Examining the Sheriff’s ‘use of force’ policy

August 13, 2018 by Fred Allebach

This essay will consider the inter-relation of Sheriff’s Office Policy 300, Use of Force, and how in certain situations, a lawful order by a law enforcement officer can lead to the unnecessary use of force. Only low-level, non-violent situations are proposed here, where the lawful order may escalate into use of force in an out-of-proportion way.

For example, in the Sandra Bland traffic stop case in Texas, an officer ordered Ms. Bland to put out a cigarette, which she had the right to smoke inside her car. The situation then escalated terribly, all for failing to signal a lane change. The trouble here, and in many other situations, is that a lawful order is seen by officers as a “legitimate law enforcement purpose”, and if such a purpose is disputed or resisted by a citizen, then use of force and later imprisonment is justified.

Policy 300 has a number of definitions about compliance, yielding to authority, and resistance. However, a lawful order is not defined in the policy. What is a lawful order? A lawful order is a command by a law enforcement officer. As demonstrated by the Bland case, what constitutes a lawful order can be arbitrary, vague, misunderstood, and violate citizen’s rights.  

Policy 300 states, “deputies shall use only that force which is objectively reasonable, given the facts and circumstances known at the time of the event to effectively bring an incident under control.” Failing to obey a lawful order, which is a “legitimate law enforcement purpose”, can thus easily lead to an officer-justifed use of force out of proportion to the actual incident. A lawful order can be used as a precursor to escalate into use of force.

Reasonable force or force in proportion to the incident is not specifically defined in the policy. However, the policy later says that If unreasonable force, (“clearly beyond that which is objectively reasonable”), is used by a deputy, other deputies then have a “duty to intercede.”

Defining “objectively reasonable” becomes critical. Use of force and lawful order policy both need to balance interests, law enforcement authority and citizen’s rights, but the definitions center on a vague weasel word phrase: “objectively reasonable.” In any policy, facts, objectivity and reasonableness are always disputed. Clearly, many incidents that lead to death and violence are not objectively reasonable.

No force is “the professional command presence or de-escalation skills used by deputies to control an incident and gain the voluntary compliance of a subject in any given situation.” No force and no law enforcement escalation is what the public should ideally expect of all officers in any low-level incident.

The policy goes on to state that “while the ultimate objective of every law enforcement encounter is to avoid or minimize injury, nothing in this policy requires a deputy to retreat or be exposed to possible physical injury before applying reasonable force.” I would have to disagree here and say that the ultimate goal of law enforcement is the fair and impartial application of the law.

In this regard, use of force and trumping up lawful orders, is disproportionally implemented against people of color, the Andy Lopez case is a local example among many. It is not objectively reasonable to stop and then incarcerate so many people of color in the US, many times just for driving or walking around. Use of force here does not appear to be fair and impartial. The challenge for law enforcement is to foster cultural awareness among officers, and to train about racial profiling and inaccurate stereotypes.

This essay focuses on non-violent incidents where the use of force comes about simply because of ensuing disputes revolving around a lawful order by an officer, i.e. where the law enforcement purpose switches from the non-violent infraction or suspected infraction, to a conflict based on non-compliance with a lawful order. This is where people end up shot and killed for a small incident.

In any normal human communications scenario, if one person orders another versus asking, and the other doesn’t feel the order is justified, conflict will result. This is where many out of proportion use of force incidents start, because of heated reaction by a member of the public coupled with inadequate officer cultural awareness and de-escalation skills.

One trouble I see in the current use of force policy is that serious situations do not appear to be distinguished from run-of-the-mill, low-level situations.

My suggestion, give lawful orders better, explain the order to the party in question, try to avoid a lawful order downward spiral, find ways to work that don’t escalate to out of proportion uses of force. Get rid of the yelling and poor tone of voice, use other skills to gain compliance and de-escalate poor citizen behavior, rather than get into the lawful order/ use of force tailspin with someone dead for no left turn signal.

At a recent IOLERO (Independent Office of Law Enforcement Review and Outreach) hearing on Sheriff’s use of force policy, the advisory committee took care to be respectful and understanding of the law enforcement side of the story. This is important, to be heard by the Sheriff’s Office, the public can’t pin all blame on deputies.

To conclude, Sheriff’s Office use of force policy should be changed to include the potential negative role of lawful orders, a sense of proportion to the incident involved, and also include training, education, cultural awareness, to not assume things because of looks only.