July 10, 2005… The Watts section of Los Angeles is about to experience another tragic event in a long history of tragic events dating back to the 1960s. The police are going to be involved in a high profile incident after being called to the scene of a deranged gunman, high on cocaine who is holding his nineteen month old daughter Suzie Marie hostage. When the proverbial smoke clears, it will become, as it often does a national media event. There will be analysis followed by more analysis; everything from sound-bite teaser nightly news to partially constructed ‘first reports’ to long and lasting political commentary that will remain housed on internet servers for years. This case will be discussed in academies, studied in colleges and Universities, debated in pubs and barrooms and presented to a court for both a civil and criminal hearing. Still, there will never be a consensus about what happened, why it happened or how it should have happened differently from the way it actually did. Jose Raul Pena is no typical father and he has created a situation that will challenge the sensibilities of every police officer that will respond to his scene. He is a car dealer and former soldier from El Salvador who on this day has filled himself with liquor and cocaine and is barricaded along with Suzie Marie in his auto dealership. He has just called the mother of his daughter, and after arguing with her on the phone he is threatening to kill himself and Suzy Marie.
The LAPD SWAT team has responded to barricaded subjects many times in the past. They have trained for the routine, the contingencies, and the exigencies. They are tempered by the flames of experience. Satirically one might say, they are “ good at it”.
But when Pena begins firing shots at the officers, hitting one of them and sending the community into a spiraling chaos they do as they were trained…they fire back. Who would guess that Pena would hold Suzy Marie in front of his body as a shield? Who would imagine such moral perversion or could prepare for such cold-blooded callousness? In the end, both Pena and his daughter lie dead, killed by
police bullets and once again the media circus will come to town…
If you go to Google.com and type in “Use of Force Expert”, my name pops up. For a while it was number one, but now it drifts among the first couple pages competing for a ‘high rank’ with other firms and professionals who make a business out of explaining police tactics and techniques to the media, attorneys, human rights, groups, etc.
On July 11, 2005 a reporter with CBS affiliate KFWB Radio Los Angeles did exactly that; he Googled me. He called me for an opinion about this case and asked me to discuss the police tactics used in this incident. Not having all of the facts, as things were still being sorted out, I was at first reluctant to answer. Rather than giving a play-by-play account of this incident, I chose rather to discuss our professional model for using force. Though different from state-to-state, philosophically most models are identical in theory of escalating and de-escalating levels of force.
Laying out the framework of resistance and response I explained the transactions that dictate what is “allowed” under case law and State statute. Using Garner v Tennessee I explained in detail how the use of deadly force is attached to our fourth amendment concerns for ‘reasonableness’. As is common, even for professionals, I got on a diatribe, accusing Pena of being in the words of LA Chief Bratton a “bad man” when the reporter interrupted me saying; “but Pena was holding his daughter in front of him…why did the police shoot?” I paused.
I explained that the shooter was reportedly firing at the police, and in fact had hit one of the officers. The community was under siege with neighbor’s homes and lives being threatened every time Pena pulled the trigger. Those officers needed to stop the threat. “Yes”, he said, “but Pena was holding his
nineteen month old daughter in front of him…is it okay to shoot through her? followed by, “She was shot in the head you know?””…Again, I paused…
Suzy Marie had become from an analytical perspective, a variable, something to consider along with all of the other variables that validate or invalidate use of force decisions. It is the ‘totality of circumstances’ that drive use of force decision making, and it is the variables that often transcend the
simplicity of a force matrix. Suzy Marie was a mitigating factor to a clear cut case of deadly force.
Police officers are not computers, but at times they operate like them. They must constantly compute new data and figure out how the data interfaces against their internal algorithms. Like in a computer, these algorithms are codes, strings of ‘if/then’ scripting that set into motion a variety of reactions that determine an outcome. Officers count on these algorithms to be flexible enough to work in any given situation. But what happens when a nineteen month old baby, held as a shield is suddenly presented as a new data set?
To understand why officers do what they do, we have to understand the power of training; how it creates these algorithms in the minds of new and advanced police and corrections personnel.
