Last week while teaching a defensive tactics course, one of the participants suggested that officers in his department were overly concerned with activating their digital voice recorders when responding to an incident. He went on to describe instances where immediately after officers were involved in a critical incident, they were approached by a supervisor who asked, “Is it recorded?” prior to asking the officers if they were all right. He speculated that due to the department’s emphasis on audio recording contacts, an officer would be injured or worse while reaching for the record button instead of their firearm or other piece of life-saving equipment. As you might imagine, this promoted a lengthy discussion as to the pros and cons of such things as in-car video, CC-TV, audio recorders, camcorders, camera phones, etc.
Whether we like it or not, technology is here to stay. You might as well assume that any action you take while on patrol could end up on YouTube. On the other hand, any officer who has carried an audio recorder on patrol has probably found it to be a useful tool in mitigating frivolous citizens’ complaints as well as providing strong evidence in court. The million-dollar question is, “How can we effectively use technology to keep the administrators happy and enhance our case against ‘Johnny Dirtbag’ without exposing ourselves to unnecessary risk?”
Know statutory law, case law, and department policy
Knowledge is power. The more familiar your are with the laws you enforce, case law, and your department’s use of force policy, the more confident you will be when forced to make a split-second decision under stress. This will allow you to focus on the task at hand rather than worry about circumstances out of your control, such as someone filming the incident.
At a minimum, you should have a thorough understanding of the following case law decisions pertaining to use of force by peace officers:
- Graham v. Connor–Established the “objective reasonableness” standard
- Tennessee v. Garner–Established the “fleeing felon rule”
- Forrester v. San Diego (25 F. 3d 804)–Confirmed that officers are not required to use the least amount of force as long as the force used was reasonable
Unfortunately, many department policies are more restrictive than case law. This can result in unnecessary liability for the officer and the department. If your use of force response was determined to have been out of policy, there is little chance that the department would foot the bill for any civil judgment against you. If that’s not motivation enough to read your department’s use of force policy, I don’t know what is.
The good news is, if your response to a situation is lawful, consistent with case law, and within department policy, you’re golden!
Use technology tactically
Since the role of a police officer is largely reactionary, officers are often forced to decide in a split-second what amount and type of force should be used in a particular situation. The decision will probably be made in less than favorable conditions, when the officer is under extreme stress. If the officer hesitates because he is thinking about activating his audio recorder or about how using his TASER will look on the 10 o’Clock News, the officer’s life and perhaps the lives of innocent parties is in jeopardy.
I was once told by a former chief of police that if I were involved in one more incident where I did not activate my recorder, he would “have my ass!” I began using my recorder more regularly. The problem is that in the heat of the moment, it’s hard to remember to press that little red button. What works well for me is to activate my recorder from the comfort of my patrol vehicle as soon as I’m dispatched to any type of in-progress call. I even activate my audio recorder prior to making traffic stops, when feasible, to avoid fumbling with it when I should be surveying my environment for signs of danger.
My department’s patrol vehicles are equipped with in-car cameras that are activated by moving the toggle switch for the light bar, so the vast majority of traffic stops are captured on video.
Of course, there are times when the battery for my audio recorder dies or the in-car camera runs out of disk space. Hey, nothing’s perfect–not even technology. However, it’s important to realize that when used properly, technology is a valuable tool that can keep you out of the chief’s office or make you look really smart in court.
Create good witnesses
Whether or not you’re recording a use of force incident, chances are that someone is. It’s always a good idea to give loud, clear verbal commands to the suspect. Things like “Police! Don’t move!”, “Stop Resisting!”, or “Don’t make me shoot you!” will probably seem a bit more professional to the television audience and/or jury than “You want some of this, mother****er?!”
In addition to using appropriate verbal commands, consider disengaging from a suspect. Let’s say you’ve delivered three baton strikes (there’s no magic number) to the suspect and he’s still standing. Rather than strike him several more times, step back slightly with your baton held at the ready and order the suspect to the ground. This gives him an opportunity to comply and avoid being hit again. It also reveals to your audience that your intent is to achieve compliance as opposed to beating or punishing the suspect.
Make Officer Survival your number one priority
Following any type of critical incident, there will inevitably be Monday morning quarterbacking. However, in a situation that erupts suddenly, activating your audio recorder should be the last thing on your mind! Remember that protecting yourself and innocent citizens is the number one priority. The importance of having the incident recorded in video or audio format pales in comparison.
Always have a Plan B. Never give up!
Law Officer is the only major law enforcement publication and website owned and operated by law enforcement. This unique facet makes Law Officer much more than just a publishing company but is a true advocate for the profession.