For decades, law enforcement has been moving toward practicality and purpose in its design and delivery. Not unlike the information accumulated over the years in the legal realm, certain control strategies and tactics have evolved that have stood the test of time, proven their value and validity, and have emerged as essential to the safety of officers and suspects alike. A few of these fundamental policing principles are noted below in the interest of ensuring we are all looking at control of encounters in a similar manner.
We hope to have continued to enhance law enforcement performance via this text with the inclusion of various concepts and graphics created to demonstrate maximized safety and performance.
Legal and physical survival for police officers depends on their ability to perceive, assess, and respond to increasing professional challenges. āTerry stopsā have great potential to result in conflict between officers and citizens, especially if the necessary legal and tactical fundamentals are neglected. However, they have also been judicially recognized as a valuable means of suppressing and investigating crime.
Foundations of Law Enforcement Activity
The foundation of any law enforcement activity consists of four critical components: law, philosophy, strategy, and tactics. Each component is obvious by itself, but it is the integration of them that makes for a completed picture of performance. It is a tapestry, which is a completed work only when all of the threads are present in their proper place.
The law is the source of all law enforcement authority: its nature, extent, and limits. These attributes come from constitutions, statutes, and case law, both state and federal. Case law is judicial interpretation and application of those constitutions and statutes to the facts of a specific case. As officers, the law is what makes us different from our fellow citizens within the interactive context of our professional life. The laws we enforce, and our authority to enforce them, generally come from state and local regulatory bodies. The principle source for the limitations of our actions is federal constitutional law. This is because an investigative stop is a āseizure,ā and as such must be conducted within the Fourth Amendmentās limits.
The Fourth Amendment to the U.S. Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
The restrictions placed upon government actions by the Fourth Amendment are the minimum restrictions. There may also be more restrictive provisions in state constitutions and statutes. Although many of these restrictions make our job more difficult, we must all remember that this is not an accident. If one recalls basic government and civics classes, it was a conscious design decision of those who drafted the Constitution and the Bill of Rights, of which the Fourth Amendment is a part. The history of our country, and of England before the American Revolution, included oppressive enforcement activities. The founders of the United States wanted to ensure that such practices would not return.
Obviously, a major emphasis of our text has been the legal basis for our enforcement actions; the ability to conduct a āTerry stopā as we know it today exists in large part due to court cases, the first and most important of which is of course Terry v. Ohio, 392 U.S. 1 (1968). Having proceeded through the legal foundation, we now integrate tactical materials in such a manner as to clearly show the interaction of enforcement authority and its implementation.
The Terry case is vitally important. The fact that an enforcement activity is known by the name of a United States Supreme Court case tells us of the importance of the case. We have provided a copy of the case after this chapter and recommend that it should be read and reread frequently. However, please remember that the purpose of our text is not to provide a definitive legal analysis of all the implications of Terry. The most recent (2012) edition of a leading legal scholarās treatise on the Fourth Amendment has five volumes and an index volume, and with the October 2016 pocket part (updates) dedicates 761 pages to āStop and Frisk and other lesser intrusionsā! We clearly cannot try to replicate that level of knowledge and detail and still have our material be useful to our target audience. That treatise is intended for a very different audience. In doing so, we can only touch upon the high points of constitutional analysis, generally relying only on U.S. Supreme Court cases. By pointing out some of the areas of importance and concern, we hope to stimulate internal research and development within agencies, training academies, and other entities that can and should be among the resources available to law enforcement.
Likewise, we cannot replicate the level of knowledge shown in Urey W. Patrick and John C. Hall, In Defense of Self and OthersāIssues, Facts & Fallacies: The Realities of Law Enforcementās Use of Deadly Force (3rd edition, 2017), a text that should be possessed and read by anyone with an interest in the topic of law enforcement use of force.
It is possible to demonstrate the hierarchy of the basis for law enforcement actions and the corresponding levels of intrusion. There is a progression from a citizen contact, to an investigative detention, to probable cause to make an arrest. The investigative detention, or āTerry stop,ā falls into the middle area of intrusion, where perceptions and definitions are imprecise and the difficulty of decision making is most pronounced.
Subsequent chapters will then address increasing levels of intrusion into the actions of citizens, as shown in Figure 1.1, the Intrusion Chart. These chapters will continue to build the foundation for your successful use of your lawful authority to conduct investigations of suspicious persons.
