HomeMy WebLinkAboutCSS 2020-06-22 Item 1 - Handout to be Distributed at Meeting - ATTACHMENT: National Consensus Policy on Use of ForceNATIONAL
CONSENSUS
POLICYANn
DISCUSSION
PAPER DN USE of
FORCE
October 2017
POLICY
This National Consensus Policy on Use of Force is a collaborative effort among 11 of the most
significant law enforcement leadership and labor organizations in the United States (see back panel for list).
The policy reflects the best thinking of all consensus organizations and is solely intended to serve as a
template for law enforcement agencies to compare and enhance their existing policies.
I. PURPOSE
The purpose of this policy is to provide law
enforcement officers with guidelines for the use
of less -lethal and deadly force.
II. POLICY
It is the policy of this law enforcement agency to
value and preserve human life. Officers shall use
only the force that is objectively reasonable to
effectively bring an incident under control, while
protecting the safety of the officer and others.
Officers shall use force only when no reasonably
effective alternative appears to exist and shall
use only the level of force which a reasonably
prudent officer would use under the same or
similar circumstances.
The decision to use force "requires careful attention
to the facts and circumstances of each particular
case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to
the safety of the officer or others, and whether he
is actively resisting arrest or attempting to evade
arrest by flight."
In addition, "the `reasonableness' of a particular use
of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the
20/20 vision of hindsight ... the question is whether the
officers' actions are `objectively reasonable' in light of
the facts and circumstances confronting them."'
This policy is to be reviewed annually and any
questions or concerns should be addressed to the
immediate supervisor for clarification.
1 Graham v. Connor, 490 U.S. 386 (1989).
III. DEFINITIONS
DEADLY FORCE: Any use of force that creates
a substantial risk of causing death or serious
bodily injury.
LESS -LETHAL FORCE: Any use of force other than
that which is considered deadly force that involves
physical effort to control, restrain, or overcome the
resistance of another.
OBJECTIVELY REASONABLE: The determination
that the necessity for using force and the level of
force used is based upon the officer's evaluation
of the situation in light of the totality of the
circumstances known to the officer at the time
the force is used and upon what a reasonably
prudent officer would use under the same or
similar situations.
SERIOUS BODILY INJURY: Injury that involves a
substantial risk of death, protracted and obvious
disfigurement, or extended loss or impairment of
the function of a body part or organ.
DE-ESCALATION: Taking action or communicating
verbally or non -verbally during a potential force
encounter in an attempt to stabilize the situation
and reduce the immediacy of the threat so that more
time, options, and resources can be called upon to
resolve the situation without the use of force or with
a reduction in the force necessary. De-escalation
may include the use of such techniques as command
presence, advisements, warnings, verbal persuasion,
and tactical repositioning.
EXIGENT CIRCUMSTANCES: Those circumstances
that would cause a reasonable person to believe that
a particular action is necessary to prevent physical
1195, 1199 9th
harm to an individual, the destruction of relevant
evidence, the escape of a suspect, or some other
consequence improperly frustrating legitimate law
enforcement efforts.'
CHOKE HOLD: A physical maneuver that restricts
an individual's ability to breathe for the purposes of
incapacitation. This does not include vascular neck
restraints.
WARNING SHOT: Discharge of a firearm
for the purpose of compelling compliance
from an individual, but not intended to cause
physical injury.
IV. PROCEDURES
A. General Provisions
1. Use of physical force should be
discontinued when resistance ceases or
when the incident is under control.
2. Physical force shall not be used against
individuals in restraints, except as
objectively reasonable to prevent their
escape or prevent imminent bodily
injury to the individual, the officer, or
another person. In these situations, only
the minimal amount of force necessary
to control the situation shall be used.
3. Once the scene is safe and as soon
as practical, an officer shall provide
appropriate medical care consistent with
his or her training to any individual who
has visible injuries, complains of being
injured, or requests medical attention.
This may include providing first aid,
requesting emergency medical services,
and/or arranging for transportation to an
emergency medical facility.
4. An officer has a duty to intervene to
prevent or stop the use of excessive force
by another officer when it is safe and
reasonable to do so.
5. All uses of force shall be documented
B. De-escalation
1. An officer shall use de-escalation
techniques and other alternatives to
higher levels of force consistent with his
or her training whenever possible and
appropriate before resorting to force and
to reduce the need for force.
2. Whenever possible and when such delay
will not compromise the safety of the
officer or another and will not result in
the destruction of evidence, escape of a
suspect, or commission of a crime, an
officer shall allow an individual time
and opportunity to submit to verbal
commands before force is used.
C. Use of Less -Lethal Force
When de-escalation techniques are
not effective or appropriate, an officer
may consider the use of less -lethal
force to control a non -compliant or
actively resistant individual. An officer
is authorized to use agency -approved,
less -lethal force techniques and
issued equipment
1. to protect the officer or others from
immediate physical harm,
2. to restrain or subdue an individual who
is actively resisting or evading arrest, or
3. to bring an unlawful situation safely and
effectively under control.
D. Use of Deadly Force
An officer is authorized to use deadly
force when it is objectively reasonable
under the totality of the circumstances.
