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Gracie News

Documenting Use of Force

April 14, 2015

We at the Gracie Academy believe in our officers surviving both the fight AND the aftermath of the fight. The highly effective, yet humane, techniques of the GST system are specifically designed to help the officers overcome larger and stronger suspects. Additionally, it is also vital that officers properly document their force incidents to protect themselves and their agencies from litigation.

Attorney David Demurjian, who is a Use of Force expert, wrote an insightful article that details how the Supreme Court's view of force applies to the individual officer and why accurately documenting one's actions is vital for officers prevailing in the aftermath of a use of force incident.

Over the past several years, the use of force by police officers has become a critical topic within many departments. Use of force is a key area in which liability risk management must be applied and monitored at all times. There have been, and will continue to be, civil litigation in which plaintiffs allege that force used in the jails or in patrol was either inappropriate and/or excessive. Additionally, officers can be charged criminally for their inappropriate use of force. As for police supervisors, it is important to ensure factual documentation of force and proper articulation by officers in conveying the "totality of the circumstances."

Does the Police Report Pass Muster Under the "Objective Reasonable" Standard: A Primer

It's 0600 and an officer's shift has just ended. He has been going non-stop. He just had an encounter with a person who does not appreciate his conflict resolution skills, and a use of force became necessary. Exhausted, the officer is tempted to write a three-liner so he can go home and sleep. Avoid the temptation. Today, the media is closely scrutinizing law enforcement officers and there are "force experts" who have never seen the inside of a patrol car testifying about an officer's actions. And most it will be based on that initial police report.

Over twenty years ago, the United States Supreme Court set forth an objective reasonable standard for use of force cases in Graham v. Connor (1989) 490 U.S. 386. The Court held that "all claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its objective reasonableness standard...". The Court observed that "[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight." Moreover, in analyzing the encounter, a court must consider that the officer had to make a "split-second decision" in a "tense, uncertain and rapidly evolving" setting. Under Graham, the court when analyzing whether a particular use of force is reasonable begins with looking at the legal basis for the stop, the method in which the encounter was conducted, and it's ultimate conclusion.
After having reviewed several thousand use of force cases from various law enforcement agencies across the country, I have discovered a common problem in force reports - a lack of necessary detail that places the reader in the shoes of the responding officer. This is likely due to the fact that most law enforcement officers are not schooled on the nuances of the "objective reasonable" standard and the factors that weigh in on the Fourth Amendment analysis.

Thus, a key objective of a force report is to paint a complete picture of the facts leading up to the encounter from the vantage point of the officer who applied the force. The goal is to include all of the facts in order to persuade the reader that the amount of force applied was "objectively reasonable."

The court considers a host of factors when analyzing whether the force applied was reasonable under the Fourth Amendment. A good starting point is to describe everything perceived through the five senses: sight, sound, touch, smell and taste. An officer should describe, in detail, what was seen or not seen, heard or not heard, smell or not smelled, felt or not felt, etc. All too often, officers forget to recount these necessary details which provide the district attorney, judge, and expert witnesses with a better understanding as to why force was applied, thus leaving little to guesswork.

Some other factors that should be included, if relevant, are as follows:

  • Relative size of the officer versus the suspect(s): was the suspect(s) physically larger than the officer?

  • How many officers were present versus the number of suspects present? Was the officer outnumbered? Did it "appear" the officer was outnumbered?

  • What was the officer's defensive tactics training experience? Was the suspect trained in martial arts or in some discipline? Did the suspect have prior military training? This factor addresses special skill sets.

  • What is the gender of the officer versus the suspect? This pertains to relative upper body strengths.

  • How close was the suspect to any weapon or any potential weapon? This would also include the officer's own weapon(s).

  • Injury and exhaustion levels: was the officer injured at the time the force was applied? Was the officer exhausted after chasing the suspect when the suspect decided to fight?

  • Mental illness and/or drug use: these factors pertain to the suspect's ability to communicate and follow commands. This also addresses the suspect's tolerance of pain when force was applied.

  • Historicals: how many times has the officer dealt with this individual? How many times has the officer been to this location? What has the officer heard about this location from a reliable source? This factor addresses the officer's past experiences and it should never be underestimated in the analysis.

  • Training: has the officer received extra training in a specific law enforcement topic that affects his/her judgment?

While this list is not all-inclusive, including this level of detail will help the court visualize the force encounter through the eyes of the responding officer who applied the force in order to determine whether an objectively reasonable officer standing in the shoes of the responding officer would have acted in the same way. If the officer has failed to include the necessary details that can explain the application of force used because he or she has assumed too much on the part of the reader, the officer will have effectively limited the court's ability to reach a result that comports with the legal standard. To be safe, it is better to err on the side of including the necessary details that will help those who were not there, but who are called to evaluate the action, to better visualize the encounter. This may take several drafts and revisions, but it is the safer approach to revise the report until the word picture is complete.

Benjamin Franklin penned the old proverb, "haste makes waste." The next time you are tempted to cut corners on your report, remember that the few extra minutes you spend in careful drafting may mean the difference between sailing through an arrest or being embroiled in lengthy, embarrassing, and expensive litigation.

Be patient, be safe and come home.

For more information on the GST Program and Upcoming Courses, click here.

For information on the author, Attorney David Demurjian, click here.