Officers should provide clear instructions and warnings whenever feasible before using force. Agencies should promote this goal through written policies, training, supervision, and reporting and review of use-of-force incidents.
Comment:
a. Instructions and warnings. Whenever possible, officers should provide clear instructions to individuals, should make clear if a call for conduct is a request or a command, and should indicate the consequences of refusing to comply with a mandatory order. A verbal warning about force should incorporate these elements in a statement that indicates that force will be used unless a subject complies with a specific command.
Verbal warnings may be inadequate for communicating with individuals who do not speak English or are unable to hear or to understand the warnings. If an officer suspects that a verbal warning would not be understood, the officer should seek to communicate in nonverbal ways, to the degree circumstances allow. However, gun shots should not be used to communicate a nonverbal warning.
Although federal constitutional law does not always require the use of a warning, it does recognize that warnings are relevant to whether force is reasonable under the law. Specifically, the U.S. Supreme Court held in Tennessee v. Garner, 471 U.S. 1 (1985), that warnings should be given “where feasible” before using deadly force against a fleeing suspect, and lower federal courts have examined whether warnings were provided, both as to deadly and non-deadly force. While it is common for agencies to recommend that officers provide warnings when feasible before using deadly force, echoing Garner, some agencies neglect to provide clear requirements in policy or training on the subject, and still more neglect to provide requirements that such warnings be used for non-deadly types of force. Warnings are often feasible and advisable when intermediate or lesser types of force are used, and sound policy should require (and training should emphasize) that warnings be used when possible to avert the need to use force.
In addition to warnings, when feasible, officers should give individuals who may be subjected to force clear instructions about what conduct the officer considers essential to avoid force, and should do so in a way that conveys the mandatory nature of the order and the consequences of refusing to comply.
Reporters’ Notes
The U.S. Supreme Court held in Tennessee v. Garner that warnings should be given “where feasible” before using deadly force against a fleeing suspect. See Tennessee v. Garner, 471 U.S. 1, 12 (1985); Bryan v. MacPherson, 630 F.3d 805, 831, 833 (9th Cir. 2010) (finding failure to warn the plaintiff before tasing her “militate[s] against finding [the defendant’s] use of force reasonable”); Casey v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir. 2007) (finding “[t]he absence of any warning” before the officer deployed her taser “makes the circumstances of this case especially troubling”); see also Jones v. Wild, 244 F. App’x 532, 533 (4th Cir. 2007) (noting that officer “gave a verbal warning prior to releasing” police dog); Estate of Martinez v. City of Fed. Way, 105 F. App’x 897, 899 (9th Cir. 2004) (finding no liability, explaining that “[v]erbal warnings are not feasible when lives are in immediate danger and every second matters”); see also International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 4 (“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.”).
Clear officer instructions and warnings help to reduce the need for use of force by preventing miscommunication that can lead to escalation. See, e.g., Dept. of Justice, Commentary Regarding the Use of Deadly Force in Non-Custodial Situations (Oct. 17, 1995), https://www.justice.gov/ag/attorney-general-october-17-1995-memorandum-resolution-14-attachment-1; Minn. Dept. of Public Safety, Use of Force and Deadly Force Model Policy (Oct. 2011),https://dps.mn.gov/entity/post/model-policies-learning-objectives/Documents/Use-of-Force-Deadly-Force-Model-Policy.doc; Emily N. Schwarzkopf et al., Command Types Used in Police Encounters, 8 L. Enforcement Executive F. 99 (2008). Instructions and warnings play an important role in preventing escalation and ensuring compliance. A person who is clearly told that force will be used if they do not comply, and given a clear path to avoid force, is more likely to comply. See, e.g., Dept. of Justice, Commentary, supra (“Implicit in this requirement is the concept that officers will give the subject an opportunity to submit to such command unless danger is increased thereby.”).
Most state statutes and case law do not expressly require warning prior to the use of force. Some state statutes demand that the officer make his intent to arrest and the reason for the arrest known to the arrestee when he or she makes an arrest. See, e.g., 11 Del. C. § 467(b)(1). Despite this lack of support at the state-law level, law-enforcement agencies typically require that a warning be given where feasible, tracking the language used in Garner and in the lower federal courts. Agency policies reflect this need to provide warnings and this Section reflects consensus among agencies. See, e.g., Chicago Police Dept. General Order G03-02-01, The Use of Force Model (2012), http://directives.chicagopolice.org/directives/data/a7a57be2-128ff3f0-ae912-8fff-cec11383d806e05f.html; Fort Worth Police Dept., General Order Revision (June 30, 2008); New Orleans Police Dept. Operations Manual, Chapter 1.3 (Dec. 6, 2015), http://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-3-Use-of-Force.pdf/ (“Officers shall use verbal advisements, warnings, and persuasion, when possible, before resorting to force”); New York City Police Dept., Deadly Physical Force, Procedure No: 203-12, (8/01/2013), http://www.nyc.gov/html/ccrb/downloads/pdf/pg203-12-deadly-physical-force.pdf; U.S. Customs and Border Protection, Use of Force Policy, Guidelines and Procedures Handbook 3 (2014), https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf (requiring warnings “if feasible” before use of force); see also 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 (describing how most large agencies encourage or require the use of verbal warnings before using deadly force, but somewhat fewer do so regarding non-deadly types of force). Similarly, many agencies prohibit the use of warning shots. See, e.g., Commission on Accreditation for Law Enforcement Agencies, CALEA Standards for Law Enforcement Agencies 1.3.3 (“Generally, warning shots should be prohibited due to the potential for harm. If permitted, the circumstances under which they are utilized should be narrowly defined.”); see also International Association of Chiefs of Police, National Consensus Policy on Use of Force, at 4 (stating that “[w]arning shots are inherently dangerous” and recommending limitations on their use).