Some threats hope for a lawsuit in their favor. A desire for publicity will lead some to attempt to provoke officers into an unjustified use of force.
A local photographer told me she had attended classes run by a protest group specifically on how to bait officers into making a motion that would look like a strike on camera. For example, one protester would pretend to fling a cup of liquid at the officer. The cup would be empty, but when the officer’s hand flinched up to protect his face, a photographer would be waiting at an angle such that the motion would look like a strike.
In general, force is not justified against a threat only exhibiting verbal resistance. This is not true in a correctional setting. In jails and prisons, the staff is routinely outnumbered by dozens and sometimes more than a hundred to one. The laws have recognized that under these conditions and with the necessity to maintain order in a population that is far more violent than the norm, the staff cannot safely allow anyone to incite others. Verbal resistance in a correctional institution, especially when viewed as an attempt to incite other inmates to action or show or gain leadership status with the inmates can and usually will be met with force.
Static. A threat refusing to comply with lawful orders, even if doing no harm, is exhibiting static resistance. Static resistance authorizes pain-compliance techniques. (See section 1.6, “The Force Continuum.”)
As much as the average person has a problem with force at all, most can get behind the idea of using force to stop force. Using force to stop nothing is a little harder to accept.
Here’s the rationale:
American or not, you don’t have the right to do anything you want. Your rights stop where they interfere with another person’s rights. People cannot take your things without permission. They cannot use your things without permission. Also, they cannot prevent you from using your things or prevent your lawful use of public things. Neither can you. Rights work in both directions.
Protesters who block traffic are infringing on the rights of every other citizen to use the road. Loud, angry people using foul language are infringing on everyone else’s right to be in that place in peace. The politically impassioned heckler who decides that his insults and questions for a candidate are more important than the agenda is infringing on everyone else’s rights.
Note well: In almost all cases an officer can’t or won’t intervene until he has been asked. In a private place, such as a business or rented lecture hall, the request must come from someone with site authority, such as the owner or manager.
Officers are sometimes forced to make decisions with incredible speed. They are often high-stakes decisions with a glance’s worth of data. Is the threat pulling away to run or pulling away to hit me? That question takes me just under two seconds to say aloud. In that space of time, a completely untrained person could hit you eight times. I have several friends who could draw a knife and stab you eight times in under two seconds.
Those are high-stakes decisions. Imagine dropping a piece of toast. Before it hits the ground, you have to decide if it will land with the butter side up or down, and you must do something before it hits…and the action you should take is based on which way it will hit.
Same speed, same amount of information. The stakes are just higher—take a chance on being injured or take a chance on hurting someone who just may be a scared kid trying to get away.
This is the standard that officers are often held to by the media and some civilians. It is beyond human ability in speed and analysis.
In order to protect the rights of others, officers are authorized and sometimes required to use force.
Active resistance is whenever the threat uses physical force to prevent the officer from doing the job. Running away is active resistance. Hanging on to a door jamb or a steering wheel to prevent being taken into custody is active resistance. Pulling away as an officer tries to apply handcuffs is active resistance; however, pulling away is also exactly what a threat who has decided to attack the officer might do and is often met with an appropriately higher level of force.
An ominous threat is trying to injure you, pure and simple. That can be any unarmed attack and some attacks with weapons (though most weapon attacks are lethal). Biting, also, is termed ominous behavior, although with concerns about blood-borne pathogens, some officers argue that biting should be considered lethal resistance.
Lethal threats, of course, are trying to kill you. Mechanism makes no difference: kicking a person in the head when he is down, shooting, stabbing, throwing someone off a building or into traffic.
An officer’s intent in a deadly force situation is not and can never be “to kill.” The intent is always to ‘stop the threat.’ This can appear to be mincing words. In a way, it is. Killing is certainly stopping, and many of the ways a threat is ‘stopped’ that come to media attention are kills.
There are two reasons why that wording is important in application and training. ‘Dead’ is a term with very specific meanings—something that is sometimes difficult to establish in the field. Modern medicine has saved many people who would have been declared dead fifty years ago. A ‘reasonable officer’ can be expected to determine when a threat has stopped; he cannot be expected to determine ‘dead,’ and that simple change in wording might require the officer to use more force, just to be sure that he met the standard.
The second reason is for the benefit of the officer in the aftermath. This will be covered more in section three, but for now know that there is a cost, sometimes a terrible cost, in the taking of a human life. No matter how brutal the person or under what circumstances, converting someone from living to dead is not something the normal person can do without grave psychological repercussions. Reminding someone that they needed to stop the threat, that his or her intent was to make the threat stop, not to kill, may, in some tiny way, ease the healing process. Or so we hope.
A lethal threat authorizes deadly force.
Often, even if the threat’s intent is manifestly not lethal, but his or her actions place someone in mortal danger, the officer may use deadly force. In this context, think of force not as force intended to kill, but as doing anything it takes to stay alive. A threat struggling to escape on a narrow, slippery fire escape several stories off the ground, a threat trying to drive away from a traffic stop with the officer stuck halfway through the window, or a developmentally disabled 300-pound man struggling to escape from a small room and crushing the officer may all justify deadly force.
The basic concept of the force continuum is that different types of threats can be handled with different tactics. Not everything can be solved with a kind word or a wristlock and not every situation requires a gun. The force continuum is an attempt to scale needs to actions so that administrators, juries, and other interested parties can estimate whether the force used in a situation was appropriate.
The simple fact is that fights, especially some of the ugly ones that last a long time or involve extreme levels of force, are extremely chaotic and don’t fit easily into boxes. Built into Use of Force training, along with all the levels of the force continuum, are all the reasons to depart from it.
As I write this, there is a debate raging in many agencies about whether to abandon the concept of a force continuum altogether. The argument for maintaining it is mentioned above: it makes certain elements of force application and policy easy to explain and to teach.
The arguments against are more varied. The most common complaint I hear from officers and trainers is that some officers and many juries will be led to believe that since the continuum is presented in steps, the officer is required to try every level, starting at the bottom, in every situation.
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