The News Herald (Willoughby, OH)
Policy and procedure protect use of lessthan-lethal options
This is the second of a two-part series on use of less-than-lethal force by area law enforcement agencies.
Those who confront law-enforcement officers with resistance are liable to encounter something like Newton’s Third Law.
In it, the famous 17th/18th Century English physicist illuminates the fact that, in nature, where there’s a push, there’s an equal pull. Where there’s a downward force, an equal, opposing, upward force is also in play and when two bodies collide — be it a bug into a windshield or
two human beings engaged in a tussle — things can get messy.
When push comes to shove and an officer charged with keeping the peace determines it’s necessary to do anything from putting hands on a subject or discharging some pepper spray, to employing a baton or even a Taser, he or she must do so with discretion and at the speed of life.
But when it comes down to these kinds of decisions, the question of what to do doesn’t have a simple, cut-and-dried answer. And the outcome can result in anything from a more-compliant suspect to an officer being charged criminally.
“All force is subject to scrutiny,” said Capt. Carl Dondorfer with the Lake County Sheriff’s Office and commander of the Lake County Sheriff’s Office special weapons and tactics team. “But we have our operating guidelines to back us up when a confrontation comes to that. Law enforcement has the ability to use the legitimate amount of force necessary to affect an arrest. And use of force is outlined in our policies and procedures to make sure the force used is appropriate and in accordance with Graham versus Connor.”
That 1989 Supreme Court decision established an objective standard for when an officer can legally use force on a suspect and how much force can be used.
But what do officers on the street do to apply this standard when their presence and verbal communication tactics don’t de-escalate a potentially volatile situation?
“As long as we follow the policy and procedure, as far as the use of force continuum, and we do the right thing, that’s how we protect ourselves from any repercussions,” Geauga County Sheriff Scott Hildenbrand said regrading officers’ use of any tactic, be it putting a person in handcuffs, using a baton or a Taser. “Nobody wants anyone to get hurt, be it an officer or a suspect. But, when the situation calls for it, you have to affect the arrest. We are charged with protecting the peace.”
A commonly employed standard for the use of any means of response to resistance, as use of force is becoming known, is a hierarchy developed by Sam Faulkner called the Action-Response Continuum.
Faulkner, is founder and CEO of Response to Resistance and established a survey — which is ongoing — to determine people’s perceptions of the use of force by law enforcement officials.
“The current national turmoil
regarding the purported disproportionate use of force by law enforcement against minorities is fueled by the fact that there is not a hard and fast definition of what constitutes ‘objectively reasonable force,’” Faulkner is quoted as saying in a July 12, 2016 media release.
“I think the public might think that a police officer is a ninja warrior or Superman,” said Chardon Police Chief Scott Niehus. “But, the fact is, we’re human and subject to the same issues as any human being... And a lot of these things happen at the speed of action. Trying to determine what response is appropriate, as it happens, is no small feat.”
Niehus brought up the concept of Hick’s Law, which addresses the time it takes for people to make decisions based on the possible choices they have.
For police officers confronted with what to do when Newton’s Third Law comes into play, that could be anything from choosing the right words to choosing the right weapon. And it’s not a decision made in a vacuum.
“The more options you have available, the slower your pace is in that reaction time,” Niehus said with respect to all of the options law enforcement officers have — from words to Tasers to guns. “And we have to consider everything, not only the tools, but also the rules that go along with our policies and procedures.”
And that all has to be considered while, say, someone with a baseball bat is charging toward them.
“The guy or gal on the other side doesn’t have all the same rules to follow,” Niehus said. “So what are your options? And how fast can you make the right decision? That’s what we’re up against.”
No matter what the outcome, if any kind of force — less-than-lethal or otherwise — is used by law enforcement, there’s always the possibility that whomever it was used on could call foul.
That’s why every case, in
which any level of force is used, is investigated, both internally and, if necessary, externally.
“As you know, anybody can sue anybody for anything,” said Lake County Prosecutor Charles Coulson. “You can’t protect yourself from being sued. But you can protect yourself by doing everything right. Every department has its own set of policies and procedures. And the first thing any department is going to do is going to be to look to see if the officer followed those policies and procedures.”
Coulson said that, as a county prosecutor, he would only look at cases in which criminal wrongdoing was alleged in cases of excessive use of force. He said subjects of less-than-lethal police use of force have civil avenues to dispute how they were treated, which is an entirely different situation.
“I only am involved if it was determined that an excessive use of force was not justified,” he said. “Then it becomes a criminal matter.”
But area law enforcement hasn’t come across many criminal allegations where force was used in recent memory.
“I’ve been doing this for more than 25 years,” the Lake County Sheriff’s Office’s Dondorfer said. “And I can only recall a very few incidents in which one of our guys’ use of force was called into question. Honestly, we don’t have to use it that often. Our guys are well-versed in using their verbal skills in crisis de-escalation and, I think, that’s really paid off in that respect. We don’t get a lot of complaints.”
Niehus summed up how officers determine whether to use any kind of implement, whether it’s a burst of pepper spray, a hands-on compliance tactic or, in the worst-scenario cases, to un-holster and pull the trigger of a firearm: “Was what our officer did objectively reasonable, based on the circumstances the officer encountered and the totality of the situation?”