Is the use of a K-9 to prevent a suspect from escaping an excessive use of force? (iStockphoto)
FEATURED IN TACTICS AND WEAPONS
Within the professional law enforcement community, there are five recognized and accepted purposes for which a legitimate use of force might be justified. These five well-defined and established purposes are frequently referred to as the "Rules of Engagement" and are basically categorized as:
- Self Defense a right common to all persons
- Defense of Others a DUTY assigned to police personnel
- Effectuate an Arrest a vested authority granted by law
- Prevent an Escape a vested authority granted by law
- Overcome Resistance a vested authority granted by law
The absolute RIGHT of self-defense applies to everyone including law enforcement officers. The DUTY to defend others is inherent in the law enforcement mission. The authority to deploy objectively reasonable force to effectuate an arrest is found in both federal and state laws along with the prohibition for the arrestee to use force or violence to resist the arrest. Hence, the first three "Rules of Engagement" are rather clear and well understood by professionally trained law enforcement officers. Various court rulings have long established such basic police principles.
That said, the fourth "Rule of Engagement" is a bit more complicated based on the evolutionary nature of case law. Historically, law enforcement officers were granted great latitude and discretion concerning the use and amount of force to prevent an escape or to recapture a fleeing suspect. Over the years, various states adopted various standards and individual agencies promulgated a wide array of policies and practices.
It is significant to note that the United States Constitution requires that all persons be treated equally in the eyes of the law. This applies to all persons regardless of their citizenship, gender, ethnicity, religious beliefs or any other distinctive factors. While much of the debate on "Equal Rights" has focused on racial differences, other classes and groups have emerged to claim similar protection. The point being that significant social issues no longer comport with a simple "black and white" analysis. For the modern law enforcement officer, it is essential to develop a fundamental understanding that all persons enjoy the full force and protection of the Constitution of the United States.
In the late 1960s, your authors participated in a nationwide review of police use of force practices. Open and candid statements attributed to various police executives and trainers clearly demonstrated an irregular understanding of WHEN deadly force might be used to re-capture a fleeing suspect. It was undeniably true that a particular type of suspect might be shot in one jurisdiction and not shot in another. Likewise, it was readily apparent that certain racial groups or types of offenders might receive a certain level of force while others might not. Early statistical analysis performed by objective and balanced researchers confirmed and defined this disparity of treatment.
So, what do you think the higher courts might do when such a serious disparity exists among the jurisdictions throughout the country? If we are to be a civilized society committed to the rule of law, then such irregular and regional applications of force certainly require corrective measures. In 1985, the United States Supreme Court accepted this responsibility in a ruling known as Tennessee vs. Garner. It is interesting to note that some individual states actually attempted to rectify the underlying disparity prior to the 1985 federal ruling, but these efforts often created more confusion concerning the legitimate use of force to either prevent an escape, capture a fleeing suspect or re-take a fugitive. Essentially, the 1985 federal ruling put an end to the confusion by establishing a national standard based on constitutional law.
Briefly, the initial state rulings, later followed by the 1985 federal ruling recognized that the common law understanding of a FELONY crime classification was an inadequate and outdated criterion upon which force applications could be justified. Historically, a FELONY crime represented a very serious offense that generally exposed a convicted perpetrator to a significant prison sentence or capital punishment. In more modern times, the administration of justice has determined that many FELONY crimes are not life threatening, such as property crimes, and are therefore less serious in nature and less likely to result in a death penalty application. It is because of this underlying legal principle that many authors, scholars and practitioners frequently couch this discussion in terms of the "fleeing felon" rule. The terms FELONY CAR STOP or FELONY PRONE evolved as common language in law enforcement training and field usage as a means to justify enhanced tactics. This terminology can be and has been misleading because it tends to oversimplify the rather complex calculations now required by an arresting officer in circumstances that are quite often "tense, uncertain and rapidly evolving."
In modern times, the use of force to prevent an escape must be objectively reasonable to the prevailing circumstances. For example, a police officer placing a detainee inside a secured police vehicle in furtherance of a preliminary field investigation is a common and accepted police procedure that affords increased safety and security for both the officer and the detainee. If such a scenario evolves into an arrest situation, then the proper handcuffing of the subject is an expected and proper police procedure. These two basic examples illustrate that everyday, non-remarkable police activities actually include constitutional elements that often to go unnoticed and frequently unreported because most arrests are accomplished with very low to moderate force applications.
A very significant point to be observed and understood here is that all arrests involve some use of force. A motorist detained during a traffic stop and placed in the rear of a police vehicle and later arrested for outstanding traffic warrants is an example of a common escalation of force calculated to prevent an escape.
In a more remarkable case, police officers engaged in a potential high-risk foot pursuit of an ARMED and DANGEROUS robbery suspect came upon a residential backyard scene in which the suspect was attempting to vault a wooden fence to evade arrest. If permitted to get over the fence, the suspect would have gained a significant tactical advantage over pursuing officers as well as the opportunity to force an entry into a residence or commandeer a vehicle. Four of the pursuing police officers FIRED at the fleeing suspect, causing him to fall wounded and immobilized at the fence line. While all of the involved officers possessed slightly different information and had slightly different perceptions, each officer determined independently that SHOOTING the fleeing suspect was an appropriate response to an obviously high risk and dangerous situation. In short, the four police officers reached a common conclusion based on their background, training and experience.
QUESTION: What is the appropriate and legitimate amount of force to be applied when a suspect flees or attempts to flee?
