What is Excessive Force?

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By Tracy E. Barnhart

Published: 06/15/2009

I work in a most hostile environment within a maximum security juvenile prison in Ohio. My environment is one in which I deal with over 300 violent aggressive youth ages 16 to 21 that have been convicted of crimes that would rival that of any adult institution. Officers within our fence are required to utilize force to accomplish institutional security and maintain order at least five times a day. On a bad day, I have seen reportable incidents of over six incidents per shift. After these incidents I often look back in confidence of my law enforcement career knowing that every use of force was not only justified, required, and most of all, within reason.

“Because of cops like you, officers have a bad image everywhere.” I heard this comment by a police supervisor to an officer under investigation for abuse in a movie I just saw. The officer was then sent to anger management classes in an attempt to temper the officer’s aggression while on the job. After the first class he was walking out to his truck where it was being broken into by multiple violent individuals. The officer then utilized the necessary amount of force to affect the arrest but during the fight the rage class walks out. They observed the officer fighting the car thieves and immediately made the assumption that the officer started the incident and was out of control. Say to yourself; “Do I get to use force, or do I have to use force?”

You see incidents today where the media will propagandize the situation where officers apparently utilize excessive force and place their own hidden agenda’s within the print lines. We will rarely see the entire situation as it unfolded and for the most part citizens and witnesses to the altercation do not know what they are actually observing, and above all, they do not know the use of force continuum. The bottom line is that the public for the most part does not understand what law enforcement and corrections do or endure, nor do they want to. They want to feel that they are safe & secure in their homes and have a reasonable expectation of privacy.

The line gets crossed when officers begin to feel slighted by the public and inmates who they are charged with keeping. I was a police officer for ten years and toward the end of my police career I often felt as if the public that I policed were not worthy. They failed to heed my requests to lock their doors, failed to not drive drunk and failed to not beat their spouses and children. You often begin to get a feeling that the people that you are policing do not care what happens, so why should you. Now as a correctional officer I get different feelings than I did as a police officer. I immediately know that the inmates do not want me there and despise me for enforcing the rules and laws. But, I now get an impulse where I often want to teach them a lesson or make them experience the pain and discomfort of rebellion and nonconformity.

It is at this point where good officers may go bad. I have to tell myself every day that it is not my position to punish them but it is my responsibility to only report violations of the rules and the laws. You have to expect that criminals will resist your arrest; inmates will challenge your authority and assault you in some way. Expect this response, for it just may happen. Do not take it personally because it may not be. Think of the interaction as a game, they are on a team where they will be attempting to circumvent your commands and resist your authority in every way. It is your job during the game to remain professional and apply just enough pressure to accomplish the task without personal vendettas, abuse or attitude toward the individual.

I want you to be successful and therefore I want to try and explain the rules of engagement while you are on the job. Realize they are often blurred and not clearly defined and change often related to the political climate of your area. Ultimately You are the actor and producer of your own life script. You decide if it will be a flop or a hit. You are the architect and custodian of your own decision combinations for career success.

You must know a few court decisions that currently impact your ability and place you under the microscope as it relates to force. The first is Graham v. Connor in which that court recognized that the duty to make an arrest, and to conduct searches and investigatory stops, carries with it the authority to Reasonably use or threaten to use force. The second is Hudson v. McMillian which that court set the standard for what is Excessive. In this court decision it was found that in an excessive force complaint it must prove that the officer use of force was used Maliciously, Sadistically, and for the purpose of Causing Harm. Force is defined as the exertion of power to compel or restrain the behavior of another. Physical force implies the touching or prodding of a resistor to comply with the state agents demands. Non physical force implies the use of threats or other verbalization techniques to gain voluntary compliance.

“The purpose of fighting is to win. There is no possible victory in defense. The sword is
more important than the shield and skill is more important than either.
The final weapon is the brain. All else is supplemental.”

John Steinbeck

Our decisional aspects of using force will be judged in three areas; 1) were our actions Legal based on current law and for a lawful purpose? 2) Were our actions Ethical in accordance with the principals of right & wrong? Determining right and wrong must be judged singularly on their unique set of circumstances. 3) Were our actions Moral and were you concerned with the principals of the human factor as it relates to your conscious? More direct relevant facts to our use of force are; effects on event sensory distortion, non-verbal threat perception made by a criminal, close combat skills, individual abilities, officers mental preparation, equipment considerations, personality of the officer, mood of the officer, and the officer’s current mindset.