Use of deadly force is justified when one
or both of the following apply:
a. to protect the officer or others from
what is reasonably believed to be an
immediate threat of death or serious
bodily injury
and investigated pursuant to this b. to prevent the escape of a fleeing
agency's policies. subject when the officer has probable
cause to believe that the person has
committed, or intends to commit a
felony involving serious bodily injury
or death, and the officer reasonably
believes that there is an imminent risk
of serious bodily injury or death to
the officer or another if the subject is
not immediately apprehended
2. Where feasible, the officer shall identify
himself or herself as a law enforcement
officer and warn of his or her intent to
use deadly force.'
3. Deadly Force Restrictions
a. Deadly force should not be used
against persons whose actions are a
threat only to themselves or property.
b. Warning shots are inherently
dangerous. Therefore, a warning shot
must have a defined target and shall
not be fired unless
(1) the use of deadly force is justified;
(2) the warning shot will not pose a
substantial risk of injury or death
to the officer or others; and
(3) the officer reasonably believes
that the warning shot will reduce
the possibility that deadly force
will have to be used.
c. Firearms shall not be discharged at a
moving vehicle unless
(1) a person in the vehicle is
threatening the officer or another
person with deadly force by
means other than the vehicle; or
(2) the vehicle is operated in a
manner deliberately intended
to strike an officer or another
person, and all other reasonable
means of defense have been
exhausted (or are not present or
practical), which includes moving
out of the path of the vehicle.
d. Firearms shall not be discharged from
a moving vehicle except in exigent
circumstances. In these situations, an
officer must have an articulable reason
for this use of deadly force.
e. Choke holds are prohibited unless
deadly force is authorized.4
E. Training
3 Tennessee v. Garner, 471 U.S. 1 (1985).
4 Note this prohibition does not include the use of vascular neck restraints.
1. All officers shall receive training, at least
annually, on this agency's use of force
policy and related legal updates.
2. In addition, training shall be provided
on a regular and periodic basis and
designed to
a. provide techniques for the use of
and reinforce the importance of de-
escalation;
b. simulate actual shooting situations
and conditions; and
c. enhance officers' discretion and
judgment in using less -lethal and
deadly force in accordance with
this policy.
3. All use -of -force training shall be
documented.
Every effort has been made to ensure that this document incorporates the most current information and contemporary
professional judgment on this issue. However, law enforcement administrators should be cautioned that no "sample"
policy can meet all the needs of any given law enforcement agency.
Each law enforcement agency operates in a unique environment of court rulings, state laws, local ordinances, regulations,
judicial and administrative decisions, and collective bargaining agreements that must be considered, and should therefore
consult its legal advisor before implementing any policy.
DISCUSSION PAPER
This Discussion Paper on the National Consensus Use of Force Policy is a collaborative effort among 11 of the most
significant law enforcement leadership and labor organizations in the United States. The paper reflects the best
thinking of all Consensus organizations and is intended to provide background information for law enforcement
agencies to consider when implementing the National Consensus Policy on Use of Force in their own agencies.
I. INTRODUCTION
Managing uses of force by officers is one of the
most difficult challenges facing law enforcement
agencies. The ability of law enforcement officers
to enforce the law, protect the public, and guard
their own safety and that of innocent bystanders is
very challenging. Interactions with uncooperative
subjects who are physically resistant present
extraordinary situations that may quickly escalate.
Ideally, an officer is able to gain cooperation in such
situations through the use of verbal persuasion and
other de-escalation skills. However, if physical force
is necessary, an officer's use of force to gain control
and compliance of subjects in these and other
circumstances must be objectively reasonable.
While the public generally associates law
enforcement use of force with the discharge of a
firearm, use of force includes a much wider range
of compliance techniques and equipment. These
less intrusive, but more common uses of force may
range from hand control procedures to electronic
control weapons, pepper aerosol spray, or various
other equipment and tactics.
A. National Consensus Policy
on Use of Force
In recognition of the increased focus on law
enforcement use of force, in April 2016, the
International Association of Chiefs of Police and the
Fraternal Order of Police convened a symposium
to discuss the current state of policing, in general,
and use of force, in particular, inviting several of
the leading law enforcement leadership and labor
organizations to attend. The United States Supreme
Court has provided clear parameters regarding
the use of force. However, how this guidance is
operationalized in the policies of individual law
enforcement agencies varies greatly. This creates
a landscape where each agency, even neighboring
jurisdictions, are potentially operating under
differing, inconsistent, or varied policies when it
comes to the most critical of topics.
Symposium members decided to address these
disparities by creating a policy document on use
of force that can be used by all law enforcement
agencies across the country. The goal of this
undertaking was to synthesize the views of the
participating organizations into one consensus
document that agencies could then use to draft or
enhance their existing policies. The final product,
the National Consensus Policy on Use of Force
(Consensus Policy), was published in January 2017.
The Consensus Policy incorporates the most
current information and contemporary professional
judgment and is designed to provide a framework of
critical issues and suggested practices from which
agencies can develop their own use -of -force policies.
It is not intended to be a national standard by which
all agencies are held accountable, and agencies are not
required to institute the Consensus Policy.
