Investigating Use of Force Before and After Complaints: An Operational Template to Avoid Civil Liability Richard H. Martin, Auburn University Montgomery Jeffrey L. Gwynne, Auburn University Montgomery Charles A. Gruber, Chief (Ret. ), CAG Consultants Introduction Many police agencies lack policy, procedure, and diligence by police supervisors to investigate NON-excessive use of force incidents before a citizen files a formal complaint of a civil rights violation against the police. Police by their very nature are the guardians of the nation’s civil rights.
They are the glue that holds the fabric of our constitutional guarantees in place. Therefore, when the underpinnings of those civil rights are compromised by those entrusted with their care, it limits the effectiveness of the police-guardian role, obscures the trust relationship, and creates liability for the supervising organization. Every police administrator’s dream would be to recruit honest, loyal, and wellbalanced officers who will carry out their duties and responsibilities without incident.
Then they wake up and realize that police officers are people, with all the character flaws and psychological baggage that most people carry. Whether from reaction to stress, flawed judgment, or simply some misconstrued dealings with the public, officers have problems that cause conflicts, and it is up to the police administrator to assign blame, mete out discipline, and provide both reputational and legal safeguards to the community. Officer reliability issues and citizen complaints come in all shapes and sizes: complaints of excessive force, abuse of authority, harassment, unlawful behavior, ad infinitum.

And when problems happen, they are rarely clearly delineated and easily resolved. They come through the muddied, if not conflicting, reports of the various sources involved, and it is the police administrator’s job to investigate and attempt to factually determine what really happened. To make matters more difficult, there is no single formula for conducting such internal investigations; they necessarily vary based upon the dynamics of the issues and encompassing circumstances.
While some issues may be resolved quickly, others require judgment calls about what to investigate, who to include in the investigation, and ultimately who to believe. Internal investigations also have risks. A poorly orchestrated investigation may do more harm than good, raising questions about the accuracy of the results as well as casting doubt about the police organization’s commitment to treating the complainant and (or) the subject of the investigation fairly.
The need for strong investigative protocols is therefore a management imperative. If issues can be resolved internally in a timely and professional manner, minor Law Enforcement Executive Forum • 2009 • 9(3) 19 problems can be stopped from exacerbating into major problems. Even if a problem turns into a serious legal issue, a good investigation and appropriate response may be the officer’s best defense. Sometimes internal investigations are necessary to preempt or prepare for inquiries from outside regulatory agencies.
By an agency conducting its own investigation first, it may be able to root out problems before they are uncovered and summarily addressed by outside investigative sources. With the ever-increasing incidence of use of force complaints, the resultant disruption, the enormous financial and emotional costs, and the obligation of departments to provide reasonable enforcement efforts set the stage for a formidable confrontation between officers and the public that employs them.
Therefore, police leaders, in addition to taking reactive steps to protect and promote civil rights throughout their communities, should take proactive steps immediately after an incident involving any use of force. Despite the amount of force used at the time, proactive steps should always precede an anticipated or unanticipated formal complaint that may be made by a citizen/victim and the subsequent reactive steps of an investigation. Visionary leaders recognize that the motive for these steps emerges out of the obligation to abide by the U. S. Constitution.
But why not define steps for an investigation before the complaint is filed? An internal accountability mechanism that becomes routine with use of force incidents will, by virtue of its function, become a deterrent to false complaints and intentional excessive use of force incidents (International Association of Chiefs of Police [IACP], 2006). With this said, an investigative protocol should be put into effect requiring an immediate response to the scene of all use of force activity to gather facts and supplementary evidence to determine if the use of force in this instance was reasonable.
According to the Fourth Amendment, force must be reasonable. It is implied, therefore, that there is both (in a general sense) reasonable force and unreasonable force. The force continuum used in force training around the U. S. flows from the level of use of words, or just the presence of the officer, to the level of deadly force (Petrowski, 2002). Choosing the correct level must be reasonable. Herein lies the problem—determining what reasonable force is. The U. S. Supreme Court decision in Graham v.