What influences our decisions to use force in a particular incident include; your age, sex, your experience, fitness, skill level, ego, political climate, previous adverse or hostile contacts with the individual, time of day, FEAR. Why are many officers so reluctant to establish fear involved? Fear is the natural, automatic response to one’s perception that he/she is in a dangerous situation. The key here is the officer’s perception based on the degree of “preparedness” training. An inexperienced officer may experience fear when in fact no threat of danger exists. Even a seasoned officer may become fearful if his/her emotional or mental faculties are in any way diminished, impaired or distracted.

Reasonable fear is common to all officers. It can be triggered by legitimately dangerous situations: conducting a building search at night for an armed suspect, confronted by a mentally ill person predisposed toward violence or facing an armed attacker. Therefore, reasonable fear is a survival technique. It can be thought of as your mind sending warning signals to the rest of your body. You can expect an adrenalin dump when the individual you are engaged with tells you in not so many words that he is not going to do what you say. In essence, “Make Me!”

However, here is a distinct difference between controlled, legitimate and manageable fear, and uncontrolled panic. Uncontrolled and inappropriate fear is not only unreasonable, but dangerous to the officer and everyone in his immediate environment. It is this sort of fear for which officers make take inappropriate action or use excessive force. For situations like these, the legal ramification can be enormous for law enforcement, correctional agency and the community. It is essential that officers and their supervisors develop techniques to distinguish between these two types of fear, to determine how fear affects a trained officer’s responses and to evaluate what preventive steps should be taken.

What is Fear: Fear is a system overload stimulated by your perception of the perceived danger or threat. Fear is an emotional response to a perceived threat and officers may incorrectly perceive fear and have a constant apprehensive approach to the day. The human body copes with stress with the aid of two main hormones, DHEA and Cortisol. An imbalance of these forces put your body in a great disadvantage for handling stressful situations.

“Fear is the instinct of self preservation to danger. All animals feel fear. Of all
the emotions that we possess, fear is the most important to our survival.”

Lord Morgan, Anatomy of Courage

“Fear is a neural circuit that has been designed to keep an organism
alive in dangerous situations.”

Dr. Joseph LeDoux

Perception of a threat, Awareness or perception of threat vulnerability, Evaluation of the threat itself, Decisions to take action, the action itself and then Survival mode. Unreasonable fear is a fear generated in the officer’s mind that has no direct correlation to the facts or situation at hand. There are seven (7) general causes of unreasonable fear such as:

Fear of doing physical harm: can be caused by other types of disorders or anxiety when the threat may or may not be there. Fear caused by cultural background, family influence, and religious influence. Although a reality, many people involved in combative training have not “really” internalized or thought about having to take a life or seriously injure another person.

If the level of force is justified, the officer may use anything capable to deliver the necessary force.
Potential injury to the aggressor should not deter the necessary lawful use of force.
The individual aggressor always dictates the amount of force to be utilized; therefore the individual is responsible for any injury that may occur while resisting.
It is incumbent on the officer to overcome the individual’s resistance quickly, to minimize the potential for injury, or degree of injury, to themselves or the offender.

Psychological fear: Caused by being impacted to the point of system overload because of noise, situation, numbers of people. If one does not come to grips with this issue and mentally prepare for altercations one will fail to act, or act incorrectly, in such a situation. Build a phrase or affirmation to use when you start to feel fear. This acknowledges the onset of your fear, and your action to manage it. This might be as simple as “(name), BREATHE, You can do this” or “One step at a time.” There is more than one word for “fear.” One of them is “excitement.” Another is “challenge.” Some officers prefer “exhilaration.” Be aware that what others may report as “scary” may not seem so to you. Hold to your own judgment and don’t let dramatic reports throw you off until you have been able to see for yourself what your natural reaction will be. YOUR GOAL IS NOT TO BE WITHOUT FEAR, BUT TO MANAGE IT!

Positional Fear: Caused by the lack of preparation, training or not personally suited for the task. Some individuals freak out if they find themselves on the ground or in a headlock. Training will correct this type of fear. It can also occur when the brain receives contradictory information from its motion sensors—the eyes, the semicircular canals, and the muscle sensors (nerve endings in muscles and joints that provide information about body position).

Racial Fear: Caused by lack of contact, rumor, gravity to ones own ethnic group, politics and power, or lack of power. This however politically correct racial differences are a real fear. Even with the strides taken forward as it relates to racial equality there is still an invisible divide that moves us to congregate among those of same race. Our laws may be color blind, but our fantasies, fears and imagination most emphatically are not.

