De-escalation and the Use of Force
Articulating Reasonable, Necessary and Proportional
Lt. Eric Pisconski (Ret) / Seattle Police Department
Tac-D Solutions – Founder
What exactly is de-escalation?
The term de-escalation does not refer to one specific response, tactic, or magical set of words if spoken in a particular order will result in voluntary compliance from any individual. De-escalation more broadly encompasses an overall approach to encounters. It includes the type and manner of responding resources, individual and team tactics, body language and non-verbal cues, the tone, tenor and tempo of a verbal exchange, and the actual words spoken. De-escalation is inclusive of everything that occurs from arrival to resolution of an encounter. De-escalation is not mutually exclusive to an arrest, a lawful use of force, or voluntary compliance from a subject; neither is it an alternative to the use of reasonable, necessary, and proportional force.
De-escalation is a new term to an old approach. Ask a veteran officer if they would rather talk someone into handcuffs or fight them into cuffs. Ask if they have modified their approach over the years of how they engage individuals. De-escalation should still include a strong officer presence, appropriate tactics and approach – to include the implementation of Time, Distance, and Shielding principles, threat assessment and identification, and verbal engagement beyond ask – tell – make. Efforts to employ a tactical de-escalation approach should be taken in all encounters, provided the circumstances make it safe, feasible, and it would not otherwise compromise any law enforcement priorities.
Regardless of experience or execution, implementing de-escalation principles will not resolve 100% of law enforcement interactions ‘peacefully’ – this is not a zero-sum equation. In some situations, efforts at successful de-escalation will not be effective as human beings possess free will and sometimes still act against their own best interests. Conversely, successful de-escalation should not be conflated with zero use of force incidents.
Document, document, document
As a Field Training Officer, and later as a supervisor, I would always encourage officers to remember the number one rule when writing any report. You are not writing the report for yourself just for this shift – you were there, you know what happened. You are writing the report for someone else, that likely has zero law enforcement experience, who might be reading it months or years down the road (or referencing it yourself during a trial) and trying to envision exactly what happened in layman’s terms.
Historically, Use of Force statements were short and to the point; and often lacking detail. During my career those statements morphed from a few sentences or a couple of paragraphs to numerous pages. Did the situations become more complex, or was there an increase of public outcry for procedural justice and police accountability? The public does not know how we do what we do nor why – especially when it comes to the use of force; it is the job of law enforcement to explain it.
I have reviewed 100’s of court cases and legal decisions over the years, occasionally scratching my head as to the rulings, decisions and opinions offered upon resolution. I would grumble how they could come to that conclusion when it was good police work being done out there. Then I would read the officer’s statements, and it would all come together. Sure, periodically the wrong thing was clearly done. More often, the officers did the right thing following law, policy and training, it was just poorly articulated – leaving far too much interpretation of their actions and decision-making.
Documenting a Use of Force encounter
Depending on what source you hear from, which news article or study you read, or the news channel you might be watching the public complaints against law enforcement generally break down into two main categories of Professionalism (to include bias policing or ‘profiling’) and Excessive Force. Incorporating de-escalation strategies can address both of those areas, but we will focus specifically on the use of force in this article.
Arguably all 17,541 law enforcement agencies in the United States[i] have some policy, standard or rule regarding the documentation for use of force incidents by sworn personnel, as rooted in the 4th Amendment. Based upon principles from the Graham v Conner[ii] and Tennessee v Garner[iii] decisions, agencies generally adopted language that includes justification for the application of force – often using terminology such as reasonable and necessary. In recent years, law enforcement agencies have been including proportional in their use of force justifications matrices (this terminology is generally extrapolated from the opinions in Tennessee v Garner). Proportionality is gauged on the totality of circumstances and does not require officers to utilize the least amount of force possible; neither are they required to implement the same level of force response (the obvious example being a subject attacking an officer with a knife; the officer is not expected to defend themself with their own knife as an ‘proportional’ response).
To properly document and justify a lawful use of force, officers must articulate why the force was reasonable, necessary, and proportional. Those statements generally follow the pattern of, “no reasonably effective alternative to the use of force appeared to exist at the time, and the amount and type of force used was both reasonable and proportional to effect the lawful purpose intended.” With the role of law enforcement being reactionary by nature, use of force statements tend to focus on the words, actions, and behaviors of the subject on whom the force was used. While true that an officer’s actions are a direct response to a subject’s actions, focusing solely on that aspect often neglects to articulate all the other actions taken by an officer(s) prior to the application of force.
De-escalation defines necessary
As a profession, it is imperative to articulate why the force we used was justified as necessary. This is where de-escalation comes into play. Once you determine the situation is safe, feasible, and it would not compromise law enforcement priorities, de-escalation principles should be implemented. Or, if the situation does not initially meet the criteria, specifically document how or why. Thorough documentation of de-escalation efforts should be included in every Use of Force statement.
Most agencies that have a policy addressing ‘De-escalation’ usually require it to be attempted prior to any application of force. This could include an individual officer’s use of force, crowd-control tactics or a SWAT standoff. From a policy and compliance standard, a use of force review will generally include a determination if the situation was safe and feasible to attempt de-escalation, was an attempt made – either individually or collectively, and the outcome of de-escalation efforts.
With voluntary compliance being the goal of successful de-escalation and accepting that the desired outcome will not occur in 100% of the incidents, it is incumbent on the officer(s) to articulate the transition point. If you adequately describe the combined de-escalation efforts of officers, the words, actions, and behaviors of the subject, and when the situation transitioned, you have accomplished the goal of defining necessary with regard to the application of force. When De-escalation is no longer safe or feasible, or continuing would compromise law enforcement priorities, then you have demonstrated that no reasonably effective alternative to the use of force appeared to exist at the time; and was thus both reasonable and necessary.
[i] U.S. DoJ Office of Justice Programs Bureau of Justice Statistics. Census of State and Local Law Enforcement Agencies, 2018 – Statistical Tables (https://bjs.ojp.gov/library/publications/census-state-and-local-law-enforcement-agencies-2018-statistical-tables)
[ii] Graham v. Connor, 490 U.S. 386 (1989) – https://supreme.justia.com/cases/federal/us/490/386/#:~:text=Petitioner%20Graham%2C%20a%20diabetic%2C%20asked,States%20Constitution%20and%2042%20U.S.C.
[iii] Tennessee v. Garner, 471 U.S. 1 (1985) – https://supreme.justia.com/cases/federal/us/471/1/#top
