The pendulum is swinging fast and it will take down anyone standing in its way. Uses of force policies for law enforcement throughout the nation are undergoing an unprecedented transformation. Many departments have created policies which are drastically more restrictive than what the United States Supreme Court has held to be reasonable.
The Police Executive Research Forum “PERF” is a nonprofit organization that focuses on police research and policy organization. On January 29, 2016, PERF issued 30 so called Guiding Principles for improving use-of-force training and policies within law enforcement. PERF states that their paper was based on years of work that involved hundreds of police officials, several national conferences, as well as field work conducted in the New York Police Department, Scotland, and Northern Ireland. PERF further claims that their entire approach is actually designed to increase officers’ safety.
Based upon my examination and review of PERF’s 30 guiding principles, I find their claims hard to digest to say the least. Within the first few pages I discovered plenty of material that gave me cause for concern. Consider, PERF’s second policy principle is titled, “Departments should adopt policies that hold themselves to a higher standard than the legal requirements of Graham v. Connor.” It states that an agency’s use-of-force policy should go beyond the legal standard of “objective reasonableness” outlined in the U.S. Supreme Court decision Graham v. Connor. PERF claims this landmark decision should be seen as “necessary but not sufficient.” PERF goes on to state that many departments have already adopted rules that are more restrictive of legal precedents such as policies that prohibit officers from shooting at or from moving vehicles.
Graham v. Connor, decided by the United States Supreme Court in 1989, is currently the seminal case regarding an officer’s use of force. Graham is a precedential and important case that aids officers precisely because it requires the judge or jury to adopt the role of a reasonable police officer when determining whether an officer’s use of force was lawful. Graham states that, “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.”
Chicago Police Officers reading this may realize that their department has crafted its use of force policy to be more restrictive than what the law allows. As a result, you may be thinking what is so bad about PERF’s principle here. For starters, setting a use of force policy in such a manner requires officers to assume risks that are not required under existing law. Simply put, officers should not be required to act in a manner contrary to what the law allows. The Supreme Court felt that a reasonable use of force must not be judged with hindsight, yet a department policy more restrictive than Graham makes the mistake of prejudging a future use of force encounter regardless of what the law permits. Officers should therefore be aware and concerned about the implications of a lawful use of force that could be found to violate department policy.
In Chicago, the Independent Police Review Authority (IPRA) is enabled under ordinance to investigate all cases in which a department member discharges his firearm, even if no allegation of misconduct is made. Furthermore, IPRA is to make recommendations to the Superintendent concerning the appropriate disciplinary action for department members found to be in violation of departmental rules and regulations. Thus, an officer can use force that is within the law, but the officer can still be held accountable administratively for violating departmental policy. Considering today’s current climate regarding use of force by the police, all officers should be aware of the possibility of surviving a lawful use of force encounter only to end up facing discipline or perhaps even termination because of public opinion.
It is not cynical or pessimistic for an officer to believe that public opinion has a tremendous impact on how a use of force encounter is adjudicated across all levels of review. PERF’s third principle titled, “Police use of force must meet the test of proportionality” confirms that public opinion is considered a key factor in their analysis. PERF believes that when officers are responding to a dynamic and highly stressful use of force encounter that they should consciously take time to reflect on how the public will feel about their use of force. Sadly, I am not misstating their position in any manner. PERF directly states, “In assessing whether a response is proportional, officers must ask themselves, “How would the general public view the action we took? Would they think it was appropriate to the entire situation and to the severity of the threat posed to me or to the public?”
What this principle means plain and simple is that officers should question how their action will be judged, not by a court of law, but rather by the ever changing whims of the court of public opinion. Officers already knew that the general public has no idea of the nature of their daily work, although the public always seems to have an opinion everything an officer does. What officers may not have known was how the law enforcement professionals in PERF hope to set policy that will undermine the very law enforcement community they purport to keep safe.