The force continuum was an early attempt to create a mental algorithm for police officers in the 1980s. A basic ‘if/then’ formula that simplified the thinking process to a set of standard variables became the basis for use of force instruction nationally and even globally. Borrowed from an earlier military model which suggested certain rules of engagement as appropriate responses to
perceived threats, the force continuum found a quick following in civilian applications by a profession struggling to describe ‘reasonableness’.
After the landmark Supreme Court case of Graham v Connor, experts who were aware of this military model, shaped and redefined it conceptually by matching perceived threats in the field to appropriate force responses in order to satisfy the requirement of “objective reasonableness” expressly stated by the Court. It is important to understand that the continuum was a construction of the executive branch of government; it was not gleaned from any particular judicial requirement and was certainly not a legislative mandate. It happened from the inside. It was our thing, but it was soon to become much bigger.
With so many different hands and minds working on the development of the original continuum of force for civilian enforcement, it is impossible to know the exact purpose of its original design. Was it intended as a training tool, to express what is reasonable to entry-level and in-service personnel? Was it a chart for attorneys to draw articulated defenses for officers who are brought up on excessive force claims? Was it a policy item for agencies to express the dos and dont’s of force? Or was it meant to be all these things, as it has become? Where we can’t be sure of its exact purpose, what we can be sure of is its current use. We know that the continuum is many different things to many different people, often with competing interests. The continuum has become a part of the police culture, cited in legal documents, academic textbooks and training curriculum. And though an invention having no legal basis, it is now firmly entrenched in the American consciousness to the degree that many agencies nearly consider it law.
In 2008, the State of Florida opted to get rid of the force matrix as a training tool. This was no willy-nilly decision, no; it was debated for mind-numbing hours by the FDLE Curriculum Staff, a variety of subject matter experts from throughout the State, FDLE attorneys and the Commission. What started as a lightning rod for controversy, grew in consensus until finally, it was done, and Florida emerged ‘matrix free’.
To understand what happened and why it happened requires that you first step back and take a fresh look at our matrix, to realize what it actually says; what is there in black and white. Forget about all of the added descriptions levied upon it by trainers attempting to make it work, look at it in its raw and unadulterated design; a working model of force, with six recommended responses to six perceived levels of resistance.
Upon closer inspection of these categories what we see is a reflection of 1950’s style policing, the exact era that the continuum was designed to combat. For example, Consider this fictitious dialog from Sterner v. Hillsborough, a case in which a quadriplegic was dumped from his wheelchair onto the floor of the Hillsborough County Jail booking room by a Correctional officer. Though this case hasn’t played out yet and in fact may never be filed it reminds us of how troublesome our Matrix is.
Use of force expert: “I wasn’t shocked when on January 29th, 2008 Mr. Sterner, a quadriplegic was dumped from his wheelchair onto the floor by Hillsborough County Correctional officers after he refused to stand. It was shocking of course to the layman who doesn’t understand the complexities of our force matrix. But to a trained professional,(holding up the Florida Force Matrix) a look at level three passive resistance, which Mr. Sterner was clearly offering, this resistance was simply being countered by an effective ‘take-down’, a level three response, and completely within the recommended standards of this profession.”
Experts and attorney’s look at things this way, and why shouldn’t they? They have been instructed in the rules of engagement by the very occupation that now falls prey to its own standards. It is true that a Matrix, drafted to be more concrete, creates concrete thinking. It removes critical thinking from the equation and creates a new battleground in which we find it impossible sometimes to side with ourselves. It is not shocking to me that officers Taser eight year-olds or that police beat resistors with batons as they struggle to get away. Eight year-olds are perfectly capable of exhibiting aggressive behavior, and hitting people with batons for merely running away is a perfectly acceptable level four response to a level four resistance. It’s all there in the Matrix, it’s more than ok, it’s recommended.
Uncle!….Knowing when to quit
Some argue that to get rid of the Matrix you abandon the model for knowing equitable responses to resistance. In a
model I like to call the “sandlot mentality”, it becomes apparent that there is something germane to our thinking that causes us to remain equitable in force exchanges, without the benefit of instruction. There is significant compelling evidence to show that members of any given species are hardwired to not cause major or deadly injuries to other members of the same species. In the past several years the profession has begun to realize that it is far more difficult to teach an officer how to injure or kill, then it is to teach one how not to.
