Some police departments in New York State, and perhaps elsewhere, require the filing of Use of Force Reports by law enforcement officers upon merely withdrawing a weapon from its holster in suspicious or tenuous and potentially dangerous situations. Reporting narratives are then duplicated in case reports and blotter entries. For a variety of reasons articulated below, I am of the belief that such overindulgence poses unnecessary risk to the safety of both officers and to the citizens that they are sworn to protect. Let’s start with a little social reality and then move to the hard facts.
Police officers in our nation today, from big cities to small towns, face unprecedented challenges the likes of which have never before been experienced. There is constant worry of suspension, termination, or even prosecution for split second decisions made in high pressure situations as they face the recently increased likelihood of being injured or killed on the job. They are forced to think, and then think again, before any action at all is taken and that very hesitation can, and has, cost them their lives, their careers, and in many instances, rendered them permanently disabled. They work every day amidst what is now ubiquitous scrutiny, “Monday morning quarterbacking”, and a veritable stampede of criticism, some justified, but most of the time, unscrupulously unfounded; and it is usually promulgated by individuals who have never been in such positions and seek to gain political or social advantage and recognition.
James Fox, a Professor of Law, Criminology, and Public Policy at Northeastern University acknowledges that we are flooded with tragic stories of officers being gunned down in the line of duty. He penned that two months ago, at Bridgewater College in Virginia, a pair of officers responding to a report of a suspicious person on campus was shot and killed by a former student and that New York City’s police department has been hit hard by several recent fatalities, including two young officers who were killed while responding to a risk-filled domestic violence call.
In our own department here in the Town of Newburgh, New York, a recent close inspection of all Use of Force incidents over a period just shy of six months where body camera and officer reporting were analyzed, found that 90% of the confrontations were handled in a manner worthy of supervisory accolade. The other 10% showed incidents where officers hesitated and/or gave the subject latitude enough that could have resulted in escape, injury to officers or civilians, or worse. One might argue that increased societal scrutiny, citizen cell phone and body recordings, and added use of force paperwork requirements by departments for merely unholstering a taser, pepper spray, or firearm contributes to officer hesitation. I surmise that the latter especially plays a significant role.
A perfect example of the above occurred in our neighboring Orange County city on Aug. 29, 2020, when Officer Evan Barone of the Middletown Police Department exited his marked police vehicle in response to a call for domestic violence assistance. As he approached the front porch of the residence, he was met with a barrage of nine-millimeter rounds from a convicted felon who exited the residence with a silver handgun being brought (from his side) to bear on Officer Barone. Before Officer Barone could unholster his firearm, he was shot twice and began to bleed profusely. A tourniquet was applied and he was rushed to a hospital where it was determined that one of the rounds that hit him shattered a bone in his arm. Since that time, Officer Barone has incurred multiple surgeries with more pending and has been unable to return to work as much as he would desire to do so.
More recently, on Feb. 11, 2022, nine Phoenix, Arizona police officers were injured and hospitalized, and a civilian killed; with the first officer responding to the call to assist a shooting victim (supposedly choking on her own blood) being shot himself multiple times before he could retrieve his weapon from his holster.
The danger facing the police today with the clear uptick in violence related crime across the country is seen by more than just the cases that we read in the newspapers or see on the television. According to the FBI, last year 73 law enforcement officers were killed in the line of duty - an increase of 60% over the number fatally assaulted in 2020 and 40% more than the average over the last ten years.
From 2011 to 2020, the FBI’s Uniform Crime Reporting Program showed 503 law enforcement officers killed, 18 of whom were in New York State. During the same period, 999 law enforcement officers were assaulted and injured.
During the past few years, and especially since the high-profile George Floyd incident, criticism of the police has escalated to a disproportionate knee-jerk level as have corresponding administrative policy changes which alter the way that officers both think and act, sometimes much to their detriment and safety. A few comparatively rare incidents, albeit egregious, should not speak to the great majority of professional and respectful police contacts nor should they dictate administrative changes which endanger officers and subsequently, civilians. Neither does the minuscule number of errant actions versus the total number of police contacts automatically indicate racism. These contacts do not account for the particular circumstances of each event and the populations with whom the police have the most contact.
