April 30: Beth and Melanie must accept that they will never pass the Police Academy Exam
Ladies and gentlemen, let’s give it up for House Bill 2037, which governs the use of force in WA State.
Sergeant Sofianos: Who knows what RCW stands for?
[Beth and Melanie raise their hands like they’re volunteering for kp duty.]
Someone in the back called out the answer, which garnered a satisfied nod from Sergeant Sofianos. He started the lesson with a basic WA law definition of physical force: any action toward others that causes pain or injury.
Back in the day, cops had a “Use of Force Continuum.” (Quoting Sergeant Sofianos: “It was kind of like a triangle. . .”) The sergeant gave us an example: if he was going to arrest someone, and that person put up their fists and was obviously planning to fight, did the sergeant himself have the right to put his fists up, as well?
The class guessed that he did not, because doing so would escalate the situation. The sergeant agreed to a certain point; to do so would be to turn the interaction into a “Let’s See Who’s Tougher” contest. (A sport made popular by Your Favorite Beer.) But, he pointed out, there would be times when force would be necessary to achieve the objective (an arrest, for example.)
Sergeant Sofianos: “When law enforcement is forced to use force against somebody, it’s very important we don’t lose.”
The reason for this seemed clear enough, but the sergeant went down the list for the folks in the nosebleed section:
- Cops don’t want to get hurt or killed
- Cops need to stop people from hurting or killing others.
The continuum said if someone puts up their dukes, you could use a baton. WA State changed this policy years ago, so that the law now directed cops to use the least amount of force necessary to produce the desired result.
I don’t think I can adequately convey the layers of politeness, respect, sarcasm, disgust, resignation, outrage, frustration, concern, heartbreak, dedication and determination that seeped into Sergeant Sofianos’ deliberately phlegmatic tone during this portion of the discussion. Think of a continuum kind of like a dodecahedron.
The sergeant returned to his earlier what-if scenario: “Let’s say I go to arrest somebody, and say ‘Put your hands behind your back,’ and they say, “No.” And put their dukes up. Can I shoot them?”
(If you are unclear on this point, the answer is no, despite what you see in movies. It’s not a reasonable use of force.)
Question from the class: Do the rules change if the person has a knife?
Sergeant Sofianos: “When you put humans together—and kind of the neat thing about this job—is you can never say “This is what I’m going to do in every situation.”
In other words, the rules constantly change. This is one of the (countless) reasons I could never be a cop. I can only make it to the end of every day by convincing myself that life conforms to a series of patterns. You know that girl in every slasher movie who insists on going into the basement in her underwear? I am not that girl. I don’t want to know what’s in the basement. The basement can sort itself out.
From what I can tell, cops are all, “Hm, a basement. I think I’ll grab a pair of bracelets, smash through the door and haul Jason off to Happy Jack’s Tomato Ranch.”
Sergeant Sofianos points at the door and outlines a new scenario: someone has come into the room with a knife and is trying to kill him. In this instance, shooting the man is still not the only option. There are tables in the way, for example; this may give enough cover that the sergeant has time to pull out his taser and handle the situation in a nonlethal way. The sergeant told us that the new tasers the department had recently purchased (the Taser 10, more on that in a future post) were excellent. But in his experience, the chances a taser would work to stop somebody were about fifty-fifty.
And as for shooting bullets: “One bullet, if I’m shooting that person one time, or many times, doesn’t necessarily stop that person from getting to me,” Sergeant Sofianos said.
Huh.
So how messed up do you have to be in order to. . .
Moving on.
If that person is still advancing and threatening a cop’s life, the cop is forced to escalate the level of violence with which he will respond. Remember the Fog of War? This is where rubber meets road. You have to be able to back off when a high level of force is no longer necessary.
Sergeant Sofianos: “If somebody gives up, you can’t just say, ‘Well, I don’t care if you gave up, you really got me mad!’” He went on to add that cops need to remember that it isn’t personal, and that you need to be able to set things aside. (“Anger issues really don’t go well with this job.”)
Also, there are times when a cop has to make the decision to use whatever is to hand to deal with a situation. Yes, they are trained to use guns and pepper spray and tasers (oh, my!) But sometimes, cops must also get creative in situations where the usual tools won’t work.
Sergeant Sofianos: “They haven’t trained us to, say, hit someone with a car. That’s not in our training. They don’t go, “Okay, here’s how you hit someone with a car.”
He went on to ask a question: if he showed up at a school and there was somebody there indiscriminately shooting people, could he hit that person with his car? Yes, he could. He’s not trained to do it, and cops must always keep in mind that the law will hold them accountable for their decisions. But in a situation where it would save lives, you use what you’ve got.
