossman debunks that theory, however, in the very first chapter of his book, “On Killing.” (Grossman, David A., Back Bay Books/Little, Brown and Company, 1995)2 Grossman states early on – and then goes on to support his point – that every force encounter actually has four potential parts to it, not two: Fight, Flight, Posture or Submit. As we will see below, nearly all use of force encounters between law enforcement and suspects and/or the public (who soon enough become suspects based on the encounter) entail one, or more than one, of these four elements. It is the poor description of these elements, be it in a use of force report or on the witness stand, that has led to many administrative, criminal or civil problems for the officer and/or his department. Therefore, an overview of these four elements, their role in the encounter and some tips, and tools of how they should be described by the officer in articulating the reason why the force was necessary, will afford those officers reading this series a better understanding on how to articulate these encounters. Hopefully, this, in turn, will avoid that call to the Internal Affairs office or worse, arraignment court or Federal Grand Jury.

II. FIGHT, FLIGHT, POSTURE OR SUBMIT: Lt. Col. Grossman describes that one of the inherent problems combat soldiers3 and, by comparison, law enforcement officers have experienced over the years is a lack of understanding of how their and their “enemy’s” minds work during an encounter. Grossman points out that while the accepted model for encounters for years has been, as stated above, fight or flight, combat soldiers and law enforcement officers experience two other elements that play an equal if not at times greater role in those encounters: posturing or submission. Why is this significant? Because as Grossman notes later in his book in greater detail, most soldiers do not want to kill a fellow human being, regardless of the nature of the war or combat. Officers are no different.4 Knowing what the elements are of a use of force encounter, therefore, may actually help that officer not only make decisions in the field to help de-escalate an encounter, but to also better describe an encounter that does eventually evolve into a use of force. Of the four elements noted, above, the third element, “Posturing,” will be the one this article primarily focuses on because it is probably the most pervasive of the elements in nearly any encounter an officer may have on the street, let alone the one whose failure most often evolves into a use of force.

Flight and Submit: Although Hollywood may seem to disagree, flight and submission are not usually options for an officer in the field when facing a suspect who is simply not going with the program. Add to the picture an openly hostile suspect, or one And when that turns out to be the case, an officer’s decision to not retreat or wait for back-up may be seen after the fact as unreasonable, Penal Code section 835a notwithstanding. Many agencies, for example, have policies against more than two vehicles engaging in a pursuit. Again, why? Because depending on the pursuit, the underlying offense, and how that pursuit evolved, it may be more harmful to the public and the officers to widen the scope of the pursuit. There are also times when a suspect who is armed may be better held at bay while waiting for back-up than confronted, depending on the circumstances. Flight, therefore, although not a prevalent option, when seen as a form of, “officer safety,” may in fact have its place given the right circumstances. When not chosen as an option by the officer, the reason for its rejection as an option should be articulated if the officer wants to avoid potential problems, be they administrative, criminal, or civil in nature.

Fight: This option is, obviously, the force encounter itself. It will be discussed, therefore, in Part III of this series in conjunction with specific tools an officer can employ in articulating the need for the force and the details of that use of force.

Posturing: Probably the most prevalent option that an officer experiences and utilizes listed by Grossman is posturing. In the words of Lt. Col. Grossman:

“Adding the posture and submission options to the standard fight or flight model of aggression response helps to explain many of the actions on the battlefield. When a man is frightened, he literally stops thinking with his forebrain (that is, the mind of a human being) and begins to think with the midbrain (that is, that portion of his brain that is essentially indistinguishable from that of an animal), and in the mind of an animal it is the one who makes the loudest noise or puffs himself up the largest who will win.” (Grossman, “On Killing”, p.8)

In police work, until physical force is actually deployed, be it hands on or with a weapon, most of the encounter is posturing. Command presence is a form of posturing. Verbal identification is a form of posturing. Threat of force, such as threat of use of pepper spray, baton, taser or firearm are also forms of posturing. As stated above, California Penal Code section 835a allows law enforcement officers in California to use reasonable force to effect an arrest, prevent escape or overcome resistance. It doesn’t say: “to win.” The handicap officers face in the field during these encounters is that while the suspect wants to “win” at any and all costs, the officer is charged with merely “arresting,” “preventing,” or “overcoming.” In other words, the officer’s goal, based on his or her training and the law, is to control and secure. In reaching that goal, an officer is trained that there will be times that he or she must deploy even greater force than that which he or she is facing in order to effect that arrest, prevent escape, or overcome resistance.5 Posturing, more often than not, meets that goal. Remember Sean Connery in the movie, “The Untouchables?” Connery, the stereotypical Irish Chicago cop while being threatened at knife-point in his apartment by a crony of mob boss Al Capone, whips out a gun and says to a now frightened thug, “Just like a dago to bring a knife to a gunfight!” Connery’s actions in the movie (not his colorful language) were just what we would expect of an officer: a show of greater force to overcome the adversary and then, hopefully, force him to submit, i.e., control and secure him. That show of force is a form of posturing. Connery didn’t fire on the thug in his apartment. He merely sought to chase him out, maybe to make an arrest, or have a chance to “call for back-up.” Unfortunately for Connery, though, his posturing didn’t work on the other thug waiting outside, this time armed with a machine gun. Again, the Connery-the-officer did not have a “win at all costs” state of mind but, rather, control and secure (or he would have simply shot the first thug rather than chase him out of his apartment). The natural result of that mind-set also becomes the disadvantage officers face when encountering a suspect who is non-compliant, passively or actively resisting that officer’s commands; officers need to worry about not only their own safety and security, but also others around them including the suspect! The suspect, however, has none of these concerns. That disadvantage, unfortunately, is inherent in the system. Officers need, then, to intellectually realize that this disadvantage exists and be able to articulate that disadvantage by describing their thought processes, decisions and resulting actions of the before, during and even after, of the encounter to support and give reason for the force used.