One definition of philosophy is āthe system of values by which one livesāāthat is, why we do what we do. Philosophy as used here is not only personal, but it includes department and community philosophy as well, to the extent that those are consistent with our professional obligations.
Strategy and Tactics refers to the manner in which we implement our authority. They are the means by which our theoretical ability to engage in an enforcement action becomes operational. They are also the procedures by which we maintain control over our professional obligations.
Figure 1.1 Intrusion Chart
It has been stated that our most important role is that of a peacekeeper, safeguarding individuals and society from predators. To the extent that this describes the greatest extent of our authority and/or responsibility, it is correct. We must seek out and resolve conflicts by whatever means are reasonably necessary. The means by which we accomplish such a goal must possess a reasonable balance in form and force. We have attempted to provide a training foundation āfromā the police as well as āforā them. Abuse of police power is a threat to all members of society, and the few officers who engage in improper acts are a menace to the rest of the profession. The safe, effective deployment of the āTerry stopā is one of the most useful tools officers can utilize to protect us all from the criminal element seeking another target for victimization.
The S.E.T. Principle
By dictionary definition, a principle is āa basic quality determining the nature of an activity.ā The nature of this activity (function) must be a designed, directed, and delivered effort (focus), built upon a āprinciple-basedā sequence. In other words, the foundation of our efforts must be solidly supported by principles that have gained and maintained performance reliability and validity.
Perhaps the most important principle can be best expressed by the acronym S.E.T.
S: Safety for the officers and citizens during the enforcement encounter.
E: Effectiveness of the interaction between officers and citizens during this contact experience.
T: Transition potential available for the officerās response to the degree of perceived citizen compliance/noncompliance or other changes in circumstances.
Safety
Remember: no arrest is worth dying for. We feel that the positive performance of enforcement activities is best achieved by utilization of sound, legally validated procedures, based upon a system of strategies and tactics.
Strategy and tactics must be the foundation for our functions while implementing our legal authority during a āTerry stop.ā The objective of strategy is to diminish the potential for subject noncompliance, with tactics providing the planned basis for the interaction.
In fact, we encourage deployment of what we refer to as the Encounter Formula whenever officer and individual contact occurs. The Encounter Formula demands that the officer must presume a recognized position of advantage while keeping the subject in a recognized position of disadvantage. In this manner the subjectās inclination as well as ability to engage in non-compliant actions may be thwarted. In fact, we are simply making use of human risk aversion, by creating a sufficient level of risk or discomfort to discourage non-compliant behavior.
The importance of creating and maintaining a tactical advantage cannot be overstated. Various studies, both within law enforcement agencies and in more academic settings, indicate that many violent conflicts are foreseeable and that bad tactics result from and lead to bad decision making, evolving into bad or even worse outcomes. It is far better to prevent resistance by making it more difficult and less appealing than it is to have to overcome it by the application of force. Sun Tzu told us centuries ago that āto win without fighting is best.ā However, if despite our positioning and other tactics, resistive or assaultive behavior occurs, we should be in a superior position to control it due to our tactical advantage.
Several elements of encounter have a principle-based tactical expression throughout this text, including:
- The utilization of undetected movement and the success associated with surpriseāA confrontational encounter based upon an element of surprise may lead to the even greater potential for discovery and control.
- The concept that getting closer to an object or individual may not always be better or saferāDistancing oneself from the subject or situation can significantly reduce the presentation of a mutually threatening encounter. The selection of cover presupposes that the officerās proximity will establish or even enhance the protective basis.
- Donāt go to them, direct them to youāThe subject or the situation may be perceived as threatening from the point of initiation. By giving yourself more time to recognize and respond to risk, you enhance your safety. The officerās restraint in terms of immediacy must be conditionally concluded.
- Knowing your enforcement environment (lights, structures, locations, etc.) can enhance the Encounter FormulaāYour familiarization with the surroundings and assessed knowledge of the people and things based upon professional familiarity can be crucial in establishing a protective posture and rational response.
- āWhat is done well is done quickly enoughāāThe length of an officer and individualās interaction can increase tension and decrease cooperation. Police efficacy includes efficiency and comprehensiveness.
Effectiveness
Each of the safety strategies and tactical procedures presented throughout the text are a result of years of experience and on-going field research seeking to secure maximized safety and efficiency. These tools and tactics were selected based upon their ability to facilitate function and enhance effectiveness.