Rather, chief executives should use the document
as a guideline, while taking into account the specific
needs of their agencies, to include relevant court
rulings, state laws, local ordinances, regulations,
judicial and administrative decisions, and collective
bargaining agreements. Many chief executives
might wish to make their own policies more
restrictive than the Consensus Policy. As with
any policy, before implementing these suggested
guidelines, agencies should consult their legal
advisors.
This paper is designed to accompany the Consensus
Policy and provide essential background material
and supporting documentation to promote greater
understanding of the developmental philosophy and
implementation guidelines for the Consensus Policy.
Chief executives should use the information
contained herein to better inform their decisions on
whether to implement the various directives found
in the Consensus Policy in their own agencies.
B. Scope of Policy
Law enforcement agencies must provide officers
with clear and concise policies that establish well-
defined guidelines on the use of force. It is essential
that officers have a complete understanding of
agency policy on this critical issue, regularly
reinforced through training. Therefore, a use -of -
force policy should be concise and reflect clear
constitutional guidance to adequately guide officer
decision making. Policies that are overly detailed
and complex are difficult for officers to remember
and implement and, as such, they create a paradox.
While they give officers more detailed guidance,
they can also complicate the ability of officers to
make decisions in critical situations when quick
action and discretion are imperative to successful
resolutions. The Consensus Policy is purposefully
short and provides the necessary overarching
guidelines in a succinct manner, while restricting
force in certain situations.
Some agencies may choose to develop separate
policies on less -lethal versus deadly force. However,
law enforcement use of both deadly and less -lethal
force is governed by the same legal principles and,
therefore, the Consensus Policy elects to address the
entire spectrum of force in one document. While
the development of individual policies on the use of
specialized force equipment is a prudent approach,
the legal grounds for selection and application of
any force option applied against a subject should
be based on the same legal principles cited in the
Consensus Policy.
It is also not the intended scope of either the
Consensus Policy, or this discussion document, to
address issues relating to reporting use -of -force
incidents; training of officers in the handling,
maintenance, and use of weapons; investigation of
officer -involved shooting incidents; officer post -
shooting trauma response; and early warning
systems to identify potential personnel problems.
Instead, agencies are urged to develop separate
policies addressing each of these topics.
. Legal Considerations
Use of force may have potential civil and criminal
consequences in state or federal courts or both.
As scores of these actions have demonstrated,
the scope and the wording of agency policy can
be crucial to the final resolution of such cases. It
should be emphasized that liability can arise for
an involved officer; the law enforcement agency;
agency administrator(s); and the governing
jurisdiction.
At a minimum, agency policy must meet state
and federal court requirements and limitations
on the use of force, with the U.S. Constitution
forming the baseline for the establishment of
rights. While states cannot take away or diminish
rights under the U.S. Constitution, they can, and
often do, expand upon those rights. In such cases,
law enforcement administrators must establish an
agency policy that meets the more stringent use -
of -force guidelines of their state constitution and
statutory or case law interpreting those provisions.
It is strongly recommended that this and other
policies undergo informed, professional legal review
before they are sanctioned by the agency.
A. Use of Policy in Court
Courts vary as to whether agency policy can
be introduced and carry the same weight as
statutory law. However, in some cases, it may be
permissible to introduce at trial the issue of officer
noncompliance for whatever weight and significance
a jury feels appropriate. Law enforcement
administrators should develop strong and definitive
policies and procedures without fear that they
might prove prejudicial to a future court assessment
of an officer's conduct. In fact, by adopting a use-
of -force policy in clear and unequivocal terms,
agencies can prevent more serious consequences for
themselves, their officers, and their jurisdiction.
B. Federal Guidelines for Use of Force
There are two landmark decisions by the United
States Supreme Court that guide law enforcement
use of force: Tennessee v. Garner and Graham v.
Connor.' Following is a brief review of each case.
Tennessee v. Garner. In Garner, a Memphis,
Tennessee, police officer, acting in conformance
with state law, shot and killed an unarmed youth
fleeing over a fence at night in the backyard of a
house he was suspected of burglarizing. The court
held that the officer's action was unconstitutional
under 42 U.S.C. 1983, stating that "such force may
not be used unless it is necessary to prevent the
escape and the officer has probable cause to believe
that the suspect poses a significant threat of death
or serious physical injury to the officer or others."'
The court ruled that apprehension by the use of
deadly force is a seizure subject to the Fourth
Amendment's reasonableness requirement. Thus,
even where an officer has probable cause to arrest
someone, it may be unreasonable to do so through
the use of deadly force.
Graham v. Connor. In Graham, a diabetic man
seeking to counter the effects of an insulin
reaction entered a convenience store with the
intent of purchasing some orange juice. After
seeing the line of people ahead of him, Graham
quickly left the store and decided instead to go to
a friend's house. An officer at the store, Connor,
determined Graham's behavior to be suspicious
and proceeded to follow and then stop the car
in which Graham was a passenger. Graham was
subsequently handcuffed and received multiple
injuries, despite attempts to inform Connor and the
other responding officers of his medical condition.
Graham was released once Connor confirmed that
no crime had been committed in the store, but later
filed suit alleging excessive use of force.