Connor states that determining what is reasonable is an objective standard based on the “common sense evaluation of the officer” during the situation. The reasonableness is determined by the officer at the scene rather than using hindsight evaluation to determine whether his use of force was reasonable (Petrowski, 2002). Hence, the importance of investigating the situation immediately by the supervising sergeant is magnified by this rationale of the Court. All courts recognize from a legal standpoint that officers can select the level of force that is reasonable—not necessarily the minimum amount of force.
In Plakas v. Drinski, the court stated there is no precedent that officers must use all feasible choices before using deadly force. However, the Plakas/Drinski court decision did state that there are cases in which deadly force was used with precedent—that there is no constitutional requirement that other alternatives must be used first before deadly force. Further, Petrowski stated that the U. S. Supreme Court and all federal circuit courts recognize that the “least obtrusive alternative” is impossible to choose.
In view of the situation and the heat of the moment, this is a reasonable conclusion. Use of Force Defined The meaning of the term use of force can be unclear at times. It can best be understood within the context of the situation in which it is used. Walker and Katz (2008) state 20 Law Enforcement Executive Forum • 2009 • 9(3) the authority to use force distinguishes the police from other professionals. It is a necessary part of the broad system of social control. Egon Bittner argued that the capacity to use coercion is the defining feature of the police.
Force is a broad term and its use can be defined as deadly force, less than deadly force, and deprivation of liberty through arrest. Bittner also stated that the use of force by the police is limited by law and must be used only in the exercise of official police action (pp. 10-11). The U. S. Supreme Court in the Graham v. Connor decision stated that the reasonable use of force by police has two justifications: (1) for safety and (2) for preventing escape and maintaining custody (Petrowski, 2002). Criminal Misconduct Police misconduct, or corruption, includes several characteristics.
One characteristic, or category, is any activity of police corruption that compromises the officer’s ability to provide police service impartially and enforce laws of the community. It is illegal for police action to be deployed in a manner that may produce personal gain for the officer. Police use of excessive force falls into this category. Sometimes the action is not excessive and is only perceived in that manner, but perception of wrong actions by the police has a negative effect on the police/citizen relationships in the community.
In anticipation of possible later formal complaints of excessive force, it is imperative to investigate all uses of force, including nonexcessive as originally reported. If a later claim is made, facts gathered by the investigation of the supervisor when the incident happened are already known. After all, not all claims of police brutality are filed immediately. In order to quell future allegations of excessive force, get the facts while witnesses are available and witness recollections of the incident are fresh. Citizen Complaints
In a study by Scrivner (1994) on the psychologist’s role in controlling police behavior, her findings show the types of services provided agencies to identify officers with potential behavior risks. The best way to control behavior risks is eliminating officers with potential behavior problems during the selection process. Some problems, however, do not manifest themselves until after employment. Scrivner identified several profiles of violence-prone officers. These profiles included personality disorders (e. g. , acquired before the job); related experience from previous employment (e. g. justified traumatic situations), problems that developed during the early part of their careers (e. g. , impressionable and macho types), inappropriate patrol techniques (e. g. , heavy handed and/or have a chip on their shoulders), and officers who have personal problems (e. g. , divorce). Procedures should be in place to assist the officers with these profiles to prevent problematic behavior. In addition to selection screening, it is recommended that officers develop the proper tools through provision of inservice training on the use of force and receive proactive supervision to identify problematic performance.
The first person to hear a citizen’s complaint is generally the supervisor. According to Whisenand (2007), a complaint has three stages: (1) reception, (2) investigation, and (3) disposition. The first stage is the receipt of the complaint which provides a paper trail for officer performance evaluations. A uniform format should be used to record all complaints. The citizen should be assured that an investigation will be made and a copy of the written complaint should be given to the citizen (p. 268). Law Enforcement Executive Forum • 2009 • 9(3) 21
Why not investigate before a complaint and be ahead of the blame game? This will protect the integrity of the officer and the department and act as a deterrent to false and frivolous accusations of excessive force. The second stage is the investigation. As part of general inservice training for newly appointed supervisors, specialized training on investigating internal and external complaints should be given to all supervisors, including providing them a resource guide on written guidelines for the investigation.
