Unfit officers have greater liability in Use of Force situations

The Simpson's Chief Wiggum.  Image credit: FOX

The Simpson’s Chief Wiggum. Image credit: FOX

By Chip DeBlock

I recently penned a controversial article titled “Fat and Out-Of-Shape Cops: The Truth Hurts” that produced a lot of comments. Although controversial, I feel the story was well researched and spot on. My hope is that you’ll find this piece no different.

Every law enforcement officer (LEO) should know what a Use of Force matrix or continuum is. It is essentially a set of guidelines for how LEOs are to use any amount of force, from the least to the greatest. Over the years I have seen a growing trend and the writing on the wall, officers who accelerate (increase) their use of force because they are unfit or out-of-shape can be held legally liable for their actions (and their department as well).

In The Police Chief magazine it was cited that “by implementing an exercise program, agencies also reduce their liability by ensuring that officers are prepared to handle tasks while controlling the possible risks and their associated costs”.1 If you are still in doubt, you won’t be for long. In as early as 1982 a D.C. Metropolitan police officer was accused of using excessive force in order to arrest a subject. In Parker v. District of Columbia “the officer’s lack of physical fitness and inability to use defensive tactics or lesslethal options resulted in his discharging his firearm, rendering the suspect a paraplegic”.1 Although the officer was eventually dropped from the lawsuit, his department “was found to be deliberately indifferent to the physical training needs of its officers, and the plaintiff was awarded a substantial sum of money”.1 In 2001 a Martinez (California) police officer was accused of shooting a subject in the back because he was in too poor of physical condition to pursue him (David Hutton v. City of Martinez2). Even though the officer had surgery after the incident and eventually took a disability retirement, the court forced the release of his medical records and worker’s compensation file. In 2004 the parties agreed to a settlement and the case was dismissed.

As LEOs we’re not trained or expected to meet criminals on a level playing field. If a bad guy wants to fight with you, you’re not required to get into a fist fight with him. Your Use of Force matrix/continuum should afford you being one (1) step ahead of him (i.e. non-lethal, less-than-lethal, impact weapon, etc.). Likewise, if the bad guy has a knife, you should be justified in going straight to your firearm. Of course, if you’re in a heated fight and losing, you can escalate to whatever level is necessary in order to win (including deadly force).

Retired Tampa Police Sergeant and Defensive Tactics expert Jim Diamond III preaches that “Confidence, Competency and Control give the Officer the ability to back away from issues that do not immediately put lives in jeopardy until sufficient assets are in place to predict success”3. Diamond goes on to state that “the inability to recognize potential liability for impetuous action is most definitely dependent on the individual’s physical conditioning, stamina and the ability to deal with stress”3. In Diamond’s 44 year career in law enforcement (both active and reserve) he’s “observed the disastrous effect of Officers not maintaining physical fitness as it relates to their personal health and their ability to perform the job in a manner that ensures the safety of themselves, their fellow officers and the public they have sworn to protect”3. Diamond sums it up best when talking about Conditioning, Confidence and Competency – “one or more is absent in every incident that has plagued our industry as of late”3.

As a certified LEO you are entitled to use reasonable and necessary force to effect an arrest or detention. In LEO circles we joke about rather being arrested by a male than a female officer because females can normally justify the use of deadly force before a male can. This, of course, is because of their diminished size and strength. But what if the officer is escalating his use of force because he is unfit or out-of-shape? Officer “A” (who is in shape) can subdue a subject using defensive tactics or impact weapons while Officer “B” (who is out-of-shape) has to use deadly force. In today’s litigious society, that’s a recipe for disaster.

1 The Police Chief – The Professional Voice of Law Enforcement – June 2008
Fit for Duty? The Need for Physical Fitness Programs for Law Enforcement Officers
By Sgt. Adrienne Quigley
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1516&issue_id=62008

2 David Hutton v. City of Martinez
United States District Court for the Northern District of California
http://www.aele.org/law/2004FPNOV/hutton.html

3 Jim Diamond III, Tampa Police Sergeant Retired – Defensive Tactics Expert – Dan Yudansha, USKA – Director of Operations for the West Central Florida PBA

5 comments

  1. While I understand your article, I don’t think it is entirely complete. I found that while say, a small female (or male) could use the same excuse thaat a out of shape male could use, however! Is there a chance that these officers would screw up? Certainly. However, I always found that officers that were moderately in shape were vastly different than officers who were meat heads. These officers were more likely to be involved in any use of force situation and therefore more likely to be a liability than someone who may know their weaknesses.

  2. James Eric McDonough

    Excellent and well written article!!!

  3. In a perfect world every LEO would be fit and well trained. But the reality is most departments, especially the smaller departments, have little or no money for training and little or no money to pay overtime to cover shifts, when officers are attending training. The reality is, when officers are allowed to attend training, his or her shift works short, which in and of its self is a officer safety issue. Most officers do physical fitness training on their on, which falls below what most police standards boards have set. Mandatory firearms training in my state in annually and the standards are so low its really a joke. With the price of ammunition being what it is, many officers have to make a choice between feeding a family and buying ammunition and training on their on, so many officers are only getting firearms training once a year. In short it equates to this. If communities want better trained and more physically fit officers they are going to have to Ranger up and pay up. The military run on training cycles. One unit is trained up, at or as close to 100% strength as possible and ready to be deployed, while one unit is rearming, refitting, and retraining, while another unit who has just returned from deployment stands down, allows their people to take leave. I am not proposing we do what the military does. I’m merely using this as an example of how our military maintains readiness. The reality is we go to work every day and do the best we can, with what we have to work with and hope we come home alive at the end of our shift. We are human and we all have limits to our professionalism and let our emotions get the best of us at times. We do our best to maintain the standard, but the bar is very high. Many of us have not had any soft hand tactical training since the academy and for some of us that has been awhile. Because most of our agencies do not have the man power to train to the standards the national police publications suggest we do, or retired larger department’s full time training officers suggest, what do we do? Stay home? No we continue to show up day after day, because we are sheep dogs and we all have flocks to protect.
    Signed
    A tired old cop

  4. Good article, Chip. I personally believe we must reinstitute a much higher standard in defensive tactics compitence for all officers. There has been too much reliance on Tasers as the only trick in the bag.

  5. Paradox, the use of “he” and “his” when talking about officers escalating their use of force because they are unfit or out-of-shape is not meant to be gender specific. It’s simply talking about any officer that does that (male or female). You bring up an interesting point, as those words are normally gender-specific pronouns but can also be used with a gender-neutral meaning. Next time I’ll try to use he/she and his/hers. As for your comparison of “moderately in shape” to “meat heads”, I’m not sure which you feel are more likely to be involved in any use of force situation. A “moderately in shape” officer could also be in better shape than a “meat head” who spends his (or her) time pumping iron instead of doing cardio. It’s my experience that “meat heads” were popular in gyms 20 years ago, but today there is a growing awareness that being fit means a combination of weight and cardiovascular training. If a cop is only “moderately in shape” he is putting his life and the lives of those he works with in jeopardy. There has also been a study by the National Criminal Justice Reference Service (NCJ 218090 – published in 2005) showing female LEOs use less force in police-citizen encounters than male LEOs.

    James Eric McDonough, thanks!

    Mac, good points. There are no standards on fitness training, but on fitness testing. I see your point though, officers train at a level too low for them to do well on fitness testing (although they might pass because the testing is too easy). I think it’s easier for larger agencies to put a priority on training (logistics). However, that’s an unfortunate situation because lack of training due to logistics is NOT the officer’s fault. That’s also why agencies are being sued.

    Dennis Purdy, I totally agree and thanks!

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