Agencies should require, through written policy, that officers actively seek to avoid using force whenever possible and appropriate by employing techniques such as de-escalation. Agencies should reinforce this Principle through written policies, training, supervision, and reporting and review of use-of-force incidents.
Comment:
a. De-escalation and force-avoidance tactics. This Section adopts the view that agencies should require officers to avoid using force and to de-escalate if they can do so without endangering themselves or others both before and during encounters. Although other Sections concerning the use of force are directed primarily to officers, the framing of this Section is intended to emphasize that achieving the objective of avoiding unnecessary force demands (in particular) institutional as well as individual efforts. In approaching situations in which force might become necessary, agencies can provide officers on the scene with additional information, they can send resources, and they can facilitate communications among officers. Such techniques can provide additional time for officers to assess a situation, reduce the threat an individual poses, and ensure that law enforcement can achieve its goals without the use of force. Examples of techniques that can be used to de-escalate or avoid the use of force include: tactical repositioning to increase distance or cover; containing the scene in order to reduce the threat to members of the public; and avoiding acts and instructions that are likely to lead individuals to present a risk of serious harm to a police officer.
Although officers should seek to minimize the use of force against all individuals, some subpopulations may require special efforts to limit the use of force. For example, officers may require special training to avoid using force against mentally ill individuals who do not immediately follow law-enforcement instructions. In light of recent research regarding implicit biases, indicating that African American men may be perceived as more threatening than their white peers, agencies may also need to consider special efforts to reduce the risk of disproportionate force against African American men. If force is used against some individuals under circumstances in which steps would be taken to avoid force against others, then adequate steps to minimize force have not been taken.
Policies, training, and supervision, including performance measures, positive incentives, and discipline, should reinforce use of force-avoidance and de-escalation techniques, and training should be provided to all law-enforcement officers on an ongoing and repeated basis.
Many agencies include such techniques in existing policies. Although law-enforcement groups are themselves divided on whether agencies should depart from the constitutional standard, which does not specifically mandate de-escalation and force-avoidance techniques, these Principles endorse the use of tactics to avoid the need to use force, in order to protect the lives of officers and citizens. In general, officers should be routinely equipped with less-lethal tools, and they should be trained to use a range of techniques to defuse situations and avoid the need to use force when it is possible to do so. Complying with this Section does not necessitate detailed written policies laying out every technique that can be used to minimize or avoid force. Rather, much of this Section can and will be implemented through training, supervision, and an agency’s broader commitment to reducing harm in policing.
Reporters’ Notes
The primary goal of this Section is to encourage agencies to adopt policies and practices that minimize the force used by officers. Agencies vary in their adoption of force-minimization techniques and in the specificity with which they detail these techniques in policy. In general, many agencies include de-escalation, minimization, and force-avoidance tactics in policy. See, e.g., Police Executive Research Forum, An Integrated Approach to De-Escalation and Minimizing Use of Force (2012), http://www.policeforum.org/assets/docs/Critical_Issues_Series/an%20integrated%20approach%20to%20de-escalation%20and%20minimizing%20use%20of%20force%202012.pdf; David Griffith, De-Escalation Training: Learning to Back Off, Police, March 2, 2016, http://www.policemag.com/channel/careers-training/articles/2016/03/de-escalation-training-learning-to-back-off.aspx; Brandon L. Garrett & Seth W. Stoughton, A Tactical Fourth Amendment, 102 Va. L. Rev. 211 (2017), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754759, at Part II.C (surveying large agencies and finding that most include de-escalation and force-avoidance tactics in policy). Some agencies have quite detailed policies on this subject, while other agencies quite concisely note that minimization should be used. See Seattle Police Manual, Use of Force Policy § 8.100.3 (2013); compare Newark Police Dept. General Order 63-2 (Mar. 4, 2013) (officers “are charged with the responsibility of using minimum force necessary to affect [sic] a lawful arrest.”). This Section recognizes that the specificity of the policy may be dictated by agency-specific conditions. Nevertheless, only by explicitly requiring that officers minimize the use of force can departments sufficiently prioritize the use of strategies obviating the need for force. This approach adopts language from the International Association of Chiefs of Police, National Consensus Policy on Use of Force, which states that “[a]n 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,” International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 3, at http://www.iacp.org/Portals/0/documents/pdfs/National_Consensus_Policy_On_Use_Of_Force.pdf, and conforms with the President’s Task Force on Twenty-First Century Policing, which states that “[b]asic recruit training must also include tactical and operations training on lethal and nonlethal use of force with an emphasis on de-escalation and tactical retreat skills.” See Final Report of the President’s Task Force on 21st Century Policing 57 (2015), http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf; see also Police Executive Research Forum, Use of Force: Taking Policing to a Higher Standard 5 (Jan. 29, 2016), https://www.themarshallproject.org/documents/2701999-30guidingprinciples (“The Critical Decision-Making Model provides a new way to approach critical incidents,” describing a decisionmaking framework for “critical incidents and other tactical situations”); International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 3 (stating that “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.”).