I’m sure you’ve been saying to yourself, “I wonder which RCW number pertains to use of force?
Here to help! It’s 10.120.020.
You can use physical force when, for example:
- You’re arresting someone
- You have probable cause
- Someone is fleeing “a stop for a temporary detention” (Also called a “Terry stop.” An instance wherein an officer will prevent a person from fleeing, or stop someone actively fleeing. There was a legal case–-Terry vs.Ohio—which clarified this issue and supplied the nickname.)
- If there is an imminent threat (more on that in a second.)
For a short while, the cops weren’t allowed to use force in certain situations. Sergeant Sofianos provided this example: Imagine that you called the police at 3 am and told them that two people broke into your car. An officer sees two people who match the description you gave (a couple of guys, one in a black jacket, one in a red jacket). But he didn’t actually see the two break into your car. He can call to them and ask them to stop so he can talk to them, but all they would have to do is say no and walk away. (This would be considered an “investigatory detention.” Technically an “unsuccessful investigatory detention.”)
Sergeant Sofianos: “In that situation, I didn’t have probable cause for those two.”
(Let us all keep in mind that this was a totally hypothetical situation involving two hypothetical guys wearing red and black jackets at 3 am.)
Sergeant Sofianos: “Probable cause is a high bar.”
But that restrictive law is no longer in effect. Nowadays, cops are legally allowed to physically detain folks. Caveat. They can only do it after they announce, “You are not free to leave.” Sort of the Simon Says approach to protecting the citizens of Clark County.
Now, if a cop has to kill somebody to stop him, that’s considered “deadly force.” There are strict guidelines for appropriate use of deadly force, as outlined in the RCWs:
DEADLY FORCE. Except as otherwise provided under this section, a peace officer may use deadly force against another person only when necessary to protect against an immediate threat of serious physical injury or death to the officer or another person.
Some additional terminology:
- Probable cause: To quote the sergeant, “I can take you to jail, click-click.” You might not be found guilty, but you will go to jail.
- Reasonable suspicion: You won’t be jailed; more investigation must be done.
- Immediate threat: someone has the ability, opportunity and intent to immediately cause death or permanent injury. In this instance, deadly force is appropriate (and necessary.)
- Example: Someone has a gun (or is brandishing a gun).
- Imminent Threat: it is not confirmed that someone will do harm.
- Example, per Sergeant Sofianos: “Let’s say I have access to a nuclear weapon. Which I may or may not. . .”
If the sergeant says he is going to drop a bomb, can law enforcement simply shoot him? Nope. The threat is real, but not real-time. It doesn’t justify the use of deadly force.
Question from the class: What about hostage situations?
If the person is actively threatening the lives of hostages, deadly force is appropriate. It would be considered an immediate, rather than an imminent threat. As the sergeant put it, “One word in a law changes a lot of things.”
The use of force policy at the Sheriff’s Office is sometimes more restrictive than state law. In the case of pursuit: the state law has recently changed. For a while, when the police were chasing people in cars, those people were calling 911 to report that a cop was chasing them and according to law, cops weren’t allowed to do that. Unless you had probable cause, you could not chase someone in a car. Since the state law changed, cops are now allowed to chase anyone who commits a crime. Clark County policy hasn’t changed yet, and the sergeant doesn’t think it will be quite as permissive as the state policy. He doesn’t think the voters will be okay with it.
Sergeant Sofianos reminded us that vehicle pursuit is extremely dangerous. If the chase happens on the Interstate at 3 am (right around the time a couple of guys in red and black jackets are breaking into cars) then the chase is an acceptable risk. In the middle of the afternoon, a car chase is a bad move.
So what if a cop sees another cop using excessive force?
Answer: that cop has a legal duty to intervene on behalf of the civilian. Interestingly, this law applies to civilians, but not to cops. Who are apparently not citizens. But I digress.
Cops are trained to assess the necessary level of force through some pretty disturbing scenarios. The sergeant talked about one recruit being asked to run across a field to get his heart rate up. Then he dealt with a very realistic scenario wherein a couple of people acted out a domestic dispute. The cop got rough. Then he got to watch the whole thing play out on a cell phone recording. There was another situation where a female recruit was asked to break up a dispute, and apparently grabbed one of the role players by the back of his vest and tossed him several feet. One cannot help but picture Animal Control Girl in that situation.
[Note: I actually went through a couple of these scenarios myself. Dear Heavenly God. I’ll tell you more in a later post.]