Cultural Fear: Caused by a lack of exposure, failure to understand, mannerisms, “Haves look down on the have not’s” resent and reject. “A cultural war is raging across our land-storming our values, assaulting our freedoms, killing our self-confidence in who we are and what we believe.” “Ask the Romans if powerful nations have ever fallen as a result of cultural division. There are ruins around the world that were once the smug centers of small-minded, arrogant elitism. It appears that, rather than evaporate in the flash of a split atom, we may succumb to a divided culture!” Charlton Heston

Peer Disapproval: A desire to be accepted leads to fear of being rejected; fear of rejection can create a system overload. You may feel as if you are being graded on your courage and dynamics of profession. We all want to admire a superstar and the one who is above the bar, but don’t let this desire lead you into something that is wrong and unsafe.

Fear of Physical Harm: This is the type of fear officers fail to often articulate. We cannot always control our environment in which we work but we can control our responses to that environment like controlling breathing, remaining calm and professional, using our instincts, and knowing our limitations. John Wayne is no longer among us and Dirty Harry would have been sued out of the agency. This works well to document the reason you did what you did was because you were afraid. It makes you seem human and not robotic.

Perception: The officer observes the scene and the elements of the situation. These create an impression on the officer’s senses. Facts, Circumstances, Legalities, Available Resources, Back up, Fear, History, Confrontation dynamics, Reaction, Time, Situational awareness, Mr. Murphy. From these impressions; the officer makes an… ↓

Evaluation: The officer integrates the impressions observed with his knowledge, experience, and training. At this point, the officer processes information as rapidly as he must, given the situation. The proper use of force is based on split second judgments in circumstances that are tense, uncertain, and rapidly evolving. Self-talk, personal reminders, mental notes enable us to monitor and help direct our behavior. Thinking about our safe behavior helps persuade us that we’re doing the right thing. At the appropriate time, the officer then makes a .. ↕

Decision: The officer selects from among alternative courses of action based on the evaluation process. This is the most crucial point in the incident because subsequent events will flow from the decision reached. The courses of action available again reflect the officer’s experience and training. Once the decision is taken, new information (perceptions) or re-evaluation may cause the officer to pause and reach a different decision. But at some point a final decision is reached and the officer moves to.. ↕

Action: Based on the above steps of the process, the officer acts in response to the level of threat he must counter. The action will be dictated by the decision, but may be halted or delayed by new circumstances. ↑

Psychological Intimidation: Includes non-verbal cues indicating the subject’s attitude, appearance and physical readiness. This is often referred to as the “body language” of the inmate, which influences an officer’s decisions on how to approach an inmate, or what level of force to use if the inmate starts to resist an order. Non-verbal intimidating actions may include, but are not limited to: clenching the fists; widening the foot stance; or wearing a blank expression, which may warn officers of an individual’s emotional state. These non-verbal actions often warn an officer of an inmate’s potential for violence when the inmate has offered no verbal threats. An inmate’s non-verbal intimidation should be used as information to mentally prepare officers for attack, not as justification for the use of force.

A certain amount of agency participation and cooperation is required to address the issue of unreasonable fear while individual action will also be necessary. Therefore an attempt is made to establish a “normal” mode of behavior. It is the responsibility of the department to create the environment which encourages honest, candid discussion among its members. It may be necessary for a department to provide professional counseling services to officers who may not be able to discuss their fears openly. The department should offer to support anyone who requires professional counseling without any stigma attached or reprisal. It is often the field training officer who will be in the position to first observe the new recruit in action. The field training officer can identify possible symptoms and suggest corrective actions, additional training or guidance before the problem becomes entrenched.

In a use of force situation your circumstances will be judged by the threat assessment to you and how you perceived the threat. The Intent: Did the threat have the ability of causing you or a third party physical harm? The explanation of intent is the expression through verbal threats or threats acted out physically with the intent of causing you harm. “I am going to beat your ass!!” The Means: Does the individual have the means or ability of causing you or a third party physical harm. Means can include the individual’s physical size, fighting skill level, as well as possession of a weapon. The Opportunity: Does the individual have the opportunity of causing you or a third party physical harm. Information based upon proximity and environment. Opportunity varies dependant on the type of means are being employed by the individual. It may be difficult to show opportunity if you had to open a locked door to restrain the individual.

Is the action worth the risk of injury to yourself, the resistor and does the individual have the opportunity to comply with your lawful commands? Is the current course of action accomplishing the desired results? However, force is unavoidable within our profession and we must understand that our abilities, personalities and reactions must not impede on moral, legal, and ethical principals involved. Force can be reasonably or excessive and that is defined as more force or violence than is reasonable necessary to effect a legal law enforcement function. The test of reasonableness requires careful attention to the facts and circumstances.

