Sunday, October 13, 2013

Contextual Compliance Took Kit

The word is spreading that the use of force continuum is dying a slow death. While the continuum model has served as a useful instructional tool for trainees over the years it has serious and even dangerous limitations as a tool for application in a field environment.
Police officers engaged in encounters with non-compliant offenders may feel that they are legally obligated to climb the use-of-force ladder and de-escalate to compliance, hesitating to take safer immediate assertive actions to end unlawful resistance. The stair- step dance of “he does that then I can do this” confuses practitioners, prosecutors, and juries. Fortunately the US Supreme Court has a refreshingly realistic standard of reasonableness which has yet to be fully grasped by policy makers of my generation still trembling from the Warren court years.
This article offers five principles of understanding encounters with non-compliant offenders under the doctrinal umbrella of offender-centered decision making. That is to say that the subject with whom a peace officer is in lawful contact is the primary decider of the tenor of the encounter.
In all cases where the officer is dealing with an encounter outside of a purely consensual one (in which the subject has the right to simply turn and walk away) the law explicitly demands that the subject comply with the officer.
1. Training and report writing about non-compliant encounters should concentrate on the offender’s behavior and accurately portray the officer as reacting to the offender in the context of the event.
While this principle may not sound radically different than current practice it is a contrast to the continuum model. The continuum doctrine and its underlying premise is that officers are legally and morally bound to use no force where the remote possibility exists of avoiding it and to use the least force theoretically possible in the least intrusive way for the shortest possible amount of time.
The reality is that when an offender is non-compliant (they become an offender at the moment of non-compliance) the officer has the legal and moral obligation to gain compliance as quickly and safely as possible. Rather than lowest force, we must transition to a most effective paradigm. In this context we would define “effective” as that which is quickest and safest. The most effective means of gaining compliance may not be the least possible force but must remain reasonable.
That which is most effective, i.e. fast and safe, tends to result in shorter physical contact when a hands-on disposition is inevitable. Briefer contact means less likelihood of injury to offender, bystander, and officer. In that light, application of effective means to end non-compliance is a moral imperative as well as tactically superior and justifiable.
In addition, while de-escalation is one of the many tools in the compliance tool kit it is not always wise to employ attempts at verbal calming. Some conditions contributing to non-compliance are medical emergencies dependent on brain chemistry that will not respond to calming techniques and that will only get worse and less treatable over time. This does not argue against crisis intervention methods, but rather puts those methods in the tool box for use when appropriate and to be left in the box when they are not.
2. Restructure the language of reporting to eliminate the term “use of force” from reports, policy, and training as much as possible.
The baggage that comes along with this term unfairly colors any objective report and tacitly implies that the officer’s actions are suspect and brutal. It promotes the assumption that if force was used it was the officer’s fault and he or she has some explaining to do.
In keeping with the concept that the decision to be non-compliant is with the offender, an officer’s efforts to gain lawful compliance should be described in those offender-centered terms with the officer identified as the victim. The subject of the narrative should be the offender, not the officer. Putting emphasis on the behavior of the offender and the context of the encounter more accurately portrays the offender’s unlawful behavior and minimizes the perception of the officer as the aggressor. The officer leads the reader to agree with him or her that the use of force was imposed upon them by the offender.
With offender-centered reporting, agencies may decide that separate forms for reporting use of force are unnecessary. Those reports were important in an earlier era of policing but can be supplanted by a more comprehensive approach to report making.
Any efforts required to gain offender compliance should be a part of the offense report narrative; fully documented in the accurate and comprehensive description of the offender’s unlawful behavior and the context of the contact. The offender-centered concept of non-compliance enhances officers’ awareness of their victimization which, in turn, will likely enhance the prosecutors’ and juries’ perceptions as well.
Use of force reports are by their nature defensive and carry the cloud of accusation over them. Documenting non-compliance puts the burden where it should be – on the offender’s behavior in the context of a criminal act of resistance.
In using language to convey the circumstances of the event officers should avoid passive language like “he was then subdued” and avoid mere labeling such as “resistive”, “combative”, “uncooperative”, “non-compliant” unless providing specific descriptions of behavior such as walking away, pushing, refusing to answer, fighting, etc.
3. Context is critical.
The context of the encounter gives the officer facts that determine his or her course of action. These facts are almost always unknown to the offender, but the offender’s ignorance of them must not justify his or her failure to comply. The law requires compliance.
The significance of environmental, social, and historical factors that color the officer’s perceptions of the encounter will escape the reader of the report unless the officer explicitly guides the reader to navigate the cumulative significance of those factors. All of the factual circumstances of the event and the officer’s subjective interpretation of them must be communicated in the report.
The reader of the report must have as much information as possible about the situation faced by the officer. Standard concerns such as time of day, number of persons, and knowledge of the offender’s emotional disposition should be articulated. Officers must give voice to their fears and concerns even though documenting fear seems counter to our self-image. Those who read the officer’s report should not be left to guess or assume the appropriateness of the officer’s actions without a fully painted picture.
4. Use the “Contextual Compliance Tool Kit” language and imagery.
Stage and step compliance policies should be altered to explicitly recognize the rapid decision making and fluidity inherent in non-compliance events. The metaphor of the tool kit is much more useful than some geometric graphic.
Rubrics, tables, arcs, stair steps, and wheels all imply some rational orbit of events when a person resists a police officer. The process of deciding how to gain compliance is a logical one, not trial and error.
The use of force continuum is predicated on trial and error – if step two doesn’t work go to step three and so on. It implies a willingness to err on the side of being ineffective. Achieving compliance efficiently is rational – the officer will select the tool most likely to be effective in solving the problem of non-compliance.
5. Document success.
Officers tend to subtly express in their reports that resorting to force was somehow a failure on their part. Lawful use of force is never a failure, except perhaps a failure of judgment on the part of the offender. Gaining compliance is what law enforcement does. That’s the “enforcement” part. It is what police are hired to do, empowered to do, entrusted to do, and expected to do. It is necessary and honorable.
The narrative regarding the efforts to gain compliance should be as positive as a realistic account can be. Is there a happy ending when somebody is subdued by multiple officers and handcuffed? Certainly in the universal sense there was failure somewhere – family, school, religion, government, personal choices; all the things the criminologists study. But the officer’s mission is direct: gain compliance effectively. If that was accomplished then say so in the report. Document all of the care-giving that followed the offender’s resistance, including rights advisements, checking tightness of handcuffs and restraints, and obtaining medical care.
Policy makers need to understand that the reactive measures of the past generation to lawsuits and bad publicity have achieved their purpose. We must proceed with caution and be ever mindful of the potential for litigation and loss of public confidence while scrupulously guarding civil rights of all whom we encounter. We need not agree with the enemies of law enforcement nor apologize for gaining compliance under the law – using all the tools in our tool kit.