As Comment a suggests, efforts to minimize force are especially critical when interacting with groups against whom force has often been used disproportionately, such as African American men. Jon Swaine et al., The Counted: People Killed by Police in the US, The Guardian, http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database; Christine Eith & Matthew R. Durose, U.S. Dep’t of Justice, Contacts Between Police and The Public, 2008, at 12 (2011); Federal Bureau of Investigation, Uniform Crime Reporting Program Data: Supplementary Homicide Reports, 2012 (2012), at http://www.icpsr.umich.edu/icpsrweb/RCMD/studies/35023; Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force (Working Paper, 2016), http://scholar.harvard.edu/fryer/publications/empirical-analysis-racial-differences-police-use-force; Center for Policing Equity, The Science of Justice: Race, Arrests, and Police Use of Force (July 8, 2016), at http://policingequity.org/wp-content/uploads/2016/07/CPE_SoJ_Race-Arrests-UoF_2016-07-08-1130.pdf. Though addressing the disproportionate use of force is a complex task, training and policy to ensure de-escalation and force avoidance are essential to it.
Agencies should also collaborate as necessary before and during crisis situations in order to enable officers to avoid or minimize force. In many jurisdictions, collaboration now occurs between police and mental-health-service providers in order to improve response to persons with mental-health problems, using a model called the Crisis Intervention Team approach. Amy C. Watson and Anjali J. Fulambarker, The Crisis Intervention Team Model of Police Response to Mental Health Crises: A Primer for Mental Health Practitioners, 8 Best Pract. Ment. Health 71 (Dec. 2012), at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3769782/; Randolph Dupont, Maj. Sam Cochran, Sarah Pillsbury, Crisis Intervention Team: Core Elements (Sept. 2007), at http://cit.memphis.edu/pdf/CoreElements.pdf. This type of collaboration, and Crisis Intervention Training, has been endorsed by the President’s Task Force on Twenty-First Century Policing. See Final Report of the President’s Task Force on 21st Century Policing 43-44 (2015), http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
Resource constraints make it difficult for all law-enforcement agencies to offer high-quality training on many specialized techniques for minimizing force. Indeed, many believe that effective training must involve reality-based training, interactive role-play scenarios, and field training, which require far more resources than simply instructing officers on a written policy or procedure, or providing just “shoot/don’t shoot” training that does not address techniques that can minimize or avoid the need to use force. Mark R. McCoy, Teaching Style and the Application of Adult Learning Principles by Police Instructors, 29 Policing 77 (2006); see also Zuchel v. Denver, 997 F.2d 730, 739 (10th Cir. 1993) (noting expert testimony concluding that training films are viewed “quite often as video games,” and that field exercises and “role-play situations” are “much more effective”); International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 4 (describing need for “regular and periodic” training designed to “provide techniques for the use of and reinforce the importance of deescalation” and “simulate actual shooting situations and conditions” and to “enhance officers’ discretion and judgment in using less-lethal and deadly force.”). It will be crucial for jurisdictions to provide additional resources for agencies to participate in training efforts. Moreover, agencies should think broadly about the kinds of training that may lead to force minimization. Finally, as noted in Comment a, supervision can play a critical role in promoting force avoidance and minimization. Such supervision should include not only additional training and disciplinary consequences for officers who use unnecessary force or violate procedure, but also professional rewards and commendations for officers who resolve conflicts in ways that avoid the need to use force.