The set of recommendations adopted by Tampa Police Chief Brian Dugan last week include one that directs the agency to “update use of force policy to clearly articulate appropriate responsive force.”
This forthcoming change to the Tampa police use-of-force policy is an opportunity that should be welcome by members of the public who favor clear parameters in policy governing the use of force by police officers. In the wake of George Floyd’s murder this summer, a national survey administered jointly by the Associated Press and the NORC Center for Public Affairs Research showed that 86 percent of the public nationwide want “clear standards for the use of force by police officers.”
Unfortunately, over the last 15 years, the biggest change to police use-of-force policies nationwide has been the movement away from policies that provide clear standards surrounding the use of force and toward a model with dangerously ambiguous standards.
In Florida, the clear standards that were eliminated in recent years by FDLE and about half of Florida police agencies (including Tampa’s) were reflected in the Florida Matrix — an example of what is broadly referred to in policing as the “traditional linear continuum.” What agencies have adopted to replace their continuum policies is a model wherein officers are merely directed to “be objectively reasonable.”
Linear-continuum policies deserve greater public support over “be objectively reasonable” policies because they provide clearer guidance and direction for how officers should use force when it becomes necessary. Linear-continuum policies give meaning and substance to the vague constitutional standard that force must be “reasonable.” They provide a formula for conveying to officers what level of force is appropriate in what circumstances.
The linear-continuum formula highlights the need to consider the “totality of the circumstances” surrounding an incident and starts with a priority consideration, an “anchor.” That “anchor” is the level of subject resistance and the selection of this particular anchor is consistent with the major use-of-force Supreme Court decision, Graham v. Connor (1989), which directed that priority consideration be given to what the subject is doing to resist the officer.
In continuum policies, the levels of subject resistance (e.g., passive resistance, active resistance) are linked to the levels and types of force that police are authorized to use in response to that resistance (e.g., pepper spray, impact weapon, Taser). Continuum policies direct officers that, in general, “X level of resistance from the subject will be met with Y level/type of force by police.” The continuum policies allow officers to deviate from the proposed “level/type of police force,” but only if the officers can articulate a rationale. An officer might, for instance, legitimately argue that more force was needed than specified in the continuum because of certain officer, subject, and/or incident characteristics.
The policies that have replaced the continuum models in recent years, including regrettably within the Tampa Police Department, merely direct a police officer to “be objectively reasonable.” These policies list all of the factors that officers can consider (for example, levels of subject resistance; officer, subject, and incident characteristics), but provide no guidance on how to evaluate and weigh the various factors.
Clearly, there is nothing “objective” about the “be reasonable” standard; these policies allow officers to sort and prioritize the factors with no formula and little direction. The lack of guidance provides officers with much more discretion — too much discretion — than continuum policies to decide how much force to use to apprehend a suspect and effectuate an arrest. This discretion and lack of guidance limits the ability of agencies to hold officers accountable and limits the ability of the community to hold agencies to account for the force used by police in controversial incidents. Leaders in agencies with these policies may regret the vagueness of an order that directs officers to just “be reasonable” when the next controversial incident occurs.
The inclusion of a linear continuum in police-use-of-force policies was one of the recommendations of the 8Can’tWait campaign. This effort, which is a project of Campaign Zero, conveys to police leaders across the country what concerned members of the public want and expect from their agencies. To his credit, Chief Dugan had already committed to a number of these 8Can’tWait recommendations and I hope his revised policy that will “clearly articulate” appropriate force will provide his Tampa police officers with a formula that conveys what he — and the members of the public that his officers serve — agree is “reasonable force.”
Lorie Fridell, professor of criminology at the University of South Florida, has written/edited three books and 14 articles and chapters on police use of force. In 2011, she published in The Police Chief, “Taking the Strawman to the Ground: Arguments in Support of the Linear Use-of-Force Continuum.”