The court ruled that claims of law enforcement
excessive use of force must be analyzed using an
"objective reasonableness" standard. Specifically,
the court stated "[t]he Fourth Amendment
`reasonableness' inquiry is whether the officers'
actions are `objectively reasonable' in light of the
facts and circumstances confronting them, without
regard to their underlying intent or motivation. The
`reasonableness' of a particular use of force must be
judged from the perspective of a reasonable officer
on the scene, and its calculus must embody an
allowance for the fact that police officers are often
forced to make split-second decisions about the
amount of force necessary in a particular situation."'
C. Defining a Reasonable Use of Force
The potential of civil or criminal litigation
involving deadly force incidents also necessitates
close scrutiny of the language employed in a
use -of -force policy by legal authorities. Law
enforcement administrators should work closely
with knowledgeable attorneys in determining the
suitability of the use -of -force policy to their local
requirements, needs, and perspectives. Deliberation
over phrasing or word usage might seem
inconsequential or excessive, but such terms can,
and do, have significant consequences in a litigation
context.
The use of commonly employed terms and
phrases, even though well intentioned, can cause
unexpected and unnecessary consequences for the
officer and the agency. For example, phrases like
"officers shall exhaust all means before resorting
to the use of deadly force" present obstacles to
effective defense of legitimate and justifiable uses of
force. Such language in a policy can unintentionally
impose burdens on officers above those required
by law.
1 Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989).
2 Garner, 471 U.S. 1.
3 Graham, 490 U.S. at 396-397.
The foregoing discussion is not meant to suggest
that law enforcement agency policy must be
established only with potential litigation in mind.
On the contrary, law enforcement administrators
should use language that properly guides officers'
decision -making consistent with agency goals and
values while also protecting the officer, the agency,
and the community from unnecessary litigation.
There is value in using verbiage from statutes,
case law, and regulations in policy as a means of
providing officers with clearer guidance.
Training should effectively translate the general
guiding principles of agency policy and operational
procedures into real -world scenarios through
understanding and practice. Training shares an
equal importance in agency efforts to control and
manage the use of force and, as such, can have a
significant impact on an agency's efforts to defend
the use of force in court or other contexts.
III. Overview
A. Guiding Principles
It should be the foremost policy of all law
enforcement agencies to value and preserve
human life. As guardians of their communities,
officers must make it their top priority to protect
both themselves and the people they serve
from danger, while enforcing the laws of the
jurisdiction. However, there are situations where
the use of force is unavoidable. In these instances,
officers must "use only the amount of force that
is objectively reasonable to effectively bring an
incident under control, while protecting the safety
of the officer and others." 4 Introduced in Graham,
the "objectively reasonable" standard establishes
the necessity for the use and level of force to
be based on the individual officer's evaluation
of the situation considering the totality of the
circumstances.' This evaluation as to whether or
not force is justified is based on what was reasonably
believed by the officer, to include what information
others communicated to the officer, at the time
the force was used and "upon what a reasonably
prudent officer would use under the same or similar
circumstances." This standard is not intended
to be an analysis after the incident has ended of
circumstances not known to the officer at the time
the force was utilized.
The totality of the circumstances can include, but is
not limited to, the immediate threat to the safety of
the officer or others; whether the subject is actively
resisting; the time available for the officer to make
decisions in circumstances that are tense, uncertain,
and rapidly evolving; the seriousness of the crime(s)
involved; and whether the subject is attempting to
evade or escape and the danger the subject poses
to the community. Other factors may include
prior law enforcement contacts with the subject
or location; the number of officers versus the
number of subjects; age, size, and relative strength
of the subject versus the officer; specialized
knowledge skill or abilities of the officer; injury
or level of exhaustion of the officer; whether the
subject appears to be affected by mental illness
or under the influence of alcohol or other drugs;
environmental factors such as lighting, terrain,
radio communications, and crowd -related issues;
and the subject's proximity to potential weapons.
The decision to employ any force, including the use
of firearms, may be considered excessive by law and
agency policy or both, if it knowingly exceeded a
degree of force that reasonably appeared necessary
based on the specific situation. It is important to
note that in Graham, the U.S. Supreme Court
recognized that law enforcement officers do not
need to use the minimum amount of force in any
given situation; rather, the officer must use a force
option that is reasonable based upon the totality
of the circumstances known to the officer at the
time the force was used. Use -of -force decisions
are made under exceedingly varied scenarios and
often on a split-second basis. Based on this fact,
4 ASCIA, CALEA, FOP, FLEOA, IACP, HAPCOA, IADLEST, NAPO, NAWLEE, NOBLE, and NTOA, National Consensus
Policy on Use of Force, January 2017, 2, http://www.theiacp.org/Portals/O/documents/pdfs/National_Consensus_Policy_On_
Use_Of_Force.pdf.
5 Graham, 490 U.S. at 396.
state and federal courts have recognized that law
enforcement officers must be provided with the
necessary knowledge and training to make such
decisions, in addition to attaining proficiency with
firearms and other less -lethal force equipment
and force techniques that may be used in the line
of duty.