Tuesday, October 8, 2013

Ready, Set, Go - the Attack Cascade

When does a waterfall start? If you wait to furiously paddle your kayak when the water goes from horizontal to vertical you will be swept away. Just like a waterfall starts upstream, an attack or escape begins cascading long before the fist or feet fly.

No batter waits for a pitcher to make a throw before taking a swing. They make their decision based on practiced observations of pitcher behavior ( . Cops should be trained to act based on behavioral cues of attack or flight, rather than to react to an attack at its peak. Critics would call this response preemptive, but the reality is that, just like the batter's swing based on the pitcher's windup, the fight has begun before the first blow is struck. We'll rely on science to justify our actions in the courts.

With the offender who senses a threat (Crap! I'm going to jail!) his primitive brain alerts the body and starts the adrenaline for fight or flight. Depending on the magnitude of the threat, according to that individual's perceptions,  the primitive brain can override the thinking process and take over the body. (I don't know why I ran, officer. I just did!)  If the threat is not overwhelming, the primitive brain gives the thinking brain a little time to mull things over. If the thinking brain has time to put the brakes on the primitive brain, it may decide that compliance is in the body's best interest and the offender follows your instructions. Or the thinking process may be to develop an escape plan. Can you know the difference?

Deadly Delay
Many police officers, as seen on videos, wait far too long interpreting attack signals before engaging an offender. Subtle and not-so subtle manifestations of this mental process show up in the body seconds before gross body movements of fight or flight present. I call this process the cascade sequence. Just like we don't want to start paddling until we're over the brink, we don't want to start dealing with non-compliance until the offender strikes. 

Our fear of tackling a nervous, but complaint, offender creates an intervention delay that can result in more suspect and officer injury. We're trying to make the decision about whether this person is just nervous because of the police contact and all of its consequences, or if the body is just waiting for the best time to fight or escape. 

Is Cascading Different for Compliant and Non-Compliant Offenders?
An absolute necessity for early intervention is your ability to articulate your observations of predictive behavior of attack or escape. You'll notice I have not used the phrase "pre-attack indicators" because the cascade of brain activity is already engaging in attack behavior, so it's not "pre" anything. I suggest that trainers start referring to the "cascade of indicators" and save the phrase "pre-attack indicators" to refer to environmental circumstances such as the existence of an arrest warrant or the presence of other persons as an audience for the offender. 

In general, compliant nervousness will manifest in the offender's body position being square with the officer and concentrated on his own existing space rather than angled or gradual positioning for fight or flight. Nervous jitters will center in the hands and voice of a compliant subject. Compliant subjects may talk more, since speech requires brain cells that are not available to the person contemplating for fight or flight. Physical preparation of the non-compliant is going to the shoulders, elbows, feet, hips, and knees for fight or flight. The compliant person is bracing for submission and will have nervous hands and fingers rather than the large muscle groups. The submissive will more likely maintain eye contact with you; the non-compliant will be scanning for targets, confederates, or escape routes.

Where Scenario Training Falls Short
Arrest control scenario training is currently centered on responding to the gross motor movements of an attack in progress ("defensive" tactics). We aren't likely to authentically reproduce genuine, subtle, fear based fight or flight behavior in role players because those are autonomic and impossible to mimic. For now, your best training in early intervention in the cascade sequence is your own experience put to use. And, of course, reading my new book The Badge and The Brain!