Unconstitutional Policing, Part 4: The Liability of Electronic Control Device Mis(Use)

The philosophical side of policing commands a greater appreciation for the gray force issues officers are confronted with on a daily basis. Unlike the guidelines for police use of deadly force that are comprehensively set in judicial case law and policies, guidelines for less-lethal force are more nebulous. There are specific standards and guidelines outlined for all law enforcement personnel to vigilantly follow and adhere to when confronted with life-or-death decision-making scenarios. When the U.S. Supreme Court uses terms such as “when feasible,” “commonsense,” and “reasonableness” as standards for pause in use-of-force scenarios, the justices are acknowledging that policing is a dangerous business, but one that still has authoritative, constitutional limitations. Unfortunately, most less-lethal force policies lack clarity and uniformity.

When less-lethal force is used in traffic stops and petty misdemeanors, questions often arise regarding the logic and rationale of the officer’s decision to use force. These cases often raise questions about police decision making and training adequacies. This is why all levels of force must strictly adhere to a comprehensive use-of-force policy supported by case law and professional standards, guided by good faith and prudent restraint. More times than not, employing the philosophical tactic of “ethical pause” to consider the bigger picture, public perceptions, and community trust will result in an overall positive resolution, both in judicial rulings and public image. However, more times than not, officers are trained to use a process of escalation, therefore the concept and application of de-escalation is not automatically a natural response to confrontation.