Controlling Opportunity Appropriately

Many jurisdictions have adopted policies relating to use of force issues. In general, many of these jurisdictions have instituted a “Use of Force Continuum”. The continuum has many uses ranging from a teaching item in classrooms, a guide for force escalation, and to serve as an aid in documenting the actions of the “Threat”.

The purpose of this article is not a full explanation of the force continuum but rather a mention as we transition to the main purpose of this article. In general, jurisdictions have sections within their force continuum policies regarding force justification. In general, for the purpose of deadly force, or other force situations, three elements must be present for the situation to be lawful. While terms vary, the same elements are usually present. The terms used for this article will be Intent, Means and Opportunity-often called the Triad. Having these three elements present,and documenting them in a post incident report, will aid in the defense of the actions taken by individuals. However, let’s take this a little further down a dark road… Is it possible to have all three elements of the triad present, and still have the situation go bad for the individual officer? The answer is yes. Jurisdictions must teach officers to use discretion in dealing with force situations.

 

In reviewing post situation documentation in preparing for legal defense, I often ask myself did it need to happen this way? Surviving criminal prosecution is not enough anymore. Individuals must look at surviving post incident civil litigation. For the purpose of this article, let’s provide some basic definitions.

Intent:
The “threat” has expressed some form of their intent to harm you or a third party. This is done either by verbal or physical actions. The typical “I’m going to beat the hell out of you” will serve as an example.

Means:
Does the threat have the means to carry out the intent? Means can be just about anything from physical ability, availability of a deadly or dangerous weapon.

Opportunity:
Does the threat have the opportunity to carry out their intent? For example, you are on the ground level with the threat holding a knife in hand on the third floor balcony, telling you that he is going to stab you. The threat on the third floor balcony does not have the opportunity. Given the same intent and means,but now the person is on the ground level with you, moving towards you changes the situation one hundred percent.

Now we move into the main purpose of this article, teaching individuals to control opportunity appropriately. Failing to control opportunity appropriately is the new vein of gold for civil litigation.

Controlling opportunity varies depending on the “totality of the situation”. In some instances, the situation or threat controls the opportunity. But this concept can be used in most forms of public safety. Here is the million-dollar question:

Did the officer need to place him/herself in that situation, meaning the instance of opportunity? Here is an example: An officer stops a vehicle for a traffic violation. During the stop, further criminal activity is found. Contrary to most department’s policies, the officer attempts to reach into the vehicle and take the car keys out of the ignition preventing the suspect from leaving. The suspect leaves with the officer hanging onto or out of the vehicle. This now becomes a deadly force situation. How will this situation play out in potential criminal proceedings or litigation proceedings?

Another example: In a correctional environment, an inmate is alone in a cell making threats towards a lone corrections officer. The inmate tells the officer that he will “kick his ass” and “if he were a real man, would open the door and go at it”. For the sake of this article, let’s say the officer does open the door to attempt to restrain the disruptive inmate, and a fight ensues. While other officers come to the aid of the officer involved in the fight, the inmate gets hurt or potentially dies during the struggle. What are the causal factors for this situation and did it need to happen? The actions of the correctional officer introduced opportunity. Could the officer have summoned more help or even used other forms of equipment to control the inmate? Did this person need to open the door?

Another example: An active shooter is in a public place; let us say a school full of children. Responding officers do not have time to wait for a SWAT team and must immediately enter the area to locate and stop the shooter. Their decision to enter and engage the threat, introduces opportunity. How will this play out in legal proceedings? How does this differ from the other two examples? In this case, the actions of the threat controlled the opportunity.

Another concept to be considered when talking about controlling opportunity is disengagement. Could the officer who finds herself in harms way leave the situation and change the factors later? Here is an example: A lone officer stops a vehicle for a minor traffic violation. The stop occurs in a rural area. Four men step out of the vehicle and two are armed with baseball bats. They tell the lone officer that she best forget about the stop and leave for her own good… Well let’s see, do we have a potential shooting situation? The answer is yes. Now the officer must ask the question of himself, is this worth it? Is this stop worth the risk of someone dying? Alternatively, can the officer disengage and leave? Now do not think that we are going to let the gang of four wayward baseball players get away with this criminal behavior. Could the same officer stop the vehicle again, at a later time under different conditions and take the threats into custody under better circumstances? Which has a potentially more desirable outcome?

We have reviewed force continuums, concepts and examples. Let us now move into the arena of court.

The actions of the officer will be direct evidence when court convenes. Being able to explain the circumstances and provide justification as to why the officer responded in such a manner,will create a more defendable position. Personalizing the situation in terms that a juror can easily grasp is essential. Articulating all the personal sensing elements will allow a juror to place himself in the situation encountered by the officer. Such a tactic in testimony allows for the natural understanding of why the officer responded and how the situation unfolded. Explaining the elements will project the sensation experienced by the officer and may aid in a favorable verdict.

In conclusion, understanding and learning to control opportunity may result in different outcomes. These outcomes may include preventing the need for force to be used, potential criminal prosecution of the officer and injury to the suspect. An additional outcome is reducing risk of liability and preventing a predictable and potentially foreseeable risk.

About the author:
Ronald Bishop has 22 years experience with a Sheriff’s Office on the West Coast with 9 years at a command level. He is a nationally recognized expert in Police/Corrections Use of Force and has been used to review situations and documentation for civil and criminal proceedings. Ron is also active as an instructor in Force issues and continues to instruct when called upon. Ron lives in Washington State with his wife and two daughters.

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