4 Keys for Every Use of Force Report

In training use of force, reviewing cases from around the country, and talking about force decisions with police executives, I see two consistent trends. First, deputies almost always make the correct use of force decision in circumstances that are tense, uncertain, and rapidly evolving. Second, we do a terrible job documenting our decisions in a well-written report.

Given that the decision-making is so often sound, but the reports are so often poorly written, why does this disconnect exist? While there is a lack of training on report writing, especially highlighting how a use of force report differs from regular investigative narrative, is the problem partly an unconscious one. Does the confidence which is required to make a use of force decision in the first place, that is the confidence to face danger and fight it rather than freeze or fly, also lead to a misplaced confidence that everyone else will later see that force decision as well made, thus there is no need to spend time explaining it? Or does an officer unconsciously not want to actually relive in detail the potential danger they were in as some misplaced bravado? Or possibly, does the act of thoroughly explaining a life or death decision, open an avenue to second guessing oneself that an officer does not want to engage in? I have no idea. I am not a psychologist, just a simple lawyer who wants cops to write better reports so they can survive summary judgement. So for now, I hope broaching such an idea may help officers reading this shake off any such harboring fear of second guessing themselves and lead them to a place where they know the well-made decision coupled with the well-written report is a much better strategy to survive any excessive force claim.  

Regardless of the psychology issues behind why the reports fail to do what needs to be done, I do know that officers and deputies need to be reminded that the use of force report is not just being written for a sergeant or supervisor. It is ultimately the document that could center around an accusation of excessive force, so the more detail it contains the better. To that end, we need to continue to train at least these 4 keys for writing a use of force report.  

#1 The suspect’s actions drive your response.  Finding your voice using this story-telling mode works great for a use of force narrative because your goal in a use of force report is to show that you, the fair-minded, non-biased officer responded to a situation you did not create. You chose, based on the totality of the circumstances being driven by suspect’s actions, the most objectively reasonable reactions available to you.   

#2 Less is more is the wrong approach… detail your actions.  “Less is more” could not be more dangerous for use of force report writing. You need to detail all that you remember and perceived so when called upon to testify you can put yourself back in the moment. While the jury in an excessive force case is hearing this for the first time like it happened yesterday, you are re-living it six months to a year later, after having re-told it several hundred times. If you don’t include the small details the first time you write the report, you will either look like you don’t remember, which is bad, or that you didn’t care to document it correctly, which could be worse. Additionally, the lack of detail allows opportunities for the plaintiff to insert their version of the narrative into the events that happened. The more detail you include the more you close off that avenue of attack from the plaintiff to make up false accusations or motives.

 #3 Document what you perceived at the time of the decision.  Above you saw me use the word perception. This was intentional as officers in a police report generally write about the facts of an investigation and have a lot more reps doing that mental exercise than writing a use of force report. By contrast, in a use of force report, your perceptions matter a great deal because what you perceived as a threat (real or not) is what ultimately determines if your actions were objectively reasonable or excessive. Documenting your perception also captures the feelings and danger of the moment that you felt had to be acted upon that possibly were not captured by your camera, your partners, their cameras, or the guy with an iPhone standing 10 feet away. 

#4 Remember your audience. The audience for a use of force report is not other cops or the prosecutor. It is for civil attorneys and jurors who are typically uninformed about how the police world works. Using plain language to explain the detail you are trying to capture allows even the most uninformed reader to reach an informed conclusion. You want the reader to finish the report thinking “I understand why he had to taser/strike/shoot that person.” Using plain language and avoiding police jargon goes a long way to get that uninformed reader a clear glimpse into the use of force situation you have to describe without making them pause to figure out unimportant content.

I honestly think that if you can remember the overall purpose in writing a use of force report, document your perceptions, detail your actions, and draft your narrative to show that your decisions were driven by the suspect’s actions, then your chances of finding yourself in an excessive force claim are greatly reduced. Further, by following this guide, when the lawsuit does actually come, you have prepared for your defense attorney a strong position from which to argue and hopefully to avoid even the idea of settling your use of force case.  

Use of Force & Qualified Immunity Under USSC White v. Pauly

An article I recently wrote with my writing partner, Ali Breshears, that was published in the Idaho Magazine, the Advocate.  It examines use of force decision making for LEOs under the new White v. Pauly case.

Shots are fired at night in a dark alley.  A police officer is dispatched to the emergency call. He arrives to find his fellow officers pinned behind a dumpster and firing at suspects. As bullets fly overhead, and without knowing the basics of who is shooting at his fellow officers, the officer un-holsters his weapon and dives out of the patrol car. This officer now has choices to make and must react to the suspect’s action. In all the scenarios that play out from this point forward, the officer makes a use of force decision. In the best case scenario, no one dies. In the worst case, both officer and suspect die. In between lies the nuance of use of force decision-making, the application of use of force case law to 42 U.S.C. §1983 claims against the officer, and the ability of a municipality to avoid a claim of excessive force.

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Use of Force Decision-Making

A pleasure to speak at FRA's Law Enforcement Risk Management Summit in Scottsdale, Arizona this week. I love talking to other national experts on Use of Force and sharing my presentation on the "Real Cost of Settling: Winning Use of Force Cases." Training on use of force decision-making and use of force report writing is something we can all incorporate right now in our agencies to reduce claims and avoid costly settlements. Those tools, in addition to building a "culture of support" in our agency, means we are prepared to seek summary judgment in our favor when an officer has made an objectively reasonable use of force decision and then documented it well.  I find that agencies that take the time to do this right, pay out a lot less on use of force claims as they draw less use of force complaints.  Andy Casavant writes: “By using good tactics, we lower the chance of resistance. By lowering the chance of resistance, we lower the chance of injury. By lowering the chance of injury, we lower the chance of liability.”  This same philosophy applies to use of force decision making as the exercise of good tactics and planning mixed with the officer's ability to recognize the objectively reasonable decision in the moment (which only gets easier with practice) absolutely reduces the officer and agency's risk of exposure to any liability.