A Force to Reckon With

By Tommy J. Burns

When the incident is later examined during preparation for trial, attorneys discover that the security training manual was modeled after what is called the force continuum, traditionally used by law enforcement, where officers are taught a series of progressive reactive steps designed to limit the use of force to only what the situation requires. However, force-continuum policies were originally designed for police and not for private security operations. Moreover, even police departments today are reexamining whether it is the appropriate model to use. This article will discuss why security should replace force-continuum policies with guidelines based on reasonableness standards set out in case law.

Historical Perspective

No one knows who invented the force-continuum concept, but common belief within the law enforcement community is that Dr. Kevin Parsons, Ph.D., a national police trainer and inventor of the ASP baton, coined the term when he developed a multistep program for addressing violence.

The steps, still in use by many agencies today, have morphed into at least 55 different versions. Most force-continuum programs involve similar steps. Step one is defined as an officer being present; step two involves verbal commands; step three includes physical restraint by the officer, including pepper spray and stun guns; step four is the deployment of chemical agents such as tear gas; step five contains other nonlethal tools, such as batons; and step six is the use of deadly force. The only similarities among these varied continuums are steps one, two, and six. Steps three, four, and five are placed in different step locations depending on the rationale of the particular law enforcement agency or private-sector company.

The force-continuum model was incorporated into police training programs. The Federal Law Enforcement Training Center (FLETC) in Glencoe, Georgia, developed an expensive and colorful continuum that looked like a pyramid to help explain the force model and its proper application. Major law enforcement groups, such as the International Association of Chiefs of Police, the National Sheriffs Association, and the Commission on the Accreditation of Law Enforcement Agencies, accepted the continuum as a de facto training standard.

However, the force-continuum policy may be near the end of its life cycle. Several problems have developed in law enforcement over the past 20 years with the incorporation of force-continuum policies into training. Officers have had difficulty applying the policies, and juries frequently misunderstand them. Also, because there is no legal standard against which to measure force-continuum policies, attorneys manipulate them in litigation to benefit the plaintiff.

Relying on a force-continuum policy as a legal defense invites the pitting of one version of the force continuum against another. How would an organization react during trial if another force continuum were presented to the jury and it significantly differed from the one the organization’s security officers used? Arguing why your force continuum does not look like another continuum only demonstrates to the jury that there is confusion in the security profession regarding use of force. Jurors may decide that if the security company doesn’t know which force continuum to use, then perhaps the security officer was improperly trained, thus making the security organization liable for the plaintiff’s injuries.

There is an alternative that stems from the 1989 landmark U.S. Supreme Court case Graham v. Conner, the first to focus on amendment-based use-of-force training. In the case, Dethorne Graham, a diabetic, began to suffer low blood sugar at his home. Graham contacted a friend, William Berry, to drive him to a local convenience store to get some orange juice. As Graham entered the store, he saw a long line of customers. Determining that he could not wait in the line, Graham exited the store and asked Berry to drive him to another friend’s house to get juice. Officer Connor, with the Charlotte (North Carolina), Police Department, saw Graham exit the store and became suspicious. He followed Berry and pulled him over.

Although Berry and Graham told Connor that Graham was a diabetic suffering from low blood sugar, Connor made the pair wait until one backup officer arrived at the scene and other officers went to the store to investigate whether anything was amiss there. While the investigation was underway, Graham was pushed by officers and shoved into the car. A friend of Graham’s brought orange juice but the officers refused to let Graham drink it.

By the time the investigation was over and Graham was released, he had a broken foot, cuts on his wrist, a bruised forehead, and an injured shoulder. Graham sued Connor and the police department, claiming the police used excessive force.

The U.S. District Court for the Western District of North Carolina found in favor of the police, ruling that the force “was not applied maliciously or sadistically for the purpose of causing harm.” On appeal, the U. S. Court of Appeals for the Fourth Circuit upheld the lower court’s decision. But the U.S. Supreme Court overturned the verdict, disagreeing with the standard applied by the district court.

The high court rejected the absence of “malicious or sadistic” conduct as a test of reasonableness. Instead, it held that “all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.”



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