Use of Force and Considerations for Career Survival

I have spent over 20 years as a use of force expert testifying across Canada in internal investigations, criminal cases, civil lawsuits, coroner’s inquests and fatality inquires. Here is one of my concerns from that experience and the reason I wanted to write this article to help you. Police officers almost always do the right thing in the heat of the moment – in rapidly unfolding and ambiguous events where decisions have to be made and action taken quickly. Statistically, police officer hardly ever use force and when they do, is actually quite rare that an officer’s use of force fails to meet the test of necessity, proportionality and reasonableness. However, where officers routinely (and I mean, almost always) fail, is in documenting what they did and why they did it. 

I recently sat in the back of a courtroom and watched as an officer imploded on the witness stand. He had been in a significant use of force event in the back alley of a high-crime neighborhood after he had stopped a stolen vehicle occupied by two individuals believed to be known drug dealers. The officer ‘imploded’ on the stand because under the weight of cross examination regarding the complete insufficiency of his notes, it quickly became clear to me as a courtroom observer, the trier of fact had no confidence in the officer’s credibility as a witness. While I did not write the judges words down verbatim, the gist was this ‘if all this occurred as you said it did, and the things you are saying now that you saw at the time were so important and dangerous to you, why did you not make any notes about that?’ Well, I instantly knew that was the ‘death nell’ for the officer’s credibility in the eyes of the judge. 

If you have been paying attention at all, you will have caught some very important signals regarding police practices being sent from both ends of Canada in recent months.

While the Mass Casualty Commission report is longer than ‘War and Peace’, if you persevere through that tome, you will be rewarded with some very important nuggets that can very much help your day-to-day policing practices. One of those that I want to talk about in this article is the practice, or more accurately the non-practice, of professional notetaking. 

Now, I know what just happened. You read those words, ‘note taking’ and threw up a little in the back of your mouth and have decided to flip to the next article. Don’t do it. Can I implore you to stick with me and listen to what I have to say? This may be a matter of your career survival.

In the Mass Casualty Commission Report ‘Turning the Tide Together’, they dedicated an entire section to the issue of notetaking. Why? In a word, because it was horrendous – ‘absent, lacking in detail, inaccurate, incomplete, illegible, and did not clearly articulate the officers’ observations, decision, and actions.’ But, you might be thinking, that’s the RCMP – they need to clean up their act! Not so fast. Two things need to be said at this point. First, the RCMP had in place an extensive policy on notetaking requirements, the issue was not a lack of policy, it was (and is) a culture of carelessness by the officers when it came to notetaking practices. The second comment is that this notetaking malaise is not confined to the RCMP. The Commission stated that they found ‘such findings (of deficiencies in notetaking) are ubiquitous (I had to look that up – it means ‘appearing and found everywhere’) in other Canadian reviews of police practices.’

I told you there have been two very important signals; the Mass Casualty Commission report mentioned above is the first, and the second signal comes to us from Vancouver, British Columbia regarding the Coroner’s Inquest pertaining to the in-custody death of Myles Gray, a case I was involved in as a use of force expert. If you have not been following the media about this case, you should be. There are several critical lessons for you from the Coroner’s Jury published recommendations. But, since the purpose of this article is on professional notetaking, this is what I want to focus on in the Myles Gray case. Deficient notetaking, consistent with the Mass Casualty Commission report, was extensive with the officers involved in this case. Several of the officers who were present at the scene, and used force on Mr. Gray, did not even make any notes and stated at the Inquest they did not because that was the direction given to them by the Union representative, an accusation he strongly denied. (As an aside, if anyone tells you or suggests that you not make notes of a critical incident you were involved in, tell them to read the 2013 Supreme Court of Canada decision in Wood v. Schaeffer. Here the SCC clearly decided that officers have a duty to prepare accurate, detailed and comprehensive notes as soon as possible after an incident and that officers are not entitled to have counsel present or assist them in the preparation of those notes).

Obviously, a critical component of a professional police officer’s skillset is the ability to thoroughly articulate their perceptions, risk assessments, decision-making and actions. The ability to use force on another citizen is the most significant, serious and rightly, most heavily scrutinized action, of a police officer. When it comes to the need to intervene with any measure of physical force, proper articulation by way of the officers’ notes and police report is essential. A detailed record of all the circumstances surrounding the incident should be made by each involved officer, in order to document the officer’s justification and care in their chosen intervention strategy. Your written record should include:

1. Based upon your assessment of the risk, did you believe this was a Discretionary Time (non-exigent) or Non-Discretionary Time (exigent) event? Why? (Describe all known risk factors that guided your risk assessment and conclusion). Did you have time to utilize deescalation? Time to slow down and stabilize the scene?

2. What type of subject did you believe you were dealing with? Why? (describe all relevant observations of subject behavior).

3. What communication style (conflict communication or crisis communication) was likely going to be effective in influencing the subject’s behavior? Why? What kind of communication did you try in order to obtain voluntary compliance? 

4. Did you fear violence on the part of the subject, toward himself, you or others? Why or why not?

5. Towards whom did the subject exhibit their behavior? What did this mean to you?

6. What was the subject’s size, compared to you? What did this mean to you?

7. Have you had any previous encounters with the subject personally? What did this mean to you?

8. Did you have any historical knowledge about the subject from previous police records or from others? What did you know and how did this impact you?

9. What other knowledge of the subject, if any, did you have? What did this mean to you?

10. Did the subject appear to be under the influence of alcohol or drugs? What the subject agitated? Under mental duress? What did all these observations mean to you?