Transition
This element includes the ability to continually assess the circumstances in any officer/citizen interaction, perceive the degree of subject compliance and/or noncompliance, assess that and other risks, and then initiate and complete the appropriate reasonable response. As stated by the Arizona Supreme Court, āpolice interactions with members of the public are inherently fluid, and what begins as a consensual encounter can evolve into a seizure that prompts Fourth Amendment scrutiny.ā State v. Serna, 235 Ariz. 270, 272 331 P. d 405 (2014). The principle of transition reflects the U.S. Supreme Court decision in Graham v. Connor, 490 U.S. 386 (1989), which suggested the integration of three elements critical to the process of decision making in the determination of āobjectively reasonableā force utilization. If this can be perceived by the judiciary, who do not have to apply it in their daily activities, it should be readily apparent to law enforcement officers.
For years, police officers and their agencies have been frustrated by their inability to rapidly respond with competency and confidence in the control of a compliant individual who becomes non-compliant. However, now, by blending the tradition of the ancient martial arts and contemporary police tactics, we have evolved an innovative and flexible control methodology.
For centuries, the Aikido form Sankyo has a procedure that practitioners have āgone toā in order to gain subject control. However, in an evolutionary approach the contemporary peace officer can ācome fromā Sankyo, using its potential power toward not only the prevention of non-compliance but, if unsuccessful in its preventative form, to initiate its controlling capability via positional tension. This āadaptiveā attribute allows the tactic to be utilized in a variety of applications found throughout enforcement encounters.
At the initiation of physical control, it should start as both a point of domination by the officer and painless to the subject, but with the ability to transition to increase the pain compliance as mandated by the evolving aspects of the interaction based upon the subjectās degree of compliance/non-compliance.
Policing is an occupation entirely dependent on individual perception and analysis. Through their training and experience, peace officers should gain both elements. These functional facets may include the gamut from preventative positioning, handcuffing, and even more assertive controls upon non-compliant behavior. Each aspect of the interaction can be initiated from the onset of the officerās tactile connection. These fundamentals are demonstrated in Figure 1.2, the Totality Triangle.
Figure 1.2 Totality Triangle
The Totality Triangle depicts the three elements that must be considered in determining whether an application of force was objectively reasonable. It is a means of explaining the application of Graham v. Connor.
Perceived Circumstancesāthe officerās perception of the severity of any crime, the existence of an immediate safety threat to the officer or others, etc.
Perceived Subject Action(s)āthe subject action(s) as assessed by the reasonable officer
Reasonable Officer Response(s)āthe reasonable response(s) selected by the officer
Phases of Response Activity
When placed into an encounter, the officer must expand his/her perspective from the common notion of āreactionā into more strategic conduct of an action-initiated response. This response should be proactive, drawn upon the expertise and experience with the actual subject and situations or other sources of knowledge pertaining to the same or similar participants and incidents. One need not and should not wait until they have actually been attacked to impose control on the subject.
Obviously, the officer should remain free of the temptation to pre-judge the subjectās actions, and gain the enhanced ability to more properly perceive the potential or actual actions of the subject in question. Those perceptions must be well communicated as part of the subsequent documentation of the contact.
Strategically, the officer should practice direct, proactive communication toward the individual in an attempt to prevent potential non-compliant behavior within the confrontation. Or, if a conflict is perceived as inevitable, the officer should initiate procedures to provide sufficient systems (strategic planning, distancing, team tactics, etc.) to maximize the safety of him or herself, other officers, and the uninvolved citizens who may be exposed to the consequences of the conflict.
The response must be active, in that the controlling tactics the officer initiates will accomplish the control of the subject with a high degree of effectiveness and safety to the officer and to others. In this manner, the confrontation can be controlled as efficiently as possible, thus avoiding the need to resort to higher levels of force with the inherent risks of greater potential injury to the officer, the subject, or others.
And finally, the response must be effective, based on application of lessons learned or researched validity. Most confrontations are not unique or isolated in time; their components will re-occur at other times with other subjects. If a safe, successful solution evolves, the officer should follow that course of response in the future. If the attempted solution is not successful, the officer should use the past experience as a catalyst to seek a safe, effective future solution.
Principle-based safety can only be maintained if officers strategically and systematically anticipate, assess, and act within the effective and accepted parameters of the situation. Officers must understand that this process exists ...