Basic training curricula should provide familiarity with the procedures conducted by the supervisor after receipt of a complaint. In addition, every agency should establish a policy to adopt formal procedures to investigate complaints of misconduct. Furthermore, these investigations should reveal facts and at the same time maintain the dignity and confidentiality of everyone involved (Whisenand, 2007, p. 268). Results of the investigation should be provided to the complainant (p. 271). The third stage is disposition.
During this stage, the supervisor is an advisor to police management. After the investigation is complete, the supervisor can inform management that the complaint is not sustained, unfounded, or that the officer should be exonerated. He can also advise the extent of the discipline to be meted out if the complaint is valid (Whisenand, 2007, p. 272). Allegations of excessive force, or police brutality, represent the most common complaint of minorities against police. The beating of Rodney King video is frequently used for evidence of this claim (Walker & Katz, 2008, p. 404).
Research conducted by Kappeler, Carter, and Sapp (see Walker & Katz, 2005) found that college-educated officers have fewer complaints filed against them than less-educated officers (p. 164). The attitude and demeanor of the suspect can have an effect on police use of force. In a study conducted by Black (cited in Walker & Katz, 2008), it was found that blacks are more likely to be antagonistic toward the police. Pilvavin and Briar found that juveniles had the same response toward police. This, in turn, can trigger an overbearing response by the police (cited in Walker & Katz, 2008, p. 408).
However, Klinger argued that it was the arrest that triggered the antagonism (cited in Walker & Katz, 2008, p. 408). Physical force is authorized by law for police to use to protect themselves, to affect an arrest, to overcome resistance, and to bring a dangerous situation under control. Excessive force is never authorized. The law enforcement agency accrediting body, the Commission for Accreditation of Law Enforcement Agencies (CALEA) (2006), illustrates in Standard 1. 3. 1 that police officers “will use only the force necessary to accomplish lawful objectives” (p. 1-6). Standard 1. 3. 6. d) states that a written report is submitted whenever an employee “applies weaponless physical force at a level as defined by the agency” (pp. 1-7). Walker and Katz (2005) state “that excessive force is any level of force [that is] more than is necessary to handle a situation” (p. 208). Walker and Katz’s comments on force were basically the same in their 2008 text, except, however, they suggested better accountability and better data on the use of force is needed (p. 493). There should be unmistakable differences between excessive force and plain force; measurement of force needs to be better.
Management must identify situations where force may most likely be used, identify individuals susceptible to using more force than necessary, and develop mechanisms to control officers use of force more effectively (p. 493). 22 Law Enforcement Executive Forum • 2009 • 9(3) As stated in the Graham v. Connor decision (Petrowski, 2002), the level of force used is determined by the officer’s perception in a given situation. It may be determined later that the amount used was not necessary. It is a matter of opinion.
The opinion of the officer is going to be different from the opinion of the defendant or complainant. Most police departments adopt a use of force continuum, identifying appropriate action in particular situations. Force continuums generally range from officer presence to using deadly force with three to seven stages between the two characteristics (Walker & Katz, 2008, p. 406). A Bureau of Justice Statistics (BJS) study found that police use of force happens in less than 1% of all citizen encounters with the police. The study involved over 80,000 people (Walker & Katz, 2008, p. 05). In 2004, Walker and Alpert wrote about early intervention (El) systems being recognized by the U. S. Department of Justice for enhancing use of force accountability. Consent decrees contain a variety of early intervention systems (Hickman, Piquero, & Greene, 2004, p. 21). The CALEA (2006) Standard 35. 1. 9 requires agencies to “establish a Personnel Early Warning System to identify employees that may require intervention efforts” (p. 35-4). Identifying problem employees and offering remedies early helps the agency establish accountability and increase respect in the community.
Police Citizen Contacts and Complaints 1996-2001 In 1996, Langan, Greenfeld, Smith, Levin, and Durose (2001) found a low number of incidents of excessive force by police. A nationally representative sample of 6,421 persons representing a population of 216 million people found 1,308 persons had face to face contact with the police and that 14 of them stated that police used or threatened force against them. Ten of these persons reported that their actions provoked the police to use force. The 14 incidents represented an estimated 500,000 people.