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Comments:

maryann7304 on 06/19/2009:
i am a 51yrs old widow.I HAVE A SON THAT ON MAY 13 2009 INMATE 260661 WAS GRANTED REINSTATEMENT DURING THE TIME OF HIS HEARING THE PAROLE BOARD WAS AWARE THAT HE HAD SOME DISPILNARY WRITE-UP'S AND WAS ON MAXIUM SECURITY AT ONLY TENNESSEE.THE NIGHTMARE BEGIN WHEN MY SON WAS ACCUSED OF A INCIDENT THAT LATER PROVE FALSE.BECAUSE MY SON WAS ON PAROLE HIS PAROLE WAS REVOKE AND HE WAS SENT TO TURNEY CENTER ON FEB.13TH 2007. AS INMATE 260661 AND HIS FAMILY WAITED FOR JUSTICE TO TAKE PLACE.FINAL HE PROVE BEYOND THE SHADOW OF DOUBT THAT HE WAS IN FACT INNOCENT. ON MAY 13TH 2009 MY SON WAS GRANTED REINSTATE. ON WAS SUPPOSE TO BEEN RELEASED BUT BECAUSE OF TURNEY CENTER CLAIM A HOLD ON HIM HE WAS HELD HOSTAGE FROM TURNEY CENTER.WHEN INQURED OF WHY HE WAS NOT RELEASED. I WAS TOLD THAT THE PAROLE BOARD WAS NOT AWARE THAT HE WAS ON MAX. NOW, I'VE NEVER BEEN INCAR.BUT I DO KNOW THAT IF I SAW A PERSON IN BLUE THAT PERSON WAS CLASSIFIED AS A MINIMAL RISK BUT IF A PERSON WAS IN WHITE THAT INMATE WAS ON MAXIMAL. NOW,I WAS TOLD THAT MY SON WAS NOT SUPPOSE TO HAVE HAD A PAROLE HEARING AND THAT THEIR WAS A RECITION HEARING FILED. I ASKED HOW CAN THEY HAVE A RECESSION HEARING WHEN MY SON CAME BEFORE THEM DRESS IN WHITE AND AS I SIT THERE IN THE HEARING HEARD THEM MENTION EVERYTHING THAT WAS DONE CONCERNING HIS WRITE-UP'S. TURNEY CENTER HAD ALREADY DISCIPLINE HIM BY ADDING A YEAR TO HIS PAROLE AND PUT ON MAXIMUM SECURITY. WHEN TURNEY CENTER PROTESTED HIS RELEASE TELLING MY SON P.O. THAT HE STILL OWE HIM SOME TIME FOR HIS WRITE-UP'S. I PERSONALLY WENT DOWN TOWN TO THE COMMISSNIONER OFFICE AND WAS TOLD THAT THEIR DEPARTMENT IS DIFFERENT FROM THE DEPARTMENT OF COMMISSION AND THAT THEY HAVE NO CONTROL OVER WHAT HAPPENS TO MY SON THEY ONLY HANDLE THE PAPER WORK ONCE THE IPO SEND THEM THE RESULTS OF THE HEARING. ON TUESDAY MORNING I WAS TOLD BY A WORKER WHO IS A FRIEND THAT AT 5:O0AM INMATE 260661 WAS SHIP TO MORGAN COUNTY CORRECTIONAL INSTATUTE IN KNOXVILLE TENNESSEE MY HEART WAS CRUSHED.I CAN'T UNDER STAND THE JUSTICE SYSTEM PLEASE HELP ME TO REGAIN MY FAITH IN THIS SYSTEM. MY SON HAS 3 TENNAGE CHILDREN A MOTHER WHO IS IN VERY ILL HEALTH WAS GRANTED PAROLE IN 2006 JAN. AND IN 2007 HIS LIFE AND HIS FAMILY LIFE WAS TURN INTO A NIGHTMARE.MY SON IS NO LONGER IN ONLY TENNESSEE AND HAS NOTHING PENDING IN MORGAN COUNTY YET AND HAS A JOB WAITING FOR HIM AND A HOME TO GO BACK TO AND FAMILY MEMBERS THAT IS READY TO HELP HIM IN ANY THING HE NEEDS. HE HAS ALREADY MISSED 2YRS OF HIS RE-BONDING WITH HIS CHILDREN AND BACK WITH LIFE.AS I READ YOUR ARTICLE ON THE EYES OF TRUST.WHAT DO YOU SEE? I WOULD LIKE FOR YOU TO LOOK INTO THE EYE OF THIS INJUSTICE AND DO SOME THING ABOUT THIS.I BEG YOU TO LET JUSTICE PREVAIL. THANK YOU MARY BRADLEY A CONCERN MOTHER