11. Was the subject contained and alone? Where other persons potentially at risk? What did this mean to you?

12. Were others in the vicinity also posing a potential risk? What did this mean to you?

13. Was the subject making threats verbally or by implied by gesture? What did this mean to you?

14. Were you able to establish contact / make your presence known to the subject? Did they recognize your presence? Were they responding to your presence and questions in a way that gave evidence they had a grasp of reality? What did this mean to you?

15. Was there anyone else on hand capable of assisting you with the subject (containment, communicating or use of force)?

16. Was there escalation in degree or violence threatened by the subject? What did this mean to you?

17. Was the subject armed (known) or did you believe the subject to be armed (suspected)? Why or why not and what did this mean to you?

18. Were there any weapons or weapons of opportunity within proximity of the subject? What did this mean to you?

19. What threat cues, if any, did you perceive from the subject? What did those threat cues mean to you?

20. Were you able to identify yourself clearly and state the purpose of your presence to the subject?

21. What was you ‘mission’ intent? What was your desired end goal when you were interacting with the subject?

22. What did you say to the subject (to the best of your recollection)?

23. What was the subject’s reaction to your physical presence and to what you were saying? What did this mean to you?

24. Was the subject resisting you? How? What did this mean to you?

25. Were you able to give the subject a verbal warning before the use of force? Why or why not?

26. If you gave a warning, what did you say?

27. If you gave a warning, how did the subject react to that warning?

28. What intervention options did you use? Were they effective?

29. At any point did you use or consider tactical repositioning or disengagement? What did you do? Or, if you could not consider these options, why not?

30. Did you have / use cover, concealment or shielding between you and the subject?

31. Was the subject injured prior to and/or after any intervention with force? What were the injuries? Was medical attention offered and/or provided?

32. What other resources (internal such as CIT, or external such as social or mental health supports) were engaged to provide follow-up care / intervention?

Despite the length of this list, it is not exhaustive. Always record, in as much detail, a full description of the incident with a heavy emphasis on your perceptions, fears, risk assessment, personal capabilities, and resources. Always remember, decision-making during any incident should be seen as a dynamic and constantly evolving process. The more time and distance you can maintain, when appropriate to do so, the better your decision-making is likely to be as you think your way through the problem.

When the dust has settled, you’ve calmed your nerves and are sitting down to make your notes pertaining to any incident in which you have had to use force on another person, it is time to transition your thinking from officer survival to career survival. Please keep in mind, it is impossible to overcommunicate these details in your notes and will states. Consider the previous questions as simply a helpful tool, or aide memoire, to ensure you reflect on and document all the pertinent features of the incident that will become extremely important in an internal investigation, a criminal investigation, or a lawsuit (and as many other officers I know have found out – all three from one incident!)

I will close with some additional fatherly words of advice as a use of force expert, because I never want to see you swimming in your own sweat on the witness stand.

Always remember, before your pen ever touches the paper (well, notes are mostly electronic now, but you get what I mean):

1. Think of ‘career survival’ Imagine how painful it will be for you to be that officer, on the witness stand being eviscerated because of poor notes. You will not get a second chance. Don’t be that officer.

2. Run through the incident from start to finish in your mind as clearly and thoroughly as you can. Think about how you will ‘paint the picture’ for those who were not there and will have to come to an understanding of the who, what, when, where, why and how.

3. Use professional language at all times remembering that your notes will likely end up being reviewed by everybody internally and externally that will have any involvement with this incident downstream from you. Your notes may even end up being disclosed as a result of a FOIP request to anyone (think media) who requests them.

4. Professional language does not mean ‘police jargon’. As much as you can, use plain language!

5. Notes should be extensive in facts and descriptions in order to thoroughly give the reader a complete understanding of the decisions you made as if they were ‘standing in your shoes’.

6. Go back and remember point #1 above. Are your notes detailed, thorough, accurate, and clear enough to be a shield for career survival?

About the Author

Chris Butler retired as an Inspector after 34 years in law enforcement. 

Prior to joining the Calgary Police Service, Chris was a Search and Rescue Technician for six years responsible for conducting high angle mountain rescue, swift water rescue and avalanche rescue. During this time Chris was involved in developing and delivering intensive training for Search and Rescue Technicians. This began his interest and study in human factors, human error, decision making and motor learning principles.

After joining the Calgary Police Service, Chris became a full-time instructor in the academy, teaching both recruits and in-service police officers a variety of physical use of force techniques as well as combat firearms instruction. For the last several years of his career, Chris developed and instructed advanced Incident Command training to Sergeants, Staff Sergeants and Inspectors.

Chris has an extensive background in law enforcement use of force and has been certified as an instructor or instructor trainer in numerous incident command, firearms, physical combatives, less lethal/chemical agents and emergency vehicle operation disciplines. In addition, Chris has training in special event risk management and close personal protection. Chris is currently a National Trainer for NLETC. Having worked with law enforcement trainers at the local, state and national levels.

Chris has made presentations at National and International law enforcement conferences and has been qualified in court as an expert in firearms safety, police firearms training, law enforcement use-of-force training and evaluation. Chris has testified over 40 times as a use of force expert in criminal matters and coroner’s inquests pertaining to all aspects of use of force, officer involved shootings and in-custody deaths. 

Chris is currently a Senior Instructor for Force Science (FS) and has been certified as a use of force investigator and advanced force science analyst. He has instructed the ‘Force Encounters’ and the ‘Realistic Deescalation’ courses for FS for the past ten years. Chris is also certified as a shooting incident reconstructionist through TriTech Forensics and the International Association for Identification.

Chris is responsible for the development and primary instruction of the Advanced Methods of Instruction (MOI) for Training Practical Professional Policing Skills course. Chris’s driving ambition is to ensure training methods are based upon the most current science and research in human factors.

Chris can be reached at chris@raptorprotection.com