“Escape Clause” Needed In Use of Force Policies

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Does your department’s use-of-force policy allow officers to deviate from it in unanticipated but reasonable ways?

Such an “escape hatch” provision is critical because officers may not always be able to conform to policy, despite their best intentions, according to an article by Jamie Borden in Vegas Beat, a publication of the Las Vegas Police Protection Assn.

Borden is a force investigator and force policy crafter for the Henderson (NV) PD. The first officer to receive certification from the Force Science Institute as an Advanced Specialist in Human Factors, he is also an instructor in the two-day Force Science Basics seminar and the week-long Force Science Analysis certification course.

“With the onset of digital cameras and cell phone videos, the [force] game has changed significantly, and policies need more thought and scrutiny than ever before,” Borden writes.

But in drafting or updating them, departments need to realize that in some critical incidents, where an officer is fighting for his or her life, a “policy-perfect scenario” of response may not be possible, he argues.

Policy may state that only a “trained” use of force or compliance technique is permissible. But in rare, desperate cases, an officer may be forced to improvise an “outside-the-box” tactic or technique to survive, Borden says.

To cover such exigencies, he recommends including language to this effect: “If an officer uses an improvised technique or tactic, in a dynamic and rapidly evolving situation, the officer will specifically articulate the need to do so. Also, the officer shall articulate and describe the improvised technique or tactic.”

This accommodates unforeseen realities of the street but still allows officers to be held accountable for behaving reasonably, albeit unorthodoxly, given the circumstances.

“It is negligent thinking to expect a policy to cover every aspect of the application of a use of force,” Borden writes. “[P]olicy cannot possibly list every justifiable and reasonable response in an infinite array of possible force encounters or levels of resistance.”

Accommodating an exception to a general rule “is not implying that an officer should use excessive, unnecessary, or unreasonable force,” he emphasizes.

In the article, Borden expands on his policy philosophy, including his belief that references to any kind of force continuum should be removed from policy guidelines.

The article, “Use of Force Policy Matters–Pre- and Post-Incident,” can be accessed in full free of charge by clicking here. NOTE: Go to pg. 12 to begin reading.

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