Force Police and Other Protectors

¶ … Force

Police and other protectors of society are in a precarious position of being responsible to protect society, at the cost of utilizing violence to do so. Violence, may in fact be a strong word, the preferred phrase is use of force, a phrase which denotes that the use of such force is reasonable and necessary in some moral sense. In Organization for Security and Co-operation in Europe (OSCE) Guidebook on Democratic Policing the dilemma of the intense pressure that police face in protecting the public, under the dichotomy of following "all laws, constitutions, criminal codes, police acts, and International and national (and human rights) standards in the process," is made absolutely clear. (2006, p.17)

Many argue, without a full knowledge of the potential for grey areas within the potentially exponential body of scenarios, that the use of force should only be exhibited if there is a clear sense that there is imminent danger to the life of the police officer or innocent victims of a crime in progress. In other words, if the individual is brandishing a weapon, including but not limited to a gun, a knife, a potentially lethal blunt object or even a car and has been asked and refuses to relinquish this potential weapon, then an officer is justified in his or her use of force, even to a lethal degree to subdue the imminent threat of harm to self or others. This work will argue that indeed, the above does justify the use of force, but that this is not the only justification, as within police work there are many gray areas. The work will argue that the adoption of a policy of only allowing the use of force when there is a perceived threat of injury to an innocent is to simplistic a model for the many gray areas that are involved in police work, first by discussing scenarios of apprehension and then by discussing the issue of interrogation and lastly by developing, from the literature a better sense of the existing rules, regulations and laws pertaining to the use of force and their moral ground. To demonstrate the principles of the most convincing justifications for the use of force by police officers, this work has demonstrated the difficulty of the question, proposed several conflicts, and resulted in a document that reiterates certain principles while denying others. The use of force, is most justifiable in a clear situation of direct threat of harm to the police, and/or an innocent. The use of force is justifiable to gain evidence, only in the case where doing so will not elicit extreme harm or potential harm upon the individual. The use of force is not however permissible if there is no imminent harm, as perceived by the officer or if such force is extreme in nature, such as in the case of torture, in the apprehension, interrogation or detention of suspects or criminals.

Grey Areas:

The above scenario, is that which a novice sees as the most likely scenario for the justification of the use of force. Yet, this is simply one example which can be dissected to a myriad of gray eras that often face officers in the field. What if the weapon is concealed, by the individual or even simply suspected to be a lethal weapon by the officer, in a moment of assumed danger and fast movement, but is in fact not a weapon at all? What if the individual is reaching for said weapon to relinquish it and the officer perceives that they are doing so to use it? What if the distance from the suspect is so great that the officer cannot confirm that the item in question is a weapon but if it is still within lethal striking range of the officer or another innocent bystander? All these gray area scenarios are played out almost daily, and officers must be capable of making split second decisions to save their life or the lives of others.

Additionally, what if the officer has just given chase or comes upon the scene alone, with no one to corroborate his or her perception of the scenario and his or her moral decision to use force against the suspect? The officer may have his or her adrenaline pumping, as a result of the difficulty he or she has faced in attempting to apprehend the suspect. It may be dark, as many violent crimes and chases occur at night and outdoors with backup minutes away. The officer may even have an extreme emotional desire to apprehend the suspect, even if he or she does not perceive that the suspect is an eminent threat to anyone. Lastly, what if the victim of the crime, for which the individual is a suspect is a friend or relative of the officer now facing him or her in a potentially lethal situation, or the reverse, what if the individual suspect is a sworn and known personal enemy of the officer? (two frequent fictional scenarios that actually play out on occasion) or, if the apprehension of the suspect will somehow benefit the officer personally or professionally. Again in the OSCE Guidebook, rule 24,

Police officers must not allow their private interests to interfere with their public position, as it is their responsibility to avoid such conflicts of interest. They must never take advantage of their position for their private interest or that of their families, close relatives, friends and persons or organizations with whom they have or have had a relation.

Lastly, some crimes are of a particularly heinous nature and in and of themselves, to a great degree they elicit very personal and emotional responses, from professional officers, who often see and deal with their consequences on a very intimate level. Such crimes create in officers, by the virtue of their own humanity an extreme desire to see that justice is served, and for many incremental split seconds or minutes such "justice" can be in the officer's ability to elicit. It is then left to the officer to follow the codes and conduct of their profession and allow the judicial system to serve its intended purpose, even in the face of insurmountable odds in some cases.

