In the Ceballos case, officers responded to a high-priority disturbance involving a man “with two bats and acting crazy.” After parking several houses away, officers began to walk toward the man who they could see “pacing in the driveway, swinging a baseball bat, yelling and throwing his arms in the air.” At this point, officers knew that the suspect’s wife and 17-month old daughter were safely away from the residence and that witnesses believed that the suspect might be on drugs.
Starting at what the court described as 100 yards from the suspect, the officers approached the suspect and repeatedly ordered him to drop the bat. Instead, the suspect went into his garage where he was momentarily out of the officer’s view. When he returned, the suspect was still carrying the bat and began walking toward the officers. One officer pulled out his gun, while the other drew his Taser. When ordered again to drop the bat, the suspect refused and responded with “F*** You!” and “Or what, Motherf***!” The officer with the gun warned the suspect that he would be shot. The officers and the suspect continued to approach each other until they were about 20 feet apart, at which point the officer fatally shot the suspect, who by then had left his driveway and was in the street. Total time from arrival to shooting was less than one minute.
Qualified Immunity, State Created Jeopardy, and Honest Debates
The officers in the Ceballos case were sued by the suspect’s family for excessive use of force, but were hoping the case would be thrown out of court based on “qualified immunity.” Readers familiar with qualified immunity understand that the rule protects officers from civil liability for official conduct. To protect officers, who must make multiple judgment calls each day, the law makes it hard to win a lawsuit against the police.
If there can be honest debate among officers as to whether a use of force was reasonable, then qualified immunity applies. However, the court can deny this protection if it would have been obvious to any reasonable officer that the police violated a constitutional right. That is what happened in the Ceballos case.
If there can be honest debate among officers as to whether a use of force was reasonable, then qualified immunity applies.
When deciding if the police used excessive force, the 10th Circuit court considered whether the officer “recklessly or deliberately” created the need to use force. In those cases, even if the force was reasonable in the “final moment,” the officers will be denied qualified immunity. To make its decision, the court looks at all the circumstances, including the police conduct before the use of force if it was “immediately connected” to the suspect’s threat. This makes it critically important for officers to base their conduct on evidence-based training and education. They must recognize and be able to explain to the courts the real-world considerations that distinguish reckless conduct from conduct that may be imperfect, but still reasonable.
Reckless or Reasonable?
Since officers can’t be “reckless,” it is important to know how that word is used when an officer is sued for excessive force. The Supreme Court views “recklessness” as an act that creates an unjustifiably high risk of harm that is either known or so obvious that is should be known. This means the harm must be predictable and likely to occur.
Not all risky conduct is reckless; only that conduct creating unjustifiable risk. Whether risk is justified depends on a “balancing test,” which compares the purpose of the use of force against the impact it has on the suspect. In legal terms, Did the government interests served by the act outweigh the intrusion on the individual’s 4th Amendment privacy interests? In other words, Was it worth it?
When the Ceballos court allowed the officers to be sued (by refusing them qualified immunity), it was saying that it would have been obvious to any reasonable officer that yelling commands to drop a weapon after “quickly” walking to within 20 feet of an armed, mobile, and emotionally distraught individual, was reckless because it created an unjustifiably high risk of harm to the suspect.
The court was also saying that the officers created the need to use deadly force when they unreasonably provoked the suspect to aggressively assault them. It is important to recognize that reasonable people can disagree. Even among the court members, one judge did not believe that it would be “obvious to any reasonable officer” that the police engaged in excessive force. But the final vote was 2-1 for denying qualified immunity, which paved the way for the officers to be sued.
De-Escalation and Containment: Critical Insights
The Ceballos majority (the two judges that ruled against the officers) noticed that the officers failed to engage in Critical Incident Training methods and strategies (CIT). The court cited the failure to use de-escalation techniques, the quick approach, the “yelling” of commands, the refusal to “give ground” as the suspect approached, the suspect’s diminished capacity to reason, and that the suspect “was fully contained at the time he was shot and killed.”
As officers try to identify lessons from the Ceballos case and consider the appropriate use of de-escalation and containment, there are critical insights worth noting.