B. De -Escalation
De-escalation is defined as "taking action or
communicating verbally or non -verbally during a
potential force encounter in an attempt to stabilize
the situation and reduce the immediacy of the
threat so that more time, options, and resources
can be called upon to resolve the situation without
the use of force or with a reduction in the force
necessary."6 The term de-escalation can be viewed
as both an overarching philosophy that encourages
officers to constantly reassess each situation to
determine what options are available to effectively
respond, as well as the grouping of techniques
designed to achieve this goal. In most instances, the
goal of de-escalation is to slow down the situation
so that the subject can be guided toward a course
of action that will not necessitate the use of force,
reduce the level of force necessary, allow time
for additional personnel or resources to arrive, or
all three.
De-escalation is not a new concept and has been
part of officer training for decades. Historically, de-
escalation has been employed when officers respond
to calls involving a person affected by mental
illness or under the influence of alcohol or other
drugs. In these situations, an officer is instructed
to approach the individual in a calm manner and
remain composed while trying to establish trust and
rapport. Responders are taught to speak in low, or
nonthreatening tones, and use positive statements
such as "I want to help you" intended to aid in the
process of calming the subject. Awareness of body
language is also significant. For example, standing
too close to an angry or agitated person might cause
them to feel threatened.
6 National Consensus Policy on Use of Force, 2.
Another de-escalation technique is tactical
repositioning. In many cases, officers can move to
another location that lessens the level of danger.
An example is an incident involving an individual
with a knife. By increasing the distance from the
individual, officers greatly reduce the risk to their
safety and can explore additional options before
resorting to a use of force, notwithstanding the
need to control the threat to others.
Many of these steps —speaking calmly, positioning
oneself in a nonthreatening manner, and
establishing rapport through the acknowledgment
of what the person is feeling —are easily transferred
from Crisis Intervention Training for persons
affected by mental illness to de-escalation
encounters with people in general. While these
tactics are recommended steps, officers must
continually reassess each situation with the
understanding that force may be necessary if
de-escalation techniques are not effective.
One concern with de-escalation is that it can place
officers in unnecessary danger. By overemphasizing
the importance of de-escalation, officers might
hesitate to use physical force when appropriate,
thereby potentially resulting in an increase in line -
of -duty deaths and injuries. Consequently, it should
be stressed that de-escalation is not appropriate in
every situation and officers are not required to use
these techniques in every instance. If the individual
poses a threat of injury or death to the officer
or another, the officer must be permitted to use
the level of force necessary to reasonably resolve
the situation.
Agencies should strive to encourage officers to
consider how time, distance, positioning, and
especially communication skills may be used to
their advantage as de-escalation techniques and
as potential alternatives to force and to provide
training on identifying when these techniques will
be most useful to mitigate the need for force.
C. Force Models
The variety of compliance options available to law
enforcement officers in a confrontational setting
can be referred to as a force model. Using the
variety of different options found in this model,
officers are expected to employ only a degree
of force that is objectively reasonable to gain
control and compliance of subjects. Some agencies
may refer to this as the use -of -force continuum.
However, the use of the term "continuum" is often
interpreted to mean that an officer must begin at
one end of a range of use -of -force options and then
systematically work his or her way through the
types of force that follow on the continuum, such
as less -lethal force options, before finally resorting
to deadly force. In reality, to maintain the safety of
both the officer and others, an officer might need
to transition from one point on the continuum
to another, without considering the options in
between in a linear order. For instance, when faced
with a deadly threat, it is not prudent to expect
an officer to first employ compliance techniques,
followed by an electronic control weapon, and only
then use his or her firearm. For this reason, the use
of a continuum is strongly discouraged. Instead,
force models are preferred that allow officers
to choose a level of force that is based on legal
principles, to include the option of immediately
resorting to deadly force where reasonable
and necessary.
As noted previously, many law enforcement
agencies prefer to develop separate less -lethal and
deadly force policies. In addition to the comments
previously made on this topic, there are several
other reasons why the Consensus Policy combines
these into a single use of force policy. But perhaps
most importantly, integrating both deadly and
less -lethal force guidelines into one policy serves to
illustrate and reinforce for the officer the concept
of the use of force as an integrated, or response,
model. By placing both sets of guidelines under
one heading, an officer consulting the policy is
7 National Consensus Policy on Use of Force, 2.
8 Ibid.
encouraged to view force on a broader, more
integrated conceptual basis.
Effective guidance for law enforcement officers
on use of force, whether with firearms or by other
means or tactics, must recognize and deal with
force in all its forms and applications and with the
officer's ability to adjust his or her response as the
subject's behavior changes.
Whether an agency chooses to adopt a force model
or continuum, the various levels of force must be
defined and the guidelines for their use must be
clearly outlined in agency policy and reinforced by
training. Policies must also enumerate and address
all force options permitted by the agency. Per the
Consensus Policy, these levels should include less -
lethal force and deadly force.
D. Defining Deadly and
Less -Lethal Force
The Consensus Policy employs the terms deadly
force and less -lethal force. Deadly force is defined
as "any use of force that creates a substantial risk of
causing death or serious bodily injury."' The most
common example of deadly force is the use of a
handgun or other firearm.