In Kleinig's the Ethics of Policing there is a clear sense that precedence has been set for the development of limitations with regard to the use of force, and yet it also states that in the seminal U.S. Supreme Court case on the use of lethal force, Tennessee vs. Garner, "the Court's language seems to allow that deadly force may be used to apprehend a person who posed a threat while committing the offence, but no longer appears to do so." He goes on to say that, "I guess the presumption is that a person who was prepared to use force on a particular occasion will be prepared to use it on some future occasion, and so must be apprehended immediately. It is not clear to me that this claim is empirically justified." (1996, p. 116) Once again there is the development of a yet another grey area, and as Kleinig points out is it often left to the state, local, or department to further define and regulate use of force allowances and standards. In the above cases, and many variations of them the officer is faced with the "Dirty Harry Problem," as discussed by Klokar, a perceptual conundrum, where he or she believes that almost any means justify the end, i.e. The apprehension of a suspect, before his or her guilt has even been determined.

Klokar in the article Dirty Harry Problem, discusses the issue in terms of the means to an end and reiterates that police officers are frequently placed in a position where the end to a problem is morally good, and yet the manner in which these ends are achieved is frequently "dirty, " and I would also argue grey. According to Klokar, "dirty" is defined as both, "repugnant" in that it offends widely shared standards of human decency and dignity and "dangerous" in that it breaks commonly shared and supported norms, rules or laws for conduct." (36)

In other words if it were anyone but a police officer the use of force would be considered criminal, and in some cases even is with regard to an officer. See, section 74 in the Organization for Security and Co-operation in Europe (OSCE) Guidebook on Democratic Policing: "The disproportionate use of force has to be qualified as a criminal offence. Instances of the use of force must therefore be investigated to determine whether they met the strict guidelines." (2006, p. 30) in the above document there are also clear distinguishing features of the acceptable "legal" use of force, i.e.as justifiable by the fact that its use does not violate any laws or regulations, and that it can stand the test of transparency or will be regarded as illegal. Yet as Buker, points out in his review of three seminal new books on the use of police force, changes need to be continually made in training, particualry to offer officers options for alternatives to use of force, a clear definition of reasonable needs to become more universal and methods for collecting data about use of force cases need to be expanded beyond the standard officer report to understand the scenario of the event that culminated into a use of force. One of the authors in the review, in fact details a reporting system that effectively makes the use of force scene an investigated crime scene, where forensic and other evidence, physical and testimonial, is collected to develop a clear understanding of the events as they unfolded. (2005) Some would argue that this sort of method smacks of the police policing the police, and yet the OSCE Guidebook and many experts would argue that this sort of transparency is necessary for public trust and the insurance of reduced opportunity for corruption at every level. (2006) This emphasis on transparency is relatively new to policing, but in my opinion is demonstrative of positive social change and the eventual development of a much clearer sense on the part of the police, their governing agencies and the public of the nature and definitions of justifiable.

Suspect Coercion by Force or Threat of Force:

Klokar's article the Dirty Harry Problem demonstrates that police officers are frequently if not always placed in an impossible catch twenty two, where if they elicit results, say by seeking a coerced confession or using force when it is not defined as warranted, when they are "sure" of the individual's guilt such results might solve a problem, such as saving an innocent victim, (Klokar 1980, pp.34-36) but in my opinion they do not justify the violent coercion of a confession and are not "legal" or "moral" regardless of the end which is sought.

In an example, more closely associated with this idea and a real life situation, rather than the development of a scenario of fiction, is a European policy on forced DNA testing.