What we know about conflict and combat begins when we are very young. It’s the “sandlot” where most kids learn their life lessons; that place in the neighborhood where all of the other kids gather, unsupervised by adults to learn, explore and grow. It is also the area where they experiment with conflict and conflict resolution, uninhibited and unguided by the wisdom of preclusive adults. Sandlots are a domain, a microcosm where social hierarchy is formed, where children struggle for dominance, respect, and likability. Recall an incident where as a child you found yourself in conflict with another child, say on the playground, or in the sandlot. Thinking back to that episode it is likely that you can recall your first experience with a natural continuum of force. Your fight probably started with name calling (verbal), quickly progressed to pushing or grabbing (empty hands), might have escalated to throwing hands in an attempt to knock down the offender (temporary incapacitation), and might have even involved the use of a weapon, like a baseball, Tonka
truck or stick. Throughout the ordeal, which may have lasted only a couple of seconds, neither you nor your antagonist were seriously injured; and more than likely when someone screamed “uncle” the fight ended. Someone had taken control and the entire event de-escalated. This kind of event is played out every day, throughout the world. It is normal behavior and needs no instruction.
Of course this is an over simplified model of a force matrix, but it serves the point of describing how we are probably spending too much time teaching officers what they intrinsically already know. Humans are gregarious; they don’t enjoy hurting each other. Absent that odd few, the mentally ill sadists who sometimes find their way through the hiring process, for the most part our profession hires and trains extraordinarily decent people who enter the profession with
passion and compassion for others.
The Matrix is a classification tool that attempts to package behaviors and tools into defined categories. To appropriately judge an officer’s use of force requires that we factor in the totality of circumstances. It is the intangibles, like stress, fear and fatigue that significantly influence behavior during the critical moment when force will be used, but these are not accounted for in the Matrix. Our solution?..to add yet another component into the equation which we refer to as Subject/Officer factors. Confused yet?
For instance, an officer addressing level four resistance, after a six block foot chase in the Florida heat, while wearing a ballistic vest and a non-breathable polyester uniform may suddenly decide that if he catches a subject, this is no longer a level four encounter. He is exhausted, over-heated, out-of shape and about to fight. He escalates to a level five response.
Can we blame him? No, at this moment, we let him slip out of the Matrix and respond based on the Subject/Officer factors. In other words, the Matrix doesn’t really matter. And what about the tools we carry? The Matrix linearly describes injury potential within its categories. It lines up the defenses of the officer from least to greatest and leaves him with the impression that the use of some defense is more or less dangerous and extreme to the offender. But we know in the field that the use of a firearm, pointing and not shooting for instance, may not necessarily represent the use of deadly force while the use of empty hands or batons may. Our Matrix is an advanced game of ‘paper, scissors, rock’ where we suggest that one weapon always defeats another. In the real world it isn’t the weapon that matters, it is how one uses the weapon that determines its core value, its effectiveness and its injury potential.
Teaching an officer how to operate within this biosphere of intent, stress, fear, fatigue, perceived action/reaction and weapon selection should be the goal of every force trainer and it is undermined by a concrete force matrix.
For some, the matrix has become “policy by proxy”. This was never the intent of the force matrix put out by CJSTC. Oddly, some agencies in the State of Florida refuse to operate outside of the CJSTC academy level Matrix, going so far as to suggest that any technique not approved by FDLE cannot be taught in-service!
When one recalls that the basic recruit course is a minimum standard it is easy to see how our State suffers by the adoption of this simple training tool as a department policy. Yet it happens, and it is feared that it will continue to happen so long as the Matrix exists.
This may be the greatest reason for eliminating the Matrix, because of its misuse. The State of Florida is not tasked with policy development for police and corrections agencies. In fact, in-service policy development is not within its purview. Legislatively, the job of the CJSTC is to develop minimum standards; to turn non-professionals into professionals through the academy process. It is the job of a police department or corrections department to turn professionals into better professionals over time. This can only be done through good in-service training that allows for advanced and specialized training that goes beyond the minimum standard to meet the needs of each agencies unique job tasks.