Less -lethal force is "any use of force other than
that which is considered deadly force that involves
physical effort to control, restrain, or overcome
the resistance of another."' This includes, but is
not limited to, an officer's use of come -along holds
and manual restraint, as well as force options
such as electronic control weapons, pepper
aerosol spray, and impact projectiles. It does not
include verbal commands or other nonphysical
de-escalation techniques.
The difference between deadly and less -lethal
force is not determined simply by the nature of the
force technique or instrument that is employed by
an officer. Many force options have the potential
to result in the death or serious bodily injury of a
subject under certain circumstances. For example,
a police baton, if used properly in accordance
with professionally accepted training guidelines,
is not likely to cause death. But it can result in
the death of subjects when used inappropriately
by an officer who lacks training, or in situations
where blows are accidentally struck to the head
or other vulnerable area of the body. The same
could be said for a variety of other equipment used
by law enforcement officers. Therefore, a key to
understanding what separates deadly force from
less -lethal force has to do with the likelihood that
a given use of force will result in death, whether
it involves a handgun or other weapon or even an
object that may be close at hand.
Use of force that is likely to cause death or serious
bodily injury is properly judged using a reasonable
officer standard —how would a reasonably prudent
law enforcement officer act under the same
or similar circumstancesj9 This standard is an
objective test. That is, it is not based on the intent
or motivation of the officer or other subjective
factors at the time of the incident. It is based solely
on the objective circumstances of the event and the
conclusion that would be drawn by a "reasonable
officer on the scene."10
In determining the proper degree of force to
use, officers are authorized to use deadly force
to protect themselves or others from what is
reasonably believed to be a threat of death or
serious bodily harm. Officers have the option of
using less -lethal force options where deadly force is
not authorized, but may use only that level of force
that is objectively reasonable to bring the incident
under control.
E. Additional Definitions
Understanding of additional terms is helpful for the
following discussion.
Exigent circumstances are "those circumstances that
would cause a reasonable person to believe that a
particular action is necessary to prevent physical
harm to an individual, the destruction of relevant
evidence, the escape of a suspect, or some other
consequence improperly frustrating legitimate law
enforcement efforts.""
An immediate, or imminent, threat can be described
as danger from an individual whose apparent intent
is to inflict serious bodily injury or death and the
individual has the ability and opportunity to realize
this intention.
IV. PROCEDURES
A. General Provisions
The Consensus Policy begins by providing general
guidance that holds true for all situations involving
the use of force. First, officers must continually
reassess the situation, where possible, and ensure
that the level of force being used meets the
objective reasonableness standard. In situations
where the subject either ceases to resist or the
incident has been effectively brought under
control, the use of physical force should be reduced
accordingly. If the level of force exceeds what is
necessary to control a subject, then the officer can
be subject to allegations of excessive force.
Physical force should not be used against individuals
in restraints unless failure to do so would result in
the individual fleeing the scene or causing imminent
bodily injury to himself or herself, the officer, or
another person. Damage to property should not
be considered a valid reason to use force against
an individual in restraints. There might also be
instances where handcuffed individuals are able
to run from officers in an attempt to escape. In
these situations, physical force may be allowable
per policy, but only the minimal amount of force
9 Serious bodily injury is defined as "injury that involves a substantial risk of death, protracted and obvious disfigurement, or
extended loss or impairment of the function of a body part or organ."
10 Connor, 490 U.S. at 396.
11 Based on the definition from United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).
necessary to control the situation should be used
deadly force will almost always be prohibited in
these cases.
As previously stated, the ultimate goal of law
enforcement officers is to value and preserve human
life. Therefore, the Consensus Policy requires
officers to provide medical care to anyone who is
visibly injured, complains of injury, or requests
medical attention.12 This should be undertaken
after the officers have ensured that the scene is
safe and it is practical to do so. In addition, officers
should only provide care consistent with their
training, to include providing first aid. Additional
appropriate responses include requesting emergency
medical services and arranging for transportation to
an emergency medical facility.
When verbal commands are issued, the individual
should be provided with a reasonable amount of
time and opportunity to respond before force is
used, with the understanding that such a pause
should not "compromise the safety of the officer
or another and will not result in the destruction of
evidence, escape of a suspect, or commission of a
crime."13 This is to prevent instances where officers
use force immediately following a verbal command
without providing the subject with an opportunity
to comply and might also apply in such situations
where an electronic control weapon is used and the
individual is physically incapable of responding due
to the effects of the weapon.
While the Consensus Policy strives to prohibit
excessive force, the reality is that excessive force
can occur no matter how well -crafted the policy
or extensive the training. In these situations, it is
crucial that other officers at the scene intervene
to prevent or stop the use of excessive force. By
requiring a pro -active approach to these situations
and encouraging accountability for all officers on
the scene, agencies can work toward preventing
excessive uses of force.
Finally, while it is not the scope of the Consensus
Policy or this document to provide specific
guidelines on these topics, agencies must develop
comprehensive policies for documenting,
investigating, and reviewing all uses of force.
Agency transparency to the public regarding these
policies will help to foster public trust and assure
the community that agencies are aware of and
properly responding to use of force by their officers.