The most drastic solution is that of forced testing. In the law of England and Wales 62 a distinction is made between intimate and other body samples. A non-intimate sample can, under appropriate circumstances, be taken without consent. 63 an accused cannot be forced to donate an intimate body sample such as a sample of body fluid. 64 Under Part IV of the Criminal Justice and Public Order Bill, some DNA-yielding samples, including cheekscrapings, are to be reclassified as non-intimate. Until 1 September 1994, when the new law entered into force, it was not allowed in the Netherlands to obtain a sample by force. 65 Body samples for DNA testing could only be taken if the suspect agreed to it or, if requested so, in order to prove his/her innocence. 66 the new law legalizes both mandatory DNA testing and the taking of samples (by force if necessary) for DNA profiles. 67 This is similar to fingerprint evidence where both countries permit the use of force, if necessary. (Fennell, Harding, Jrg, & Swart, 1995, p. 275)

In this scenario, one can clearly see the development of the "Dirty Harry Problem" as the individual (suspect) can be forced to offer a cheek swab, through forced physical means to satisfy the need for such evidence, and confirm or deny his or her guilt. In other words an officer/detective/forensic examiner is placed in a position where he or she can be aided in solving a crime, (in this case it is likely a physical crime against another individual, such as battery, assault, rape, murder, or even an act of terrorism as these are the types of crime scenes that are most likely to elicit unknown DNA profiles) if he or she is able to forcefully elicit a DNA sample from the suspected perpetrator, even if that suspect is an innocent person. In some schools of ethics, this end justifies the means as solving the crime is paramount to maintaining the civil and personal rights of an individual suspect to protect his or her body from harm. This argument can be justified in that only limited harm can be done by forcing an individual to submit a DNA sample, through a cheek swab, the most fundamental of which are physical restraint, which could be seen as false imprisonment if the individual is deemed innocent or possibly minimal lacerations produced by forcing the suspect's mouth open to perform the swab. Though most, inclusing me would assume that is a suspect is innocent, and has little fear of DNA science falsely implicating them, which most people do in this day and age, there should be little or no resistance, unless the individual is not in a "normal" state of mind and therefore those who resist would be more likely to be guilty of something than not. In this scenario, good can be done, i.e. The solving of a violent crime, but there is no imminent harm from the suspect, in custody, i.e. his or her current physical state is not likely to be one that could harm anyone present and therefore by some standards this use of force is not justifiable. I argue that this is an assumption in error, as the use of force to eliciting this relatively minor personal injustice can be crucial to the solving of very serious crimes and this justifies the use of force to do it. This is regardless of arguments that hold a hard line about the use of force only being allowed in cases where direct protection from harm is evident, as the controlled environment offered the sample giver will likely protect him or her from any serious injury or harm as a result of the sample gathering.

The above use of force to collect evidence does not however compare to forced coercion, by means of violence or threat of violence, often labeled torture. There is an extreme contrary argument against forced coercion in nearly every document associated with law enforcement including but not limited to, (Carty 2006) (COECM 2002) (Winright 1996) (Klockars 1980) (Neyroud & Beckley 2001) (Fennell, Harding, Jrg, & Swart, 1995) (Kleinig 1996). According to the Recommendation Rec (2001)10 on the European Code of Police Ethics: "The police shall not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances. (COECM 2002 n.p.)

For the purposes of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such a purpose as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners....Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment. (Evans & Morgan, 1998, p. 77)

These circumstances include but are not limited to their most common scenarios, the infliction of psychological or bodily harm, or threat of bodily or psychological harm to the self or at a future time to another individual, to elicit information and/or confessions from detained individuals. Though many people in the modern world, would like to think that torture is not a problem, in the developed nations, any longer recent public outcry regarding the Abu Ghraib, where Marines knowingly inflicted and then recorded through photography incidents of torture on Iraqi prisoners, as well as U.S. CIA and other scandals, and the ongoing concerns about international detainment of war criminals and their alleged and real torture and treatment, should make the individual in denial grossly aware that such incidents are still occurring. Most importantly that torture incidents are not simply occurring in nations, or being conducted by nations where these tactics have always been tolerated, but in some of the core nations that have pledged repeatedly to eradicate them. (Evans & Morgan, 1998)

Conclusions:

To demonstrate the principles of the most convincing justifications for the use of force by police officers, this work has demonstrated the difficulty of the question, proposed several conflicts, and resulted in a document that reiterates certain principles while denying others. The use of force, is most justifiable in a clear situation of direct threat of harm to the police, and/or an innocent. The use of force is justifiable to gain evidence, only in the case where doing so will not elicit extreme harm or potential harm upon the individual. The use of force is not however permissible if there is no imminent harm, as perceived by the officer or if such force is extreme in nature, such as in the case of torture, in the apprehension, interrogation or detention of suspects or criminals.