Any use-of-force incident should be thoroughly documented with detail provided as to the suspect’s actions and the tactics used. PHOTO AP/THE ALTOONA MIRROR, J.D. CAVRICH
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"If it ain’t written down, it didn’t happen.” How many times have we heard that in our training classes? Hundreds? Maybe thousands? Just like the mantra real estate agents use (“location, location, location”), we police trainers have our own chant: “documentation, documentation, documentation.”
Although the mainstream media doesn’t often report it, police officers do use force appropriately. And we really don’t use it that often. The latest figures from the International Association of Chiefs of Police (IACP), the agency that commissioned the National Police Use-of-Force Database project and published the study “Police Use of Force in America,” indicate that cops use force about 0.03 percent of the time. Put another way, we don’t use force in over 99.9 percent of our official day-to-day contacts—a fact you’ll never hear from the mainstream media, either.
Here’s the harsh reality of the street: It isn’t enough that you were right in your force applications on the street; you have to explain why you were right. So, the theme of this month’s Tactics column focuses on survival writing and the steps you must take to write a successful report of the incident.
Subject Management Reports
There are many types of reports, such as offense or incident reports, motor vehicle accident reports or arrest reports, but I’m going to focus on those reports that seem to get us in the most trouble: the use-of-force reports, or what I prefer to call “subject management reports.” I use the term subject management reports because in my experience the term use-of-force reports unfairly suggests some officers use excessive force by the sheer number of reports they have written. Also, the report is probably required because the subject did something (or failed to do something) that caused you to have to use some level of force to control them and take them into custody. The following paragraphs will explain the concept a little more clearly.
How you prepare your subject management report most likely will dictate what happens to you administratively, civilly or criminally from your use-of-force incident. In my capacity as a litigation consultant in police force matters, the two biggest mistakes I see officers making after a significant use of force both deal with their subject management reports.
The first mistake is they sit down to write these important documents too soon after the incident—when they’re still up in that emotional cloud, and the adrenaline is still pumping through their veins. They’d be better served waiting two or three hours before they try and remember everything that happened during the life-threatening event. And so would their departments. In fact, some progressive agencies allow two or three days to pass before they require the involved officer to prepare an official report of the incident (often life-threatening incidents, such as officer involved shootings), when they’ve had time to think about all that took place.
The second mistake officers make is they don’t know how to prepare their force report so that a civilian juror or review board member (most of whom get their law enforcement expertise from watching Law and Order or NYPD-Blue re-runs) can understand why they had to do what they did. So along those lines, here are some tips for survival writing, courtesy of my 20-plus years on the street and almost 20 years as a litigation consultant testifying in court on use-of-force issues.
Five Tips for Survival Writing
Keep in mind that your force application was really a reactive process. It was the subject’s resistance (by words or actions) that dictated your force response. This can be explained by remembering the three most important words of survival writing: He forced me. It was the suspect’s action that prompted your reaction.
Show a progression of the event. Don’t go right to the bottom line. Tell the story so anyone reading can understand what led up to your use of force.
Here’s an example courtesy of one of my old partners. “When I put my hands on the suspect’s arm to escort him from the bar, he tensed up his muscles. Upon feeling this resistive tension in his right arm, I ordered the subject to stop resisting. He turned and began to swing his right elbow toward my head. I stepped back, drew my pepper spray from my duty belt with my left hand, pointed it at him and again ordered him to stop resisting. He turned fully around to face me, again refused and told me to ‘#@%*off’ and said ‘I ain’t going anywhere.’ I told the suspect he was under arrest for disorderly conduct and directed one burst of OC at his face. He put his hands up to his eyes momentarily, then brought them down, tightened them into fists and started to walk toward me. He had an angry and determined look on his face. I could see he was hyped up and agitated. He told me he was going ‘rip my $%@*ing head off.’ I then drew my baton with my right hand and administered one strike to his left rear thigh area. The suspect then went down to one knee momentarily. He then got up, said ‘you’re dead’ and started to advance quickly toward me again. I administered a second strike to his left calf which slowed him down; however, he took another step in my direction. I then took one step back and administered another baton strike to his left thigh area. The suspect went down to the ground. I kneeled down, secured my baton behind my right knee, took out my handcuffs and affixed them to his wrists behind his back.” This progression of events and use-of-force is easily understood by anyone either hearing it or reading it.