maryann7304 on 06/19/2009:
i am a 51yrs old widow.I HAVE A SON THAT ON MAY 13 2009 INMATE 260661 WAS GRANTED REINSTATEMENT DURING THE TIME OF HIS HEARING THE PAROLE BOARD WAS AWARE THAT HE HAD SOME DISPILNARY WRITE-UP'S AND WAS ON MAXIUM SECURITY AT ONLY TENNESSEE.THE NIGHTMARE BEGIN WHEN MY SON WAS ACCUSED OF A INCIDENT THAT LATER PROVE FALSE.BECAUSE MY SON WAS ON PAROLE HIS PAROLE WAS REVOKE AND HE WAS SENT TO TURNEY CENTER ON FEB.13TH 2007. AS INMATE 260661 AND HIS FAMILY WAITED FOR JUSTICE TO TAKE PLACE.FINAL HE PROVE BEYOND THE SHADOW OF DOUBT THAT HE WAS IN FACT INNOCENT. ON MAY 13TH 2009 MY SON WAS GRANTED REINSTATE. ON WAS SUPPOSE TO BEEN RELEASED BUT BECAUSE OF TURNEY CENTER CLAIM A HOLD ON HIM HE WAS HELD HOSTAGE FROM TURNEY CENTER.WHEN INQURED OF WHY HE WAS NOT RELEASED. I WAS TOLD THAT THE PAROLE BOARD WAS NOT AWARE THAT HE WAS ON MAX. NOW, I'VE NEVER BEEN INCAR.BUT I DO KNOW THAT IF I SAW A PERSON IN BLUE THAT PERSON WAS CLASSIFIED AS A MINIMAL RISK BUT IF A PERSON WAS IN WHITE THAT INMATE WAS ON MAXIMAL. NOW,I WAS TOLD THAT MY SON WAS NOT SUPPOSE TO HAVE HAD A PAROLE HEARING AND THAT THEIR WAS A RECITION HEARING FILED. I ASKED HOW CAN THEY HAVE A RECESSION HEARING WHEN MY SON CAME BEFORE THEM DRESS IN WHITE AND AS I SIT THERE IN THE HEARING HEARD THEM MENTION EVERYTHING THAT WAS DONE CONCERNING HIS WRITE-UP'S. TURNEY CENTER HAD ALREADY DISCIPLINE HIM BY ADDING A YEAR TO HIS PAROLE AND PUT ON MAXIMUM SECURITY. WHEN TURNEY CENTER PROTESTED HIS RELEASE TELLING MY SON P.O. THAT HE STILL OWE HIM SOME TIME FOR HIS WRITE-UP'S. I PERSONALLY WENT DOWN TOWN TO THE COMMISSNIONER OFFICE AND WAS TOLD THAT THEIR DEPARTMENT IS DIFFERENT FROM THE DEPARTMENT OF COMMISSION AND THAT THEY HAVE NO CONTROL OVER WHAT HAPPENS TO MY SON THEY ONLY HANDLE THE PAPER WORK ONCE THE IPO SEND THEM THE RESULTS OF THE HEARING. ON TUESDAY MORNING I WAS TOLD BY A WORKER WHO IS A FRIEND THAT AT 5:O0AM INMATE 260661 WAS SHIP TO MORGAN COUNTY CORRECTIONAL INSTATUTE IN KNOXVILLE TENNESSEE MY HEART WAS CRUSHED.I CAN'T UNDER STAND THE JUSTICE SYSTEM PLEASE HELP ME TO REGAIN MY FAITH IN THIS SYSTEM. MY SON HAS 3 TENNAGE CHILDREN A MOTHER WHO IS IN VERY ILL HEALTH WAS GRANTED PAROLE IN 2006 JAN. AND IN 2007 HIS LIFE AND HIS FAMILY LIFE WAS TURN INTO A NIGHTMARE.MY SON IS NO LONGER IN ONLY TENNESSEE AND HAS NOTHING PENDING IN MORGAN COUNTY YET AND HAS A JOB WAITING FOR HIM AND A HOME TO GO BACK TO AND FAMILY MEMBERS THAT IS READY TO HELP HIM IN ANY THING HE NEEDS. HE HAS ALREADY MISSED 2YRS OF HIS RE-BONDING WITH HIS CHILDREN AND BACK WITH LIFE.AS I READ YOUR ARTICLE ON THE EYES OF TRUST.WHAT DO YOU SEE? I WOULD LIKE FOR YOU TO LOOK INTO THE EYE OF THIS INJUSTICE AND DO SOME THING ABOUT THIS.I BEG YOU TO LET JUSTICE PREVAIL. THANK YOU MARY BRADLEY A CONCERN MOTHER

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