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A Force to Reckon With

It is a common scenario: A security officer makes an arrest and the suspect resists. The suspect is injured and files a lawsuit claiming that the officer used excessive force.

When the incident is later examined during preparation for trial, attorneys discover that the security training manual was modeled after what is called the force continuum, traditionally used by law enforcement, where officers are taught a series of progressive reactive steps designed to limit the use of force to only what the situation requires. However, force-continuum policies were originally designed for police and not for private security operations. Moreover, even police departments today are reexamining whether it is the appropriate model to use. This article will discuss why security should replace force-continuum policies with guidelines based on reasonableness standards set out in case law.

Historical Perspective
No one knows who invented the force-continuum concept, but common belief within the law enforcement community is that Dr. Kevin Parsons, Ph.D., a national police trainer and inventor of the ASP baton, coined the term when he developed a multistep program for addressing violence.

The steps, still in use by many agencies today, have morphed into at least 55 different versions. Most force-continuum programs involve similar steps. Step one is defined as an officer being present; step two involves verbal commands; step three includes physical restraint by the officer, including pepper spray and stun guns; step four is the deployment of chemical agents such as tear gas; step five contains other nonlethal tools, such as batons; and step six is the use of deadly force. The only similarities among these varied continuums are steps one, two, and six. Steps three, four, and five are placed in different step locations depending on the rationale of the particular law enforcement agency or private-sector company.

The force-continuum model was incorporated into police training programs. The Federal Law Enforcement Training Center (FLETC) in Glencoe, Georgia, developed an expensive and colorful continuum that looked like a pyramid to help explain the force model and its proper application. Major law enforcement groups, such as the International Association of Chiefs of Police, the National Sheriffs Association, and the Commission on the Accreditation of Law Enforcement Agencies, accepted the continuum as a de facto training standard.

However, the force-continuum policy may be near the end of its life cycle. Several problems have developed in law enforcement over the past 20 years with the incorporation of force-continuum policies into training. Officers have had difficulty applying the policies, and juries frequently misunderstand them. Also, because there is no legal standard against which to measure force-continuum policies, attorneys manipulate them in litigation to benefit the plaintiff.

Relying on a force-continuum policy as a legal defense invites the pitting of one version of the force continuum against another. How would an organization react during trial if another force continuum were presented to the jury and it significantly differed from the one the organization’s security officers used? Arguing why your force continuum does not look like another continuum only demonstrates to the jury that there is confusion in the security profession regarding use of force. Jurors may decide that if the security company doesn’t know which force continuum to use, then perhaps the security officer was improperly trained, thus making the security organization liable for the plaintiff’s injuries.

There is an alternative that stems from the 1989 landmark U.S. Supreme Court case Graham v. Conner, the first to focus on amendment-based use-of-force training. In the case, Dethorne Graham, a diabetic, began to suffer low blood sugar at his home. Graham contacted a friend, William Berry, to drive him to a local convenience store to get some orange juice. As Graham entered the store, he saw a long line of customers. Determining that he could not wait in the line, Graham exited the store and asked Berry to drive him to another friend’s house to get juice. Officer Connor, with the Charlotte (North Carolina), Police Department, saw Graham exit the store and became suspicious. He followed Berry and pulled him over.

Although Berry and Graham told Connor that Graham was a diabetic suffering from low blood sugar, Connor made the pair wait until one backup officer arrived at the scene and other officers went to the store to investigate whether anything was amiss there. While the investigation was underway, Graham was pushed by officers and shoved into the car. A friend of Graham’s brought orange juice but the officers refused to let Graham drink it.

By the time the investigation was over and Graham was released, he had a broken foot, cuts on his wrist, a bruised forehead, and an injured shoulder. Graham sued Connor and the police department, claiming the police used excessive force.

The U.S. District Court for the Western District of North Carolina found in favor of the police, ruling that the force “was not applied maliciously or sadistically for the purpose of causing harm.” On appeal, the U. S. Court of Appeals for the Fourth Circuit upheld the lower court’s decision. But the U.S. Supreme Court overturned the verdict, disagreeing with the standard applied by the district court.

The high court rejected the absence of “malicious or sadistic” conduct as a test of reasonableness. Instead, it held that “all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.”

Additionally, the Court ruled that “the Fourth Amendment ‘reasonableness’ inquiry is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

According to Graham, officers must consider four issues: Is the suspect an immediate threat to officers or others? Is the suspect actively resisting seizure or attempting to evade seizure by escape? Are circumstances tense, uncertain, and rapidly evolving? Is the crime at issue a severe one?

A few years later, an appellate court looked to the principles set out in Graham in the case Scott v. Heinrich (U.S. Court of Appeals for the Ninth Circuit, 1992). In that case, the court found that use-of-force decisions should be made based on what is reasonable at the time. In the case, officers who were being shot at identified the presumed shooter and returned fire. The officers killed the suspect. However, it later became clear that the deceased man had not been shooting at the officers. The man’s wife sued the police, arguing that they should have used less intrusive measures when dealing with her husband.

The court disagreed. In the written opinion of the case, the court stated that “requiring officers to find and choose the least intrusive alternative would require them to use superhuman judgment. In the heat of battle, with life potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness in officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress.”

By contrast with the reasonableness standard, the use-of-force continuum can create a number of problems when used as a defense in court, because continuum policies have created misunderstandings that affect how a jury will judge the use of force. Chief among these is the “one-plus theory,” which means that an officer must use the next step in the continuum to respond to the force currently being presented—in other words, the officer can’t escalate to a level of force more than one step higher than the suspect is using.