Another estimated 800,000 had no force or threats used against them but were handcuffed only. Half of all contacts in police-public interactions in 1999 resulting in the use of force or threatened force were in traffic stops (Langan et al. , 2001). In the last six months of 1999, approximately 422,000 people 16 years old and older were estimated to have had contact with police when force or the threat of force was used. The analysis of the Langan et al. survey found that less than 1% of these contacts resulted in police force or threat of force and only an estimated 20% of these involved only the threat to use force.
In 0. 7% of the stops, the surveyors were told that force was used, and in 0. 5% the survey respondents alleged that excessive force was used. 2002 Citizen complaints resulting in disciplinary actions accounted for less than 10% in a recent 2002 BJS study that was analyzed by Hickman (2006). Overall, he found evidence that justified disciplinary action in about 8% of 26,000 complaints of excessive force by police. Hickman also found the percentage of merited complaints ranged from 6% among county police departments to 12% among sheriffs’ offices. Law Enforcement Executive Forum • 2009 • 9(3) 3 Highlights of the analysis from Hickman (2006) include the following: • During2002,largelocalandstatelawenforcementagencies,representing5%of agencies and 59% of officers, received a total of 26,556 citizen complaints about police use of force. • Aboutathirdofallforcecomplaintsin2002werenotsustained(34%). Twentyfive percent were unfounded, 23% resulted in officers being exonerated, and 8% were sustained. • Usingsustainedforcecomplaintsasanindicatorofexcessiveforceresultsinan estimate of about 2,000 incidents of police use of excessive force among large agencies in 2002.
Approximately 19% of large municipal police departments had a civilian complaint review board or agency within their jurisdictions. Additional information about BJS statistical reports and programs is available from the BJS website at www. ojp. usdoj. gov/bjs. 2005 A 2005 BJS survey illustrates data on the characteristics of contacts between police and the public from a nationally representative group of 60,000 U. S. residents age 16 or older who had face-to-face contacts with the police (BJS, 2006b).
The findings represent one full year and include reasons for and outcomes of the contacts, resident opinions on police behavior during the contact, and whether police used or threatened to use force during the contact. Highlights of the BJS (2006b) survey include the following: • Anestimated19%ofU. S. residentsage16orolderhadaface-to-facecontact with a police officer in 2005, a decrease from 21% of residents who had contact with police in 2002. • Overall,about90%ofpersonswhohadcontactwithpolicein2005believedthat police acted properly. • Ofthe43. 5millionpersonswhohadcontactwithpolicein2005,anestimated 1. % had force used or threatened against them during their most recent contact, a rate relatively unchanged from the 1. 5% in 2002. U. S. District Court Civil Rights Complaints 1990-2006 Below is a summary of the highlights of a BJS (2006a) publication, Civil Rights Complaints in U. S. District Courts, 1990-2006, which illustrates the number of civil rights violations filed in federal district courts. Highlights include the following: • CivilrightsfilingsdoubledinU. S. districtcourtsfrom1990(18,922filings)to 1997 (43,278 filings) and subsequently stabilized until 2003. From 2003 through 2006, the number of civil rights cases filed in U.
S. district courts declined by 20%. • Duringtheperiodfrom1990through2006,thepercentageofcivilrightscases concluded by trial declined from 8 to 3%. 24 Law Enforcement Executive Forum • 2009 • 9(3) • From 2000 to 2006, plaintiffs won just under a third of civil rights trials on average, and the median damage awards for plaintiffs who won in civil rights trials ranged from $114,000 to $154,500. Awareness over the recent years is becoming much greater, and as evidenced from the data, the potential litigation of use of force incidents that may end up in federal district court can be seen.
Once it goes to court, the odds are in favor of the plaintiff, whether it is Section 1984 civil rights lawsuits or Pattern and Practice DOJ lawsuits. Although the percentage is very low, be prepared because it can be costly. The decline of trial litigation in that period of time is assumed to be the result of out of court settlement agreements and early warning intervention of problem employees by police agencies. Due to ethical imperatives, law enforcement leaders must be continually attentive to ensure the actions of their officers do not compromise civil rights and erode public support.