ANSWER: It depends. Each and every application of force must be objectively reasonable to the facts and circumstances then known to the on-scene arresting officer. Facts not known to the officer at the time or facts discovered at some later time cannot be relied upon to justify any particular use of force.
For example, a police officer effectuates a traffic stop of a vehicle based on a lighting equipment violation. The vehicle yields and pulls over to the curb. The vehicle contains two subjects and a registration check does not indicate any irregularities. At the point that the officer approaches the driver subject, the passenger subject suddenly opens the right-side door, gets out and begins to run away. The officer yells "HALT" and observes that the "running man" continues to flee. This example is not far-fetched from the realities of police work.
QUESTION: What is the appropriate and legitimate amount of force to be applied in response to the circumstances described in the above example?
From a tactical perspective, the use of a police canine seems to be an appropriate and most likely effective response to the "running man" example. Of course, such a use of force would probably result in the arrest of and injuries to the suspect. Following the arrest, medical care and jailing of the suspect, the involved officer will be required to prepare verbal or written reports detailing the incident and justifying the use of force. At some later time, the officer may face an administrative review and even a lawsuit.
QUESTION: Do we (you) have a problem with the above hypothetical use of force?
ANSWER: Absolutely. The example offered lacks any substantive information to legitimize the arrest of the "running man" suspect or the use of a police canine that has a predictable injury consequence. Even if the suspect was later determined to have run to avoid an outstanding arrest warrant, that fact was not known to the officer at the time of the force application.
The quandary to be addressed here is WHY was the use of DEADLY FORCE to stop the ARMED robbery suspect from jumping over the fence objectively reasonable, and the use of a police service dog to stop the "running man" during a traffic stop patently unreasonable. The answer to this quandary can be found in the federal rulings and state laws defining the police authorities and limitations specific to preventing an escape or recapturing a fleeing suspect.
In the ARMED robbery incident, each of the involved officers had solid knowledge of the violent crimes committed by the suspect and his demonstrated level of resistance to being arrested. Each officer possessed solid information that the subject was ARMED and DANGEROUS and represented a clear and present high risk and threat to their safety and that of the community. Each officer independently concluded that the ARREST should not be delayed even so far as to enter the adjacent property.
In the "running man" scenario, the only articulated probable cause seems to address the driver of the vehicle concerning a minor mechanical traffic violation. There is a lack of any information to connect the passenger to any arrestable violation of law. There is no information to suggest that the passenger represented a threat to the police officer or to the community. As presented, the only reliable information offered is the arrest warrant information that was discovered only after the forceful arrest was effectuated.
From an experienced law enforcement perspective, both suspects qualify for arrest, one being far more compelling than the other. This analysis does not question that a properly trained police officer would respond to both of the described circumstances or that an arrest was to be expected. What is open for analysis and consideration is the intellectual judgment concerning the AMOUNT of force to be legitimately deployed.
The critical factors that must affect your reasoning in such circumstances include:
- Only those facts or observations known to the on-scene officer at the time of the force application.
- The nature and seriousness of the crime or crimes attributed to the person to be forcefully arrested.
- The known history of the person to be forcefully arrested concerning previous levels of violence and/or levels of resistance.
- The observed levels of active resistance and the apparent risks to the arresting officers in the immediate scene as well as the expected risks to arresting officers in subsequent scene if the arrest is delayed. This criterion includes any information or observation that the subject is or probably is ARMED or might gain access to weapons.
- The observed or reasonably perceived threats to the safety of the community or other persons if the arrest is delayed.
- The known status of the offender in terms of active parole, active probation, outstanding arrest warrant or other applicable court order.
- The proportionality of the force to be deployed and the reasonable expectation of consequence consistent with the apparent need to effectuate the arrest.
- The practical and tactical considerations indicating and supporting the arresting officer's judgment to effectuate the arrest without delay.
In reviewing the above critical factors, it becomes clear that the Courts now apply a Fourth Amendment test of reasonableness on a case-specific basis; meaning that there is no single, universal, or precise scale. The use of force to prevent an escape or re-capture a fleeing suspect will be measured against the objectively reasonable standard applied exclusively to the facts and observations available to the on-scene arresting officer at the time of the forceful arrest. Each incident will be evaluated on its own merits and not to a "20/20 hindsight" standard.
Having participated in thousands of civil lawsuits, criminal prosecutions and administrative reviews, your authors have observed a significant pattern of substandard report writing rather than actual police misconduct. It has been our collective experience that most use of force applications are indeed appropriate and even necessary to the prevailing arrest circumstances, but the critical factors necessary to the constitutional evaluation are frequently overlooked in the report writing process. This common failure undermines the officer's ability to simply explain the reasonableness of the force application.
An arrest is essentially a seizure of the person being arrested. The authority to arrest includes the authority to use objectively reasonable force to effectuate the arrest.
The constitutional test used to determine the reasonableness of the force used to prevent an escape or re-capture a fleeing suspect requires a Fourth Amendment analysis. Hence, the intellectual calculations of the arresting officer must be articulated as a matter of "probable cause" to support both the arrest and the force used. If this fundamental task is not accomplished in the arrest report, the arresting officer and the agency will experience an increased exposure to liability.
The lack of a thorough and complete police report, one that includes the officer's observations, perceptions and reasoning, is quite often the primary reason that "good police work" results in successful litigation against the officer and the agency. The point to be made here is that "good police work" can be obliterated in court if the arrest report fails to fully document the incident and satisfactorily explain the officer's reasoning, judgment, conclusions, decision making and the action taken. More simply stated the court and/or the jury wants to know WHY the officer took a particular action.