Containment, Control, Contact, and Communication
Delaying the use of force so that verbal de-escalation may be attempted is certainly a best practice, so long as the risk of not intervening is outweighed by the risk of intervening. Like all threat assessments, this balancing requires officers to make educated “best guesses,” and to be constantly balancing the government interests against those of the suspect.
It is equally important that officers understand how conditions on the street can affect response options. For de-escalation, that means considering the impact of containment, control, contact, and communication.
Containment is the enforcement of boundaries that define the acceptable area of non-compliance. A suspect who is not bound by moral restraint (he stops simply because you told him to stop) or physical boundaries, including the boundary created by an officer’s actual or threatened use of force—is not contained! Distance and cover may mitigate threats against officers and help avoid the escalation that can result from close confrontation. But officers who maintain distance and cover, may sacrifice containment and control.
Control is the second condition evaluated when considering verbal de-escalation options. Even where a suspect is contained, on-going criminal conduct and access to weapons, evidence, potential victims, and means of escape must be considered before slowing things down and creating distance for verbal de-escalation. Where the only person threatened by the suspect’s conduct is the suspect himself, the decision to maintain distance and attempt verbal de-escalation may be the most reasonable approach. Choosing to delay enforcement action should always be balanced against the suspect’s ability to improve his tactical advantage, destroy evidence, alter shooting backgrounds, or otherwise continue to engage in criminal conduct.
Communicating with people in crisis requires a high level of emotional intelligence, patience, and skill; persuasive communication even more so. The decision to delay the use of force and attempt verbal de-escalation and communication rests as much on the officer’s competence in those areas as the ability to create and maintain contact with the suspect.
Communicating with people in crisis requires a high level of emotional intelligence, patience, and skill…
Contact as a condition for de-escalation involves psychological, emotional, neurological, and sensory interaction. Simply put, the full range of communication elements (content, voice, and non-verbal) are most effective when the suspect can not only hear you, but hear the subtle changes in your voice, see your facial expressions, and perceive your body language. Distance and cover significantly impede the effectiveness of verbal de-escalation options.
Suspects who experience psychological, emotional, or neurological impairment may simply not hear or understand an officer’s communication efforts. Although environmental factors can be manipulated to influence an emotional state, the street often provides far fewer options than inpatient health facilities. On the street, recommendations to dim lights, remove distracting people, and reduce noise and other stimulus are not always options. The recommendations to use crisis intervention methods must always be considered against the reality of police encounters. Consider that such training recommends that officers create space to avoid escalating a person in crisis. In the Ceballos case, officers were scrutinized for approaching within 20 feet of the suspect. The distance recommended by modern crisis intervention training? 5-6 feet.
An expert witness, testifying for the plaintiff in the Ceballos case, noted that CIT and its components of de-escalation and containment are “consistent with well-established modern police standards.” Conspicuously absent from the record are the conditions under which these tactics can reasonably be applied.
The Force Science Institute continues to answer the application question with evidence-based considerations. The concepts of Time, Threat, Travel, Thoughts, Tactics, Talk, and Training (the 7 T’s) are used to recognize or create the conditions necessary for effective de-escalation.
The Force Science approach provides officers a structure through which they can exercise great performance and decision making and, if necessary, explain the reasonableness of their decisions when they stop talking and force compliance. It allows supervisors to train and assess these decisions beyond current national guidance, which instructs officers simply to “de-escalate whenever possible and appropriate,” and “use force when de-escalation techniques are not effective or appropriate.”
Critically important, evidence-based de-escalation training promotes an understanding within the police and legal profession of when crisis intervention methods, including containment and de-escalation, can reasonably be applied—or precluded.
Courts, government officials, and community members should expect that de-escalation and other crisis intervention options are directly affected by human factor dynamics and threat assessments.
No one should be led to believe that a failure to attempt CIT methods before using force is tantamount to reckless police conduct—or beyond honest debate.
[i] Estate of Jaime Ceballos v. Husk, No. 17-1216 (10th Cir. 2019)