With the authority of the position, officers are granted a tremendous amount of discretion to enforce the law and protect individual rights in the community. At the same time, officers must act within the laws of the Constitution while executing their authority and discretion. They are not above the law nor should they ever consider themselves above the law while executing their responsibilities. The main purpose of the police is to protect, rather than restrict, the rights of civilians, a distinguishing factor of our constitutionally based republic (IACP, 2006).
Police supervisors, in addition to taking reactive steps to protect and promote civil rights throughout their communities, should take proactive steps immediately after an incident involving any use of force. Despite the amount of force used at the time, proactive steps should always precede an anticipated or unanticipated formal complaint that may be made by a citizen/victim and the subsequent reactive steps of an investigation. Visionary leaders recognize that the motive for these steps emerges out of the obligation to abide by the U. S. Constitution (IACP, 2006).
But why not define steps for an investigation before the complaint is filed? An internal accountability mechanism that becomes routine with use of force incidents will, by virtue of its function, become a deterrent to false complaints and intentional excessive use of force incidents. Investigating Use of Force Incidents Implementing timely and well-thought-out investigative protocols act to minimize risk; and risk prevention related to the use of force is certainly one of the most misunderstood and underutilized aspects in the abatement of officerrelated complaints.
In our attempt to protect against aggressive behavior and the subsequent results of such behavioral anomalies, we spend a great deal of time and fiscal resources in precursory activities such as applicant screening and post-employment training assuming the formulary dealing with potential risk has been dutifully satisfied. And while candidate assessment and training are key preventative factors and should always be a part of the ongoing development process, they are not a panacea. Additionally, we fail to take into account that the original risk criteria is predominantly established against the backdrop of pre-employment uitability, Law Enforcement Executive Forum • 2009 • 9(3) 25 which is based on the current individual’s lifestyle and experience—something that can be validated in part by a subsequent background investigation. However, once ensconced in the organizational culture and subjected to the varying demands of the work—work which exposes individuals to an unfamiliar set of circumstances and stresses not encountered before or reckoned with—individuals morph psychologically by varying amounts, both positively and negatively as previously illustrated by Scrivner’s (1994) findings about the different officer at risk behavioral profiles.
A strong investigative self-audit, coupled with appropriate policies and procedures, helps to take the guesswork out of executing one of a police administrators’ toughest tasks and leads the investigation from the initial after-action report to final resolution—hopefully prior to any formal complaint or other form of negative-based encroachments. Such early intervention is an effective means of protecting both the officer and public. Information should therefore be gathered by supervisory personnel immediately after all use of force incidents, even those thought to be incidental.
The information gathered by such supervisory staff helps to establish early warnings as well as protect officers from false allegations. Just as technologically sophisticated early intervention systems will be severely compromised when data are not collected thoroughly, so will the analysis of data collected by managers who are not trained and motivated to take advantage of early intervention as a deterrent in the use of excessive force.
Although more and more departments are using early intervention systems, clear data standards and uniform practices have yet to be established for the routine investigation of all uses of force, especially the use of force not resulting in a citizen complaint (IACP, 2006). Proactive Investigations A framework leading to the curtailing of liability-ensconced issues should begin with the premise that every officer-related incident involving the use of force should be investigated, whether it has been the subject of a complaint or not, thus resolving potential problems before they are identified in a subsequent formal complaint.
Such procedural perspectives allow increased public confidence and trust in the police; allows for quicker resolution of future formal complaints; improves collection of investigative data; and helps to provide an evenhanded approach, identifying intentional misconduct or willful negligence while absolving the innocent of wrongdoing.
While it is recognized that police officers may have to use force in the course of their duties, such should only be used to the extent necessary in the prevention of a crime, to affect a lawful arrest, or as a defensive countermeasure, with the assumption being that under such particular and substantiated circumstances, officers had no alternative but to use force. Any force beyond these limits should be characterized as “excessive. ” Any investigation on the use of force should therefore focus on two prime elements: (1) the methods used and (2) the purpose for such use.
The primary focus in these investigations should be (1) to collect relevant evidence, (2) to be thorough and impartial, (3) to make findings supported by evidentiary constructs only, and 26 Law Enforcement Executive Forum • 2009 • 9(3) (4) to conduct and complete the investigation in a timely and professional manner. The investigation should diligently probe for and discover evidence necessary to resolve the underlying issues of the use of force, concisely presenting and preserving such evidence.
