Police Use of Force: Down and Dirty

Police use of force (UoF) law is a cloud of convoluted cases and statutes. We have structured the seemingly unrelated issues together into a comprehensive template that includes: Search, Seizure, Force, and Intrusion. The below chalkboard schematic is unapologetically a work-in-progress, but we unveil it here to demonstrate its usefulness in Seizure and Force issues (it can also be used to dissect levels of intrusion while performing searches...which is why we call it a "combined" template.)

The Illinois Model's latest draft of "S&S, Force, Intrusion" template. (May 2013)
First and foremost, it is absolutely impossible to discuss UoF without beginning with Fourth Amendment Search & Seizure (S&S). This can be termed lawful placement or lawful foundation or lawful authority. Police officers must first begin with a lawful objective in mind:

  • Defense of self
  • Defense of others
  • Investigative detention
  • Criminal arrest
  • Custody for involuntary hospital admission (mentally ill or suicidal)
  • Control for treatment of medical emergency (ex: Excited Delirium Syndrome)

Failure to justify an lawful objective places any UoF on faulty ground. Here is how we apply our system to the situation:

Applying The Illinois Model


The Illinois Model

It is at the Priority of Life tier where the question about threats arise and what type of threat exists. It begins to paint a picture of the situation:
  • Is the person an immediate threat to the officer or public? (Defender)
  • Is a person suicidal or suffering a critical medical emergency? (Community Caretaker)
  • Is the officer investigating a crime? (Crime Fighter)
Then at the Mission-Objective tier, the scope of the "seizure" or contact is identified based on Fourth Amendment case law. This identifies if a person's freedom of movement can be restricted and for what objective:
  • Stopping or preventing threats to officer or others (Defender)
  • Stopping or preventing threats to the person by him/herself (Community Caretaker)
  • Detaining or arresting the person who committed a crime (Crime Fighter)
The differing goals of Terry v Ohio stops, criminal arrests, taking a suicidal person (or a person with a medical emergency) to a hospital are distinct. But each gives authorization for even the slightest of seizures.

It is then at the Strategy-Tactics tier where the decision of actual Police Use of Force can begin. The amount of force may be as un-intrusive as yelling "STOP!" to a person and restricting that person's freedom of movement (affecting a seizure) through verbal command. The intrusion may be as high as deadly force, as is the case of a fleeing man who committed a crime involving the infliction or threatened inflicting of serious physical harm, poses a deadly threat, and must be stopped without delay.  This is where risk-balancing test of Graham v Connor or Chew v Gates or Tennessee v Garner are applied. The amount of force (AKA: government intrusion) must be balanced against many factors taken from many case opinions, but as a rule:
  • If a physical seizure is justified, then some force is used to make the seizure (even if only by the slightest verbal direction).
  • Any any amount of force will have to be justified using the threat or danger as the most significant factor.
In a nutshell, officers need a lawful reason to "seize" the person BEFORE any discussion or debate on how much or little force is necessary and justified to affect that seizure. The Fourth Amendment issue takes a priority over the UoF every single time -- even if the force is being used in self defense. Because of this relationship, it is impossible to dissect or teach UoF without starting with S&S issues.

Officer must also keep in mind that police incidents are dynamic and ever-changing: probable cause, reasonable suspicion, and mere unexplainable hunches can either grow or shrink...which either empowers or limits power of first responders!

When later explaining the need for force (whether in written report or verbal testimony), an officer MUST begin with the justification for seizure....and a seizure based on some crime, danger, or threat. Without a threat, crime, or danger, it is unlikely that any scope/type of seizure is justified....and therefore ANY amount of force, however slight, is unreasonable.

Force requires a lawful objective.

The Illinois Model's vision is that any and all law enforcement actions are guided by a universal, structured, and prioritized system. In all applications of our model, the Mission-Objective question must be answered before that of Strategy-Tactics....and the Priority of Life before both!

We hope you will share your thoughts, questions, comments, and criticism of our chalkboard drawing of the Combined Search, Seizure, Force, Intrusion template.

***

Louis Hayes is a systems thinker for The Virtus Group, Inc., a firm dedicated to developing public safety leadership. He is a co-developer of The Illinois Model law enforcement operations system (LEOpsSys) and moderates several courses rooted in its theory and concepts. He is a 17-year police officer, currently assigned to a multi-agency tactical unit in Chicagoland. The above template is a product of his private high school education and some casual study of law as a municipal beat cop. A full compilation of LEOpSys articles on the model can be found here...and pay special attention to Part 10 on Use of Force. Follow his ideas on Twitter at @TheVirtusGroup

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