Forget your ego for a minute. You have to document your state of mind. It’s not enough to just say “I feared for my life so I shot the suspect.” You have to paint a realistic word picture and portray that sense of fear in very clear terms.
Here’s another example: “I was all alone. There were six other biker-types in the bar along with the suspect. Based on his large size, the glazed look in his eyes, the smell of an alcoholic beverage on his breath, the numerous outlaw biker gang tattoos visible on both his arms, the large-bladed knife that he removed from his belt and held in his right hand, in addition to what he said, ‘I’m going to cut your $%@*ing head off and #%*& in your neck,’ I believed the suspect intended to kill me or cause me serious bodily harm if he was not stopped immediately.”
Vivid? Yes. Graphic? Sure. But any reasonable juror would get a very clear picture of what you experienced after hearing this. Finally, if you voided your bladder, say so. It might be embarrassing, but your expert witness (if he understands the basic human physiology of extreme emotional stress) will testify how this is a natural and normal phenomenon when officers are placed into life-threatening situations and the history behind it.
Describe the suspect’s actions completely. In addition to the preceding paragraph, include descriptions of the other physical attributes and characteristics of the suspect. Include their age; size, including height, weight and build; occupation; evidence of drug use or intoxication; verbal threats; and level of resistive tension. How hyped up was the subject? Were they sweating profusely? Also, include the number of accomplices and or sympathizers and any prior knowledge that you had about the suspect, i.e., previous arrest history, prior arrests for assaulting or resisting officers, in your account of the incident.
This probably goes without saying: Always tell the truth. One talking head attorney on TV has even coined a name for police officers’ courtroom testimony; he calls it “testi-lying.” Don’t lend credibility to those beliefs. If you get caught on even one little thing, even an innocent mistake or inconsistency, it’ll cast doubt on everything else you say. Remember LAPD Detective Mark Fuhrman and the audio tapes he made 10 years earlier? Enough said.
Subject Management Reports
Earlier, I mentioned the concept of changing the name for use-of-force reports to subject management reports. While that may seem like a minor thing, my experience indicates that it’s not.
There are a couple of experts/litigation consultants who I’ve met on the opposing side of a few cases that have taken the position that the number of use-of-force reports filed by an officer, in and of itself, is evidence that the officer has a propensity for using excessive force. Of course, their magic numbers (pick a number, any number, five, 10, 15?) changes based on the specific case, but fortunately, I’ve been able to counter these opinions by my own testimony that this premise is flawed right from the start.
Here’s an example: The defendant officer has five years on the job. He’s compared to another officer about the same age, who works in the same department, who also has five years on the job. But a closer look reveals that’s about all they have in common. More important factors might be what shift each officer works. Officer A (the defendant officer) works in the anti-crime unit where the cops look for suspicious activity in high-crime, gang-infested areas. Officer B patrols the ‘burbs. Officer A has spent his whole five years with anti-crime. Officer B was just transferred from research and planning to patrol six months ago. Officer A works nights. Officer B works days. Officer A has filed six subject management reports so far this year. Officer B has only filed one. Does that make Officer A an overly aggressive cop? No. Not when you compare their work histories, patrol beats and assignments. Numbers can lie.
The bottom line: Don’t fear subject management reports. When used properly by both the training unit and the crime analysis unit, they can paint a pretty good picture about what’s working on the street and what isn’t, where additional training might be needed and where the most resistive badguys are hanging out. They can be a great training tool, too. They can also give a judge, jury or hearing officer, a clearer understanding of exactly who and what you were up against when you used that force, more so than just the arrest report or incident/offense report.
For those agencies that presently don’t have a specific use-of-force or subject management report, and are interested in designing or developing one, and you want help, give me a call. I’ll be more than happy to send you one I helped develop for a large municipal agency out west. My e-mail address appears at the end of this column in the biography section. To obtain a copy of the IACP’s National Police Use of Force Database publication “Police Use of Force in America,” the URL is www.theiacp.org. Most police chiefs are members of the IACP and probably have a copy in their library.
Until next month. Stay safe.