Moreover, force review will help to assure that
agency policies are being followed and will give
the agency the opportunity to proactively address
deficiencies in officer performance or agency policy
and training or both.
B. De -Escalation
Procedurally, whenever possible and appropriate,
officers should utilize de-escalation techniques
consistent with their training before resorting to
using force or to reduce the need for force. In many
instances, these steps will allow officers additional
time to assess the situation, request additional
resources, and better formulate an appropriate
response to the resistant individual, to include
the use of communication skills in an attempt to
diffuse the situation. However, as previously stated,
de-escalation will not always be appropriate and
officers should not place themselves or others in
danger by delaying the use of less -lethal or even
deadly force where warranted.
C. Less -Lethal Force
In situations where de-escalation techniques are
either ineffective or inappropriate, and there is a
need to control a noncompliant or actively resistant
individual, officers should consider the use of less -
lethal force. In these cases, officers should utilize
only those less -lethal techniques or weapons the
agency has authorized and with which the officer
has been trained. As with any force, officers may
12 Note that "providing medical care" does not necessarily require that the officer administer the care himself or herself. In some
situations, this requirement may be satisfied by securing the skills and services of a colleague, emergency medical personnel,
etc.
13 National Consensus Policy on Use of Force, 3.
use only that level of force that is objectively
reasonable to bring the incident under control.
Specifically, the Consensus Policy outlines three
instances where less -lethal force is justified. These
include "(1) to protect the officer or others from
immediate physical harm, (2) to restrain or subdue
an individual who is actively resisting or evading
arrest, or (3) to bring an unlawful situation safely
and effectively under control."14
As noted in the prior discussion of the force model,
use of force can range widely. Therefore, law
enforcement officers should have at their disposal
a variety of equipment and techniques that will
allow them to respond appropriately to resistant
or dangerous individuals. The Consensus Policy
does not advocate the use of any specific less -lethal
force weapons. Instead, the appropriateness of any
such weapon depends on the goals and objectives
of each law enforcement agency in the context
of community expectations. Less -lethal weapons
and techniques are being continuously introduced,
refined, and updated, so law enforcement
administrators must routinely assess current options
and select equipment that is appropriate for their
agency. A critical element of that decision -making
process is an assessment of the limitations of each
device or technique, and environmental factors
that might impact its effectiveness. However, it is
suggested that law enforcement agencies ban the
use of several types of less -lethal impact weapons
that are designed to inflict pain rather than affect
control. These include slapjacks, blackjacks,
brass knuckles, nunchucks, and other martial
arts weapons.
14 National Consensus Policy on Use of Force, 3.
15 National Consensus Policy on Use of Force.
16 Ibid.
D. Deadly Force
Authorized Uses of Deadly Force. As with
all uses of force, when using deadly force, the
overarching guideline that applies to all situations is
that the force must be "objectively reasonable under
the totality of the circumstances." The Consensus
Policy identifies two general circumstances in which
the use of deadly force may be warranted. The first
instance is to "protect the officer or others from
what is reasonably believed to be an immediate
threat of death or serious bodily injury."15 Second,
law enforcement officers may use deadly force "to
prevent the escape of a fleeing subject when the
officer has probable cause to believe that the person
has committed, or intends to commit a felony
involving serious bodily injury or death, and the
officer reasonably believes that there is an imminent
risk of serious bodily injury or death to the officer
or another if the subject is not immediately
apprehended."16 In such cases, a threat of further
violence, serious bodily injury, or death must
impose clear justification to use deadly force.
For example, use of deadly force would be justified
in instances where an officer attempts to stop the
escape of a fleeing violent felon whom the officer
has identified as one who has just committed a
homicide, and who is armed or is likely to be armed
in light of the crime. However, the potential escape
of nonviolent subjects does not pose the same
degree of risk to the public or the officer, and use of
deadly force to prevent his or her escape would not
be justifiable under the Consensus Policy.
If a decision has been made to employ deadly force,
a law enforcement officer must, whenever feasible,
identify himself or herself, warn the subject of his
or her intent to use deadly force, and demand that
the subject stop. This requirement was made clear
in the Garner decision. If issuing a verbal warning Essentially, the intent of the Consensus Policy is
presents a heightened risk to the safety of the to provide officers with an alternative to deadly
officer or another person, the officer may employ force in the very limited situations where these
deadly force without delay. conditions are met.
Deadly Force Restrictions. Deadly force is
prohibited when the threat is only to property.
In addition, officers should avoid using deadly
force to stop individuals who are only a threat to
themselves, unless the individual is using a deadly
weapon such as a firearm or explosive device that
may pose an imminent risk to the officer or others
in close proximity. If the individual is attempting
to inflict self -harm with means other than a deadly
weapon, the officer should consider less -lethal
options and de-escalation techniques, if practical.