If a cop is off-duty, he is still legally bound to intervene if he can, although he’s allowed to take a “thoughtful approach.” He’s in plainclothes, so he isn’t expected to rush in, but he can call 911 and film the incident with his phone. If he does not act in some way, he is considered to be just as guilty as the offending officer.
Another interesting twist: there is such a thing as a “Special Relationship,” which obligates police to intervene if they have already promised they would do so if a particular event arose. There are instances wherein it would actually be better if the police did not immediately intervene, but a special relationship means they have to intervene anyway.
If there is a problem between two strangers or acquaintances, an officer isn’t necessarily obligated to arrest somebody. But there is one instance in which police must make an arrest, no matter what. (The sergeant gave us a chance to guess. We got it wrong.) The instance is actually domestic violence. Reason being, domestic violence always escalates. If somebody slaps her roommate and an officer is called (and there is probable cause that she slapped someone) the police officer must arrest her. Although this is not a federal law, many states have similar laws.
However, it also allows the police to not intervene if doing so would worsen the situation. People threatening to kill themselves with a gun are the best example of a situation like this. Often, if the police rush in when someone is pointing a gun at their head, the person will either shoot himself, or shoot a police officer (this is particularly true if a SWAT team responds. Suicidal people don’t react well to having their doors and windows broken.) According to Sergeant Sofianos, cops have done more walk-aways in the last couple of years than in the prior eight to ten. The police are not legally obligated to rush in, and in fact, when it comes to suicides, generally will not do so unless the suicidal person is also threatening to kill other occupants.
If this is all feeling wishy-washy-grey-area to you, that’s because it is. A cop has to make his (or her) best judgment call in the moment, utilizing only the amount of force necessary. In the end, a jury will decide whether his use-of-force decision was correct. Well. A jury, a judge, a prosecutor, a defense attorney, his immediate supervisor, his commander, and Sergeant Kevin Schmidt in Internal Affairs.
But there is a set of guidelines, thanks to the November 1934 case Graham vs. Connor: the Reasonable Officer Standard.
Cops evaluate the necessary level of force based on:
- Severity of the crime
- Is it a misdemeanor/property crime? Or a felony/personal crime?
- Immediacy of the threat
- What is the threat posed by the subject? If he’s a robber, you can tase him. If he’s aiming a gun at somebody, you can shoot him. You can definitely shoot him if he runs outside holding a gun. Please note: WA is an open carry state. So be sure he’s aiming.
- Whether the suspect is actively resisting arrest
- Whether the suspect is attempting to avoid arrest
Sergeant Sofianos displayed a slide with a cartoon picture of a little girl stealing cookies out of a cookie jar.
[Beth: “A hardened criminal.”
Sergeant Sofianos: “You gotta stop ‘em early.”]
The sergeant explained to us that although tasing the little girl was an option, the state would find that excessive under Graham vs. Connor. So oddly enough, one of the metrics for evaluation is the level of governmental interest. (What would The State want you to do?)
Another thing you have to take into account is the level of resistance to arrest:
- Level One: Passive/non-compliant.
- You tell someone to put their hands up, and the person says “I don’t want to.” Apparently cops had an open invitation to tase people for this, back in the day.
- Level Two: Verbally Combative.
- You tell someone to put their hands up, and they yell threats and verbal abuse to indicate that they don’t want do. Cops often send in a dog to deal with this.
- Level Three: Active Resistance.
- You tell people to put their hands up, and they run for it—or you try to cuff them (“clink-clink”) and they physically resist.
- Level Four: Assaultive Resistance.
- This is when cops are most likely to be killed.In this situation, it is permissible to use lethal force.
Sergeant Sofianos: Is there a gun involved in every situation? Yes. Mine. Suspects can disarm an officer and shoot him. This is often how an officer is killed in the line of duty.
The takeaways for Graham vs. Connor:
- Cops must follow a Reasonable Care Standard
- Cops must use the least amount of physical force necessary to overcome resistance
- Cops must consider the characteristics of the suspect (whether the person is a minor, on drugs, pregnant, etc.)
- Cops must terminate the use of force as soon as the necessity ends
- Cops must have non-lethal and less-lethal methods available and use them whenever possible
That concluded a whirlwind tour of a subject that Police Academy trainees cover in far, far more depth. Sadly, my post can’t include the little cartoon pictures that went with most of these slides. It’s a shame, because the sergeant was very proud of them. Also, he feels that he should play the lottery more.
A five-minute break, and then it’s time to look at nonlethal weapons!