The investigative presumption in use of force occurrences should be initially viewed as no wrongful or improper conduct, rebutted only by substantial evidence that the use of force resulted from intentional misconduct or willful negligence. Substantial evidence means that investigative findings support a greater weight of evidence toward misconduct than any different conclusion. The information obtained therefore must be based on well-established investigative and legal principles.
Evidence which establishes merely the possibility of intentional or deliberate misconduct should not overcome the presumption of innocence. As stated earlier, the Plakas v. Drinski decision stated that officers must use all feasible choices before using deadly force, but legal precedent also states that the “least obtrusive alternative” is impossible to choose when it comes to following the force continuum (Petrowski, 2002). Added to this are the ethical considerations. Law enforcement executives and managers face a variety of ethical challenges n a frequent basis, running the gamut from politically motivated situations to problems incurred through employee orchestration. Regardless of how the situation develops, it is up to those in command to serve the public and the department in a responsible and ethical manner. The Internal Investigation Process The internal investigation process is different in many ways from a normal criminal investigation. Police executives should be wary of assigning officers to internal investigation tasks based solely on operational convenience.
Officers charged with investigating use of force activity should be the best qualified to serve in such a capacity, possessing a mastery of investigative techniques such as gathering evidence, interviewing witnesses, and analyzing facts. Such investigators should also exhibit a professional quality of impartiality and a working knowledge of what it takes to meet legal standards in today’s litigious atmosphere. There is also the problem of skepticism in terms of whether any law enforcement organization can conduct an impartial investigation regarding one of its own.
Police executives must recognize that the most important aspect of any internal investigation process is the most difficult to achieve—conducting the investigation in the same professional manner in which criminal investigations are conducted. The investigation of use of force incidents should be just as thorough and complete as the investigation of any crime. This is additionally important because of the potential liability factor, the seriousness of which dictates the need to be as objective and thorough as possible.
Therefore, the investigator chosen should be a trusted and well-thought-of member of both the department and community—one who recognizes the importance and priority of the investigation and appreciates the ramifications for the maintenance of confidentiality of the investigative process. As much as we can determine from government reports, there are more than 18,000 law enforcement agencies in the United States. Most police departments Law Enforcement Executive Forum • 2009 • 9(3) 27 are rather small compared to those in Chicago, New York, and Los Angeles.
They do not have a complex organizational structure. It is difficult for small agencies to have specialists for personnel complaint investigations. The person most likely to investigate is the supervisor. Uniformity should be the rule for agencies with limited organizational structure and numbers (More & Miller, 2007, p. 336). Sergeants are usually the most visible and often the most approachable members of the police department’s management team. They are first in the chain of command and understand that officers will have a bad day and sometimes take it out on the citizens they encounter.
The officer may “be rude, insulting, intimidating, or downright criminal in dealing with others” (More & Miller, 2007, p. 336). Since constitutional constraints require reasonableness in the use of force (Petrowski, 2002), the supervising sergeant is the best choice to determine reasonableness by interviewing at the scene for any kind of force used, including voluntary handcuffing. Verbal abuse as well as physical abuse can be determined while it is fresh in the minds of witnesses as well as the condition and the demeanor of the person arrested.
Supervisors have inherent power and authority and are departmental disciplinarians who generally investigate minor claims and mete out discipline if warranted. In more serious claims of corruption, an internal affairs procedure is implemented. In smaller departments, they may also assist command officers in the investigation of serious complaints. In both situations, an administrative review evaluates whether personnel policies are followed appropriately (More & Miller, 2007, p. 337). Personnel investigations of misconduct claims require highly trained investigators, regardless of rank.
Therefore, the selection and training of investigators are very important. Police managers in smaller agencies do have several options when faced with an internal affairs investigation situation. Small agency managers can assign a case to the supervisor or themselves. The chief is responsible for making sure the investigation is of the highest calibre and fair (More & Miller, 2007, p. 338). The initial stage of an investigation is to interview the complainant (More & Miller, 2007, p. 338). It is good practice to always anticipate a complaint after a custodial arrest, especially when force is used.
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