When the U.S. Supreme Court declared in its landmark case Graham v. Connor that force used by law officers must be “objectively reasonable,” Sam Faulkner had a question:
What’s “reasonable”?
The Court provided “no definitive answer regarding what a reasonable officer is or does,” says Faulkner, an instructor at the Ohio Peace Officers Training Academy and a lieutenant with the Mechanicsburg (OH) PD. This left cops “sent forth to our nation’s streets with enforcement duties but no well-defined rules of engagement.”
Consequently, “it’s possible for an officer to follow his training, departmental policy, and the wishes of his supervisory staff, be sued or charged criminally, and find that the judge or jury deems his responses inappropriate.”
He likens it to a football game in which “after every play, 8 to 12 people are brought in who have never played the game, and they decide if you played correctly. Would you want to play under those rules?”
Indeed, charges Faulkner, the uncertainty “can-and has-prompted some officers to say either, ‘Since they’re going to screw me anyway, I’ll make it worth my while,’ or, ‘I just won’t get involved.’ Either of these approaches to policing, of course, is inappropriate and unacceptable.”
The 59-year-old Faulkner has made it his life mission to de-fog the ambiguity of Graham and provide well-defined guidelines that are supported by most officers and most civilians alike as to what constitutes “reasonable” police responses in force confrontations.
His vehicle is a simple, short opinion poll, now available on-line, in which police and correctional officers and civilians are asked what responses they believe are appropriate to various level of resistance from suspects, ranging from back-talk to potentially lethal attacks.
More than 40,000 officers and some 8,000 civilians have participated in the survey so far, with the number growing daily. You can add your input here.
The cumulative tallies show a remarkable consensus about what’s reasonable and thus, in Faulkner’s view, constitute at least a powerful beginning of national guidelines for response to resistance. Already, appearing as an expert witness in civil suits, Faulkner says he has successfully used the survey results in more than 260 cases to help defeat plaintiffs’ exaggerated claims of excessive force.
“When a plaintiff’s expert testifies against an officer, he basically has a personal opinion and his resume to back it up,” Faulkner told Force Science News. “By getting the survey introduced into evidence, the defendant officer usually can show that thousands of his fellow professionals, as well as a cross-section of ordinary civilians, concur that his actions were appropriate, given the circumstances he faced. That’s tough for a plaintiff to overcome.”
Faulkner started his poll in 1990 as a pencil-and-paper survey conducted among his classes at the Ohio state academy, but he quickly sought a broader test group. “The first year, I put more than 30,000 miles on my personal car, plus air miles, traveling to other states” to capture officers’ opinions, he recalls. In some cases, he has surveyed entire agencies, large and small, on site. But it’s the Internet that has given him his widest reach. He says he has surveyed officers from every state and from hundreds of agencies, municipal through federal, and civilians from communities in every region of the country.
Faulkner’s on-line survey takes only moments to complete. Following prompts, you first enter your personal demographics: age, gender, education and income levels, race, and so on. Then, one at a time, you watch 5 different short video clips depicting increasing levels of suspect resistance and an officer’s escalating physical reactions. In each case, it’s assumed that the suspect is aware that he is under arrest, the arrest is lawful, and the subject is intentionally resisting an officer’s attempt to take control of him.
In the first scenario, for example, the subject “is not responding to an officer’s instructions or commands, or offers verbal threats or physical signs of resistance.” You are asked to check whether you agree or disagree that the officer is acting reasonably if he issues verbal or physical commands, calls for assistance from other officers, uses a “gentle hold on the subject’s arm” from an escort position, or uses “balance displacement” to move the subject. If you object to any of these options for dealing with this level of resistance, you are asked to specify which one(s) you believe to be unreasonable.
The subsequent scenarios depict resistance that ranges from dead-weight immobility and pulling away through wrestling, striking, and kicking to attempts at disarming and overt assaults with deadly weapons. You are asked to gauge the reasonableness of responses that range from joint manipulations and takedowns, baton strikes and use of electrical devices, to neck restraints and lethal force.
The final survey component asks you to rank various suspect behaviors (verbal resistance, pushing the officer away, attempting to take the officer’s firearm, etc.) as to how much of a threat they represent, on a scale of 1 to 10.
After that, you can see how your responses to the resistance scenarios compare to those registered by other survey takers.
On the day recently when Faulkner walked us through the survey, the cumulative results from both officers and civilians taking the test were identical. For example, 96% of both civilians and cops agreed that all the response options offered for Scenario #1 were reasonable, given the resistance described. Of the 4% who disagreed, most of those took issue with balance displacement. On each of the other scenarios, 95% or 96% agreed with all the options offered.
The options, it should be pointed out, conform basically to a conventional action-reaction Force Continuum.
“This can be tremendously helpful to an officer whose responsible reaction to resistance gets challenged and becomes a focus of controversy,” Faulkner explains. Scenario #4, for instance, involves a subject who is “striking or kicking the officer.” One of the response options listed is the Vascular Neck Restraint “(a ‘sleeper’ or control hold, a rear neck lock, not a choke hold).” That technique might be considered controversial, if not strictly off limits, in some jurisdictions. Yet 95% of officer and civilian respondents alike have included it among the options they consider reasonable for managing suspects who are resisting arrest by kicking and striking.
As part of his crusade to broaden his database and thereby even more solidly define what can be acceptable as reasonable, Faulkner would like to see certain modifications of the language with which administrators, trainers, and individual officers address force issues.
For one thing, he discredits the term “use of force.” He explains: “When people hear those words, the vast majority, including law enforcement, considers them a negative. A much more appropriate and representative term is ‘response to resistance/aggression.’
“The word ‘response’ denotes that the subject must be engaging in an action of either resisting or aggressing toward the officer or others. These are exactly the factors the courts want to hear in judging the efficacy of an officer’s conduct.
“Often officers are criticized because they do not do an adequate job on report writing. If we train them in ‘use of force,’ that is exactly what we can expect to get on reports: ‘I did this, then I did that, then I did the other.’ Yet the only way to judge an officer’s response is if you know the actions by the subject, the level of resistance or aggression the officer was encountering.
“The best way to get this point across to the officer is by labeling the topic correctly. It is not a Use of Force Policy, but more correctly a Response to Resistance/Aggression Policy. It is not a Use of Force Report, but much more accurately an Action-Response Report. This focuses the blame exactly where it should be, on the subject performing the resistive or aggressive action.”
He also believes that “the use of the words ‘necessary’ or ‘unnecessary’ in a force policy is flawed and without Constitutional requirement or support. To focus in on the problem these words create, consider this question: Is it ‘necessary’ to shoot a subject who has a toy gun or is it ‘necessary’ to shoot a subject who is brandishing an unloaded firearm?
“Such situations have plagued law enforcement and will continue to do so. Specifying that an officer’s reaction must be ‘necessary’ puts an impossible burden on the officer, implying that the end result could be known, which is a 20/20 hindsight perspective after the incident”-something that the Graham decision specifically cautions against.
Regarding Faulkner’s survey, Dr. Bill Lewinski, executive director of the Force Science Research Center at Minnesota State University-Mankato, told Force Science News:
“The years of dedication that Sam Faulkner has given to enlightening us on the meaning of ‘reasonable’ is truly admirable. His insights and explanations of his research results are informative and revealing. I encourage all our readers who have not yet taken Sam’s questionnaire to do so, see how their answers compare with those of other officers and civilians, and review his analysis of his data.”
A 128-page on-line book, covering Faulkner’s detailed analysis of results from his reasonable reactions survey can be accessed free of charge here.