The Policing project is on ALI’s Annual Meeting agenda this year for the first time, specifically, Use of Force.  These principles were prioritized because there is an immediate need for guidance on this issue, and many states and police departments are considering reform to their current use of force policies.

As the project progresses, The ALI Adviser will share several sections of the project, including Black Letter and Comments. The second in this series is Section 5.03 – De-escalation and Force Avoidance.

Black Letter and Comment from Tentative Draft No. 1:

§ 5.03. De-escalation and Force Avoidance

            Agencies should require, through written policy, that officers actively seek to avoid using force by employing techniques such as de-escalation as circumstances permit. Agencies should reinforce this Principle through training and supervision.

Comment:

a. De-escalation and force-avoidance tactics. This Section adopts the view that agencies should require officers to avoid using force if they can do so without endangering themselves or others. In approaching situations in which force might become necessary, agencies can provide officers on the scene with additional information, they can send resources, and they can facilitate communications among officers. Such techniques can provide additional time for officers to assess a situation, reduce the threat an individual poses, and ensure that law enforcement can achieve its permissible and necessary goals. During an encounter, officers should continue to look for opportunities to reduce or avoid further force.

Examples of techniques that can be used to minimize or avoid the use of force include:

* addressing individuals who may be uncooperative or resistant (e.g., because of mental illness, drug or alcohol use, or emotional state) with additional and well-trained resources, such as officers with training relating to disabled or mentally ill individuals, or officers equipped with less-lethal tools;

* taking cover or otherwise placing barriers between an uncooperative subject and an officer;

* moving to a safer position, by increasing distance, cover, or concealment;

* containing the scene in order to reduce the threat to members of the public;

* communicating from a position of relative safety in order to gain compliance;

* using verbal persuasion techniques, advisements, or warnings;

* avoiding physical confrontation, unless immediately necessary;

* avoiding acts and instructions that are likely to lead individuals to present a risk of serious harm to a police officer (e.g., reaching into a car that is running in order to turn it off); and

* interacting sensitively with members of distinctive communities and subpopulations, including racial, ethnic, and religious subpopulations; non-English language speakers; LGBTQ persons; individuals with disabilities; the elderly; and others.

Although officers should seek to minimize the use of force against all individuals, some subpopulations may require special efforts to limit the use of force. For example, officers may require special training to avoid using force against mentally ill individuals who do not immediately follow law-enforcement instructions. In light of recent research regarding implicit biases, indicating that African American men may be perceived as more threatening than their white peers, agencies may also need to consider special efforts to reduce the risk of disproportionate force against African American men. If force is used against some individuals under circumstances in which additional steps would be taken to avoid force against others, then adequate steps to minimize force have not been taken.

Policies, training, and supervision, including performance measures, positive incentives, and discipline, should reinforce use of force-avoidance and de-escalation techniques, and training should be provided to all law-enforcement officers on an ongoing and repeated basis.

Many agencies include such techniques in existing policies. However, other agencies currently do not include force avoidance and de-escalation in their policies, and some affirmatively state that officers have no obligation to use such techniques. Although law- enforcement groups are themselves divided on whether agencies should depart from the constitutional standard, which does not specifically mandate de-escalation and force-avoidance techniques, these Principles endorse the use of tactics to avoid the need to use force, in order to protect the lives of officers and citizens. In general, officers should be routinely equipped with less-lethal tools, and they should be trained to use a range of techniques to defuse situations and avoid the need to use force when it is possible to do so. Complying with this Section does not necessitate detailed written policies laying out every technique that can be used to minimize or avoid force. Rather, much of this Section can and will be implemented through training and supervision.

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Barry Friedman

Reporter, Policing Principles

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at NYU Law.  He is one of the country’s leading authorities on constitutional law, policing, criminal procedure, and the federal courts. He is the author of the critically-acclaimed The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), and the forthcoming book on policing and the Constitution, Unwarranted: Policing without Permission(February 2017). He is the founding director of NYU Law’s Policing Project.

Brandon L. Garrett

Associate Reporter, Policing Principles

Brandon L. Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law. Garrett’s recent research includes studies of DNA exonerations and organizational prosecutions. Two of his recent books include Too Big to Jail: How Prosecutors Compromise with Corporations and Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Christopher Slobogin

Associate Reporter, Policing Principles

Christopher Slobogin is the Milton R. Underwood Chair in Law; Director, Criminal Justice Program; and Affiliate Professor of Psychiatry at Vanderbilt Law School. He has authored more than 100 articles, books and chapters on topics relating to criminal law and procedure, mental health law and evidence, and is one of the five most cited criminal law and procedure professors in the country.  Particularly influential has been his work on the Fourth Amendment and technology and his writing on mental disability and criminal law.

Rachel A. Harmon

Associate Reporter, Policing Principles

Rachel Harmon is the F.D.G Ribble Professor of Law at the University of Virginia School of Law.  She teaches in the areas of criminal law, criminal procedure and civil rights, and her scholarship focuses on policing and its regulation. From 1998 to 2006, Harmon served as a prosecutor at the U.S. Department of Justice. After a brief stint at the U.S. Attorney’s Office in the Eastern District of Virginia, Harmon worked in the Civil Rights Division, Criminal Section, prosecuting hate crimes and official misconduct cases, many of which involved excessive force or sexual abuse by police officers.

Tracey L. Meares

Associate Reporter, Policing Principles

Tracey L. Meares is the Walton Hale Hamilton Professor of Law at Yale Law School. She has worked extensively with the federal government, having served on the Committee on Law and Justice, a National Research Council Standing Committee of the National Academy of Sciences from 2004–2011. Additionally, she has served on two National Research Council Review Committees: one to review research on police policy and practices, which produced the book, Fairness and Effectiveness in Policing: The Evidence and another to review the National Institute of Justice, Strengthening the National Institute of Justice. In November of 2010, she was named by Attorney General Eric Holder to sit on the Department of Justice’s newly-created Science Advisory Board; and in December 2014, President Obama named her as a member of his Task Force on 21st Century Policing.

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