Milwaukee police defense and trial attorney, Gregg J. Gunta, says that “a recurring problem with continuums is that once the plaintiff’s lawyer introduces a ladder- or staircase-type escalation of force continuum, jurors often look at it and think officers must enter the ladder or staircase at the bottom.”

Gunta explains that it is important to get the jury to understand “that officers are not required by law to move from the bottom to the top of the ladder, staircase, circle, and matrix.”

He notes that if the use-of-force continuum is the basis for the defense, “It is often hard to get lay people to understand that police officers can enter at any level, based upon the totality of the circumstances facing them.”

Juries also often believe that an officer has a duty to retreat, that officers must see a weapon prior to using force, that officers must be attacked before they use force, that courts have banned particular tactics and weapons, and that courts and juries can make a determination later as to whether or not  force was reasonable. These assumptions are incorrect. The Court clearly stated in Graham that the Fourth Amendment use of force is determined by what was known and happened at the very moment the force was used, not what was discovered later.

A growing number of attorneys see this as the more logical basis for defense of use of force. For all of these reasons, the underlying theory in amendment-based training is that use-of-force continuums should not be the default policy. Instead, officers should use the objective reasonableness standard set out in Graham.

Organizations such as the Americans for Effective Law Enforcement, Inc. (AELE), and the Institute for the Prevention of In-Custody Deaths, Inc. (IPICD), have pioneered amendment-based use-of-force training.

AELE, which was formed in 1966, is an educational organization that produces and disseminates legal information through traditional seminars, electronic media, and direct contact. IPICD was founded in 2005 with the sole purpose of educating interested parties about arrest-related deaths. Both of these nonprofit groups have been involved in law enforcement training and legal research for many years. Though the movement to replace use-of-force continuum training with amendment-based programs has been slow, it is gaining momentum among training organizations.

Police departments are slowly starting to change their views as well. They are reevaluating their need for continuums, and some are moving away from them in their policies and training.

FLETC stopped using its color-coded continuum charts and graphs in 2005. Since that time, the training center has based its force policy and programs on Graham. Florida and Wyoming law enforcement training academies have eliminated continuums, as has the San Jose Police Department, one of the most progressive and training-oriented law enforcement agencies in the country. The FBI has also encouraged the elimination of force continuums from police policies.

The private sector should make a similar shift with regard to use-of-force policies, training, and legal defenses. Already, since the Graham decision was handed down, many states have passed reasonableness statutes that adopt the language of the court precedent and extend its application beyond police. In Nevada, for example, security officers have the authority to detain individuals “in a reasonable manner, for a reasonable length of time” in cases of gaming violations and shoplifting. Connecticut has specific statutes that address the use of force by private citizens, including security personnel, and these statutes clearly and consistently use reasonableness as the standard for acceptable use of force.

Citizen Sentries
Security providers or internal security departments must always keep in mind that their officers are ordinary citizens (unless they happen also to be sworn police officers). This fact has implications both in terms of what laws apply to them and in terms of how their actions will be viewed by the courts.

Though security officers occupy a pseudo law enforcement position, they have few of the protections afforded the police, such as qualified immunity, in the performance of their security duties, which can involve detention, arrest, and the use of force. Security officers may make a citizen’s arrest, an arrest by statute, or a detention by statute, depending on state law.

Security officers are in a difficult position. While they are typically viewed by the courts not as members of law enforcement but as private citizens, if they use force, the courts may hold them to the same reasonableness standard as they hold police. Thus, companies may simply want to remove force as an option. Where that is not considered appropriate, they should make sure to train to the reasonableness standard, not the force continuum standard.

This should also be true for how incidents are reported. When security officers write up reports, they are sometimes taught to explain their actions in terms of the police force continuum. A security officer’s report will often say, “I used the minimal (or just enough) force necessary to effect the arrest.”

The problem with this language is that there is no legal standard that references the use of minimal force. The legal precedent refers only to the use of reasonable force, as already discussed.

An organization can also get into legal trouble if it gives officers inappropriate guidance with regard to when detention and arrest are appropriate. For example, I have seen companies incorporate security officer protocol verbiage such as: “a person can be handcuffed for: a misdemeanor committed in the security officer’s presence; probable cause for a felony; probable cause for shoplifting; and when the security officer feels a person may be a danger or threat to the officer or another person.” The first three examples are usually fine. However, the last one has no basis in the law and can be viewed as false arrest and detention.

Security should be aware that standards for arrest are different from standards for use of force. Any force used by a security officer to arrest or detain a subject based on the officer’s feeling that the person may be a threat is often claimed to be excessive because there is no authority for the arrest or detention.

The bottom line is that all companies employing security officers—whether contract or in-house and whatever the industry—need to train those officers on the standard of reasonableness in the use of force as set out in the Graham decision and on state-mandated arrest and detention laws.

Graham clearly outlines what can be a simplified policy: Reasonable force is based on the totality of the circumstances at the time the force was used. This is short and to the point, and it will make it easier to teach officers about force and easier to investigate force deployment.

Tommy J. Burns, CPP, owns Burns & Associates, Inc., a security and police consulting firm. He also consults as the privacy officer for the Southern Nevada Counterterrorism Center. Burns was previously employed as security director for several hotel casinos in Las Vegas and worked in law enforcement for 25 years, retiring in 1999 as chief of police for the Henderson (Nevada) Police Department. Burns is a lead faculty instructor in criminal justice and security for the University of Phoenix. He is a member of the ASIS International Gaming and Wagering Protection Council.