In the example of the Foxworthy rules of engagement, above, much if not all of Foxworthy’s skit of the two parties in the bar was an example of posturing. It is this element that most times drives the encounter. When posturing doesn’t work, there is a resultant shock created by that failure, especially for law enforcement who are trained, and experience 98% of the time, that the posturing does in fact work. It’s supposed to work. The problem an officer faces, as described above and by Grossman, is that most officers, based on training, instinct, and even common sense expect posturing to work. It’s the shock of the ineffective posturing that many times drives the officer’s choice of force, i.e., that next step, in order to ensure control of the suspect and situation. In those cases, the officer is often left with no choice but to raise the level of the posturing, i.e., the level of threat or, when that fails, fight. That means using force. It’s important to realize that the officer is reacting; it is the suspect by his actions or non-compliance (or both) that is driving that decision.

“Who decides how much force the warrior has to use? Who ultimately makes the decision that deadly force is needed? The suspect does. The enemy does. The threat does. He fights, you fight. . . . He makes that decision for you. He has the option to surrender, and your job is to respond with what society says is your right and responsibility to do.” (Grossman, “On Combat,” p. 146)

The overall goal is always to control and secure the suspect and the situation. But the immediate goal is NOT to have to fight, i.e., not to use force. When that goal is not achieved, force must be used to accomplish the overall goal.

I can’t begin to state enough not only the importance of understanding and utilizing posturing in the field, but also to properly articulate that posturing and its failure in reports and testimony. The public at large has a duty, as citizens, to submit to the lawful, reasonable orders of a law enforcement officer.6 Period. A citizen may disagree with the tactics employed, may disagree with the reason for the order. But if the order is lawful, and reasonable, especially during the investigation of a crime or the arrest of a criminal suspect, the citizen has a duty to comply with that order. Levels of command presence and threats of force if the suspect does not comply are forms of posturing. In the overwhelming majority of encounters, the suspect or non-suspect citizen complies. However, when the officer is faced with non-compliance, which means that the posturing that he or she has been trained to utilize did not work, and force is necessary, it is that failed posturing and its natural response that needs to be articulated properly. Most importantly, the shock an officer experiences most times, the disbelief that the posturing is not working, has an element of fear. And fear is one of the key elements of any case of self-defense, defense of others, or defense of property, which in the end is what any use of force really is (or should be).

Posturing is supposed to work: “I’ve got a badge, I’ve got a gun, and these guys aren’t listening to me!”7 When suspects don’t listen under those or similar circumstances, the ensuing shock of that non-compliance and the resultant fear is a natural, human reaction and needs to be understood that way. Shock, or better fear, is a necessary element in articulating a use of force encounter. It is the reaction to the fear and again, its articulation, that makes all the difference. In his book, “Force Under Pressure: How Cops Live and Why They Die,” Dr. Lawrence Blum notes:

“The tragic irony is that it is simple for police officers to cope with and command emotions, physical reactions, and mental activity if they possess the tools and knowledge of why these reactions are occurring, and condition and train themselves for victory.” (Blum, Lawrence N., PhD., “Force Under Pressure: How Cops Live and Why They Die,” (Lantern Books/Booklight, Inc., 2000), p. 31.)

In our context, possessing the knowledge of the dynamics of use of force encounters and the tools to describe them by being able to articulate the reasons for those emotions, physical reactions, mental activity and officer response decides the ultimate success of the encounter which is, in the current climate, how that encounter is reviewed and judged by the administration, the District Attorney’s or United States’ Attorney’s Offices and criminal and civil juries.

Stay tuned for Part III – Tools for Articulating Uses of Force

1. “Also of note, Cal. Crim. 2670 does NOT apply to detentions, merely arrests. It stands to reason, therefore, that when detaining that suspect, no announcement as to why is necessary, legally. It may, however, be good form to attempt to inform the suspect, when the circumstances allow, as to 1) the issue involved, 2) the parties (the officer with a lawful right to investigate, and a suspect, with a duty to comply with that officer’s lawful orders), and 3) the consequences of noncompliance, i.e., notice (again when the situation allows, obviously). It also looks much better to reviewing supervisors, deputy district attorneys and jurors.
2. This book, along with its follow-up, “On Combat,” (Grossman, David A., PPCT Research Publications, 2004) should be required reading for all law enforcement personnel.
3. In both Lt. Col. Grossman’s books, although written primarily for combat soldiers, the Lt. Col. Makes it clear that the principles and theories have equal application to the men and women of law enforcement who also experience many, if not all of the conditions of combat on a daily basis while patrolling and protecting our streets and communities.
4. Of note: in a recent OIS this author rolled out to, the suspect approached both my clients, armed with an axe. Numerous commands were given to drop the axe. The suspect walked straight up to the patrol car, turned and walked toward the officers who had backed up close to the passenger doors, still yelling commands. It wasn’t until the suspect came within about ten feet or less that the officers opened fire. When questioned why they waited, they really had no response until I suggested that in reality, they simply didn’t want to have to shoot him. Both agreed.
5. See California Penal Code section 835a; P.O.S.T. Learning Domains 15 and 20.
6. See California Penal Code section 148(a).
7. One of my clients who, while alone and holding two felony suspects at bay at gunpoint, could not believe that not only was his “posturing” not working but, in fact, the suspects were actually verbally challenging him!