Throughout the many years of force reviews conducted by the Los Angeles, California, Police Department’s Deputy Chief Kris Pitcher has found an ongoing issue that is pronounced in thousands of non-lethal, less lethal, and lethal force investigations at the time of adjudication. The identified issue relates directly to an overall ineffectiveness of police officers’ documented narrative of their actions in police reports involving the use of force (UOF).
More specifically, officers’ narratives accounting of their actions to legally justify their use of force under the Fourth Amendment to the U.S. Constitution and applicable state laws and department policies has often lacked specifics to justify the application of force. Insufficient, circumscribed articulation adversely impacts the resulting criminal, administrative, and civil cases. Moreover, when reviewed at the supervisory level during incident-associated report approval and the subsequent completed UOF investigation, the deficient articulation is regularly unaddressed. This lack compounds problems at successive levels of review and later in the courts.
This particular UOF issue has been commented upon, time and time again, by law enforcement trainers and officials, prosecuting and civil litigation attorneys, presiding judges, and even included in law enforcement technical letters of assistance completed by the U.S. Department of Justice. The problem has widespread implications to not only the impacted agency, but also other law enforcement organizations across the United States. To address the issue, the Los Angeles Police Department has developed a guide for officers when completing their force statements to better communicate the facts as they occurred. This guide is also useful to field supervisors and managers as a tool to identify what should be included in the related reports.
The Recommended UOF Articulation Guide includes 14 specific force-related concepts to be articulated by officers, when applicable, in their reports or other required narratives that justify why and how they applied force. Each of the 14 areas include a detailed description of the specific facts and circumstances that should be described and how they relate to the narrative.
As with any police activity that implicates the Fourth Amendment, such as a detention, arrest, or application for a search warrant, officers should accurately describe the relevant facts and circumstances leading up to and including the use of force. The officer’s description should not simply use broad categories to describe the circumstances. For example, officers should avoid overbroad and non-descriptive statements such as “the subject physically resisted,” “the subject was aggressive/combative,” or “the subject failed to comply.” Rather than using these categorical shortcuts, officers should “paint a picture” and describe what they saw, heard, did, and knew either before they arrived at scene or concluded based on their training, experience, and expertise.
Descriptions of the objective facts and circumstances are key to analyzing whether a use of force is reasonable under the law or policy.
1. Training and Experience — The officer’s relevant training, experience, and expertise that influenced the officer’s interpretation of the objective facts and circumstances.
2. Officers Knowledge Before Arrival — The facts and circumstances the officer learned or knew prior to arriving at a scene (e.g., information from the dispatcher, comments of the call on a mobile data computer, familiarity with the location, prior contacts at the address).
3. Basis for the Contact — The factual reasons and lawful basis for the contact. For example, if the suspect was detained or arrested, the officers should describe the facts and circumstances establishing reasonable suspicion or probable cause of a crime or some other lawful basis to stop a person and investigate.
4. Seriousness of the Crime — The seriousness of the crime and the factual circumstances of the crime under investigation, the suspect’s connection to the crime, and the training and experience of the officer regarding that specific crime under similar circumstances.
5. Perceived Mental Condition of the Subject — The specific observations to suggest the suspect was suffering a mental health crisis or was under the influence of alcohol or narcotics and how that affected the officer’s understanding and approach to the incident.
6. Presence and Use of Weapon — The specific facts and circumstances about the presence and use of a weapon by the suspect. Particularly, the description of the weapon and the facts and circumstance regarding the suspect’s ability, opportunity, and intent to cause physical harm.
7. Aggressiveness and Resistance — The specific facts and circumstances indicating that the suspect was resisting arrest, aggressive, combative, or attempting escape (specific factual descriptions of what the suspect was doing, saying, reacting, etc.).
8. Tactical Planning — The tactical planning employed by the officer prior to or after arriving at the scene and the factual reasons for approaching the situation under those particular circumstances.
9. De-Escalation — Tactics, techniques, or efforts attempted by the officer to reduce the intensity of the encounter with the suspect and to enable the officer to have additional options to gain voluntary compliance or mitigate the need to use higher levels of force or why certain tactics were unavailable under the particular facts and circumstances of the incident.
10. Warnings — The specific warnings provided by the officer to the suspect before using less lethal force (Deorle warnings) or lethal force (Garner warnings) or the specific factual reasons why a warning was not given.
11. Directions and Commands — The specific directions or commands given by the officer and the verbal, physical, or other types of responses by the suspect.
12. Immediacy of Need to Use Force and Specific Force Options — The factual basis for the officer’s belief that force was reasonably necessary and the type and amount of force was reasonably necessary under the particular circumstances (based on what the officer saw, heard, knew, and believed based on his or her training and experience).
13. Applicable Training — The officer’s understanding of the applicable training and policies regarding the use of force or a tactic under the specific facts and circumstances.
14. Deviations from Standard Training — The facts and circumstances that formed the basis to believe that a deviation from standard training or agency policies was necessary.
Although not all 14 elements are relevant to every situation, the review and inclusion of all applicable force concepts will more than likely prompt the law enforcement professional to include all salient and critical information in their required UOF incident narratives. This information is typically of great significance in determining the overall administrative appropriateness (In Policy/Out of Policy) and legality of the force applications during the review and adjudication stage conducted by department boards and management; civilian oversight bodies; prosecuting city, district, and state’s attorneys; and civil litigation reviews. A well-written statement that is thorough, complete, and extremely descriptive, paints the clearest picture of how and why the officer, deputy, or patrol person applied the force he or she did and will undoubtedly make all of the individual’s statements more effective for adjudicators and prevent misconceptions, misinterpretations ,and questions from prosecutors, myriad reviewers, and administrative boards in the future. d
Please cite as
Kris Pitcher, “Use of Force Articulation: LAPD Recommendations,” Police Chief online, June 5, 2019.