Amounts of force vs Authority to use force
The Force matrix describes amounts of force, suggesting that our primary concern, no, rather our sole concern is in teaching officers how much force may be used against certain types of resistance. However, if you look at the data to discover where we are actually having problems in legal use of force, you can’t find many cases where officers who had the legal authority to use force, used too much of it. Where most internal affairs complaints and civil actions arise for police use of force, we see that it isn’t the amount of force that is in question, but rather the issue of whether the officer had the authority to use any force at all!
A greatly overlooked case law that gives guidance on an officer’s authority to use force is the case Terry v Ohio which describes that moment in which an officer can make a valid stop.
Expressly stating that an officer is allowed to make a stop when he reasonably believes that a crime has, is or is about to be committed the Court implies that an officer is also allowed to use force. How much force? Any amount of force, except deadly force, unless the officer or another person’s life is in imminent danger of death or great bodily harm, then the officer may use that too. That part is easy.
What we have to understand is that there are many times when officers, shy of a reasonable belief that a crime has, is or is about to be committed interact with the public, and it is these times, when the authority issue not being completely understood by the officer that their potential use of force is at its greatest liability for themselves and their agency. It is the presence of crime which grants an officer his authority to lawfully use force, an issue not even addressed by the Matrix.
Absent crime, officers are absent authority and cannot use any force at all. Unfortunately, the design of the Matrix presumes authority, giving no mention of the qualifying condition that allows force to be used, and leaving the officer with a false sense of security that they will ultimately prevail.
There are many reasons why the State’s workgroup felt the Matrix needed to be eliminated from basic recruit training. Humans are hard-wired with a complex autonomic nervous system, designed to detect danger through the process of stress and fear. They are critical thinkers that need to evaluate the rapidly changing facts and circumstances that they are presented.
They need to evaluate their transactions with the public, and recognize elements of crime, how those elements come and go with further investigation. By considering the totality of the circumstances; and the choices they face during conflict; to run, to fight, to posture, to submit, we can understand the subjective factors that determine the types of force that officers choose in that moment. Rather than a simplified if/then equation we better satisfy the Court when it characterized the subjective/objective paradox that is the Graham v Connor (490 U.S. 386 (1989)) decision. The one in which the test:
“…is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Where the “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular
In our quest for a rational objective model it seems that we have overlooked the most obvious and important feature of the transaction between the officer and the suspect. It is the totality of circumstances which justifies the use of “any force which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest.” (FSS 776.05)
I suspect that the matrix will continue to be used by certain law enforcement and corrections agencies throughout the state, and that is ok. It is a policy issue after all. I am certain that it will also be used by the Courts to describe force in a clinical way. The CJSTC’s decision to no longer recommend a matrix will not eliminate it from professional use. It is too well established and entrenched in the profession to simply ‘go away’. However, by the Commission not recommending a specific matrix, officers entering the State’s academy will be taught the larger picture in use of force transactions. They will be trained to respond to the totality of circumstances by using reasonable and necessary tools, techniques and tactics. They will become less confused and more efficient in their decision making.
By once again teaching the skill of critical thinking, we will likely see fewer incidents of wrongful uses of force and we will engender a model for greater analysis to deal with all of the Suzy Maries that will undoubtedly continue to be placed before us.
About the Author
Roy Bedard, President of RRB Systems International has provided instruction to law enforcement and corrections personnel since 1986. Called the “World’s Policeman” by the US Commercial Services, and cited as a Use of Force Expert by a variety of news, print, television and radio media, Roy has contributed to use of force policy, development and innovation in four continents and has helped countless professionals and laymen to understand the complexities of physical control, legal authority and governmental use of force.
Roy is a subject matter expert (SME) for the Florida Department of Law Enforcement and has significantly contributed to the writing of the 2008 CMS II Defensive Tactics Curriculum for both the basic recruits and Instructor courses.
For more information go to www.rrbsystems.com or www.roybedard.com