Warning Shots. Perhaps the most debated inclusion
in the Consensus Policy is the allowance for warning
shots. Their inclusion in the Consensus Policy
should not prevent an agency from establishing
a more restrictive policy on the topic. Defined
as "discharge of a firearm for the purpose of
compelling compliance from an individual, but not
intended to cause physical injury," warning shots
are inherently dangerous." However, the Consensus
Policy outlines very strict guidelines for their use in
an effort to address this threat, while still providing
latitude for officers to use this technique as a viable
alternative to direct deadly force in extreme and
exigent circumstances. The Consensus Policy states
that warning shots must have a defined target, with
the goal of prohibiting shots fired straight up in
the air. In addition, warning shots should only be
considered if deadly force is justified, so in response
to an immediate threat of death or serious bodily
injury, and when "the officer reasonably believes
that the warning shot will reduce the possibility
that deadly force will have to be used."" Finally,
the warning shot must not "pose a substantial
risk of injury or death to the officer or others.""
Shots Discharged at Moving Vehicles.20 The use
of firearms under such conditions often presents
an unacceptable risk to innocent bystanders. Even
if successfully disabled, the vehicle might continue
under its own power or momentum for some
distance thus creating another hazard. Moreover,
should the driver be wounded or killed by shots
fired, the vehicle might proceed out of control
and could become a serious threat to officers and
others in the area. Notwithstanding, there are
circumstances where shooting at a moving vehicle is
the most appropriate and effective use of force.
Officers should consider this use of deadly force
only when "a person in the vehicle is immediately
threatening the officer or another person with
deadly force by means other than the vehicle," or
when the vehicle is intentionally being used as a
deadly weapon and "all other reasonable means of
defense have been exhausted (or are not present
or practical)."21 Examples of circumstances where
officers are justified in shooting at a moving
vehicle include when an occupant of the vehicle is
shooting at the officer or others in the vicinity or,
as has happened recently, the vehicle itself is being
used as a deliberate means to kill others, such as
a truck being driven through a crowd of innocent
bystanders. Even under these circumstances, such
actions should be taken only if the action does not
present an unreasonable risk to officers or others,
when reasonable alternatives are not practical, when
failure to take such action would probably result
in death or serious bodily injury, and then only
when due consideration has been given to the safety
of others in the vicinity. In cases where officers
believe that the driver is intentionally attempting
17 National Consensus Policy on Use of Force, 3.
18 National Consensus Policy on Use of Force, 4.
19 Ibid.
20 For information regarding United States Supreme Court cases addressing firing at a moving vehicle, see Plumhoff v. Rickard,
134 S. Ct. 2012 and Mullenix v. Luna, 577 U.S. _ (2015) and the accompanying amicus curiae brief.
21 National Consensus Policy on Use of Force, 4.
to run them down, primary consideration must be
given to moving out of the path of the vehicle. The
Consensus Policy recognizes that there are times
when getting out of the way of the vehicle is not
possible and the use of a firearm by the officer may
be warranted.
Shots Discharged from a Moving Vehicle.
When discussing whether or not officers should
be permitted to fire shots from a moving vehicle,
many of the same arguments can be made as firing
at a moving vehicle. Most notably, accuracy of shot
placement is significantly and negatively affected
in such situations, thereby substantially increasing
the risk to innocent bystanders from errant shots.
Therefore, the Consensus Policy prohibits officers
from discharging their weapons from moving
vehicles unless exigent circumstances exist. In
these situations, as with all instances where exigent
circumstances are present, the officer must have an
articulable reason for this use of deadly force.
Choke Holds. For the purposes of this document,
a choke hold is defined as "a physical maneuver that
restricts an individual's ability to breathe for the
purposes of incapacitation."22 In the most common
choke hold, referred to as an arm -bar hold, an
officer places his or her forearm across the front
of the individual's neck and then applies pressure
for the purpose of cutting off air flow. These are
extremely dangerous maneuvers that can easily
result in serious bodily injury or death. Therefore,
the Consensus Policy allows their use only when
deadly force is authorized."
E. Training
While it is crucial that law enforcement agencies
develop a clear, concise policy regarding the use
of force, it is equally important that officers are
completely familiar with and fully understand the
policy and any applicable laws. Therefore, officers
should receive training on their agency's use -of -
force policy and any accompanying legal updates
on at least an annual basis. Training should also
be provided on all approved force options and
techniques permitted by agency policy, along with
regular refresher training that includes a review
of the policy and hands-on, practical training. In
addition, officers should also receive regular and
periodic training related to de-escalation techniques
and the importance of de-escalation as a tactic,
as well as training designed to "enhance officers'
discretion and judgment in using less -lethal and
deadly force."14
Firearms training should simulate actual shooting
situations and conditions. This includes night or
reduced light shooting, shooting at moving targets,
primary- or secondary -hand firing, and combat
simulation shooting. Firearms training should
attempt to simulate the actual environment and
circumstances of foreseeable encounters in the
community setting, whether urban, suburban, or
rural. A variety of computer -simulation training is
available together with established and recognized
tactical, exertion, and stress courses.
Law enforcement administrators, agencies, and
parent jurisdictions may be held liable for the
actions of their officers should they be unable to
verify that appropriate and adequate training has
been received and that officers have successfully
passed any testing or certification requirements.
Accordingly, agencies must provide responsive
training, and all records of training received
by officers must be accurately maintained for
later verification.
22 National Consensus Policy on Use of Force, 2.
23 A note regarding choke holds —the vascular neck restraint is not included in the definition of "choke hold" and thus its use is
not restricted to deadly force situations.
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