But the knee-jerk changes, many times forwarded to merely placate, can be rectified so that patrolling the streets of our cities can be made safer for all. This return to normalcy requires patience, objectivity, a one step at a time approach, and a reliance upon the most experienced law enforcement personnel and the research conducted in respected law enforcement circles. As noted, we must keep use of force reporting requirements in mind as the data is considered.
No one that I have ever known wants or needs added unnecessary paperwork on their jobs. The cumbersome nature of it is distasteful enough to cause police officers to even unconsciously hesitate to protect themselves. Having a weapon drawn and at one’s side, or even held a bit down and to the rear in tenuous situations without the distracting thought of having to articulate via a written report an intuitive sense as to why an officer’s weapon was made readily available to him/her, can be split second enough to save a life. And even one life lost is too much. As one astute and experienced police training officer once offered “let not our police officers who risk their lives every day to defend us, die with their weapons in their holsters”. And these days, when firearms can be disguised as such things as cell phones and pens, and when a “switch” can be purchased on-line and applied to a pistol rendering it fully automatic capable of firing thirty (30) rounds in 2.5 seconds, any time a subject reaches for anything, a police officer must have his/her weapon ready without having to worry about how the officer is going to defend himself/herself in writing as to why he/she thought that the officer’s weapon needed to be more quickly accessible.
It should be abundantly obvious that holding a taser in an officer’s hand is not a use of force. Sparking and even pointing a taser is not a use of force. It is a threat of force. Unholstering your weapon is not force. Pointing it is not force; it is merely the threat of force. It is to the contrary, mitigation of adversarial force; it is diffusion. It is immediate de-escalation. It is officer and civilian protection.
In my 25 years as an FBI agent, in the conduct of making hundreds of arrests of violent criminals, never once was a subject non-compliant when faced with potentially lethal confrontation. And at no time did an agent have to report an unholstered weapon. Save the reporting for the actual taser or firearm discharge.
The New York City Police Department has over 40,000 police officers and does not require completion of a use of force report for an unholstered weapon. For them, the report is only required for the administration of a taser, the discharge of a firearm, or for having to place an officer’s hands on a resisting, non-compliant subject. This was reported to this writer by a now Detective Supervisor in the NYPD Gun Removal Division, a former NYPD Police Officer, and a present NYPD Detective and Task Force Officer.
Be reminded that a weapon is drawn to protect life and prevent death or serious bodily injury. At the same time, it promotes compliance. This is the simply stated FBI policy, and only upon weapon discharge is investigative paperwork completed unless it is accompanied by an arrest.
And by coincidence, on March 11, 2022, the Middletown, New York Police Department issued the following directive to its officers:
“We no longer need to complete a Use of Force Report for 1) unholstering/carrying a firearm; 2) unholstering /carrying a taser; 3) carrying an impact weapon.”
Additionally, in conducting a review of New York State Penal Law 35.15 (1) and (2), which focuses on the “Justification (for the) Use of Physical Force and Use of Deadly Physical Force in Defense of a Person”, no legal justification is evident in the statute which dictates use of force reporting when an officer’s firearm or other prescribed weapon is withdrawn from its holster. And neither does Penal Law 35.15 prohibit pointing said weapons and then ordering completion of a Use of Force Report for so doing.
The New York State Division of Criminal Justice Services (DCJS) in 2020 established a model policy for the use of force by police officers. It is careful to point out, however, that the policy/standards “are not intended to be an exhaustive recitation of state and/or federal legal framework governing use of force. The policy is designed to provide guidance to individual agencies as they develop their own use of force policies”.
That being said, the DCJS advises that a departmental use of force report should be completed under the following conditions:
1. Use of force that results in a physical injury
2. Use of force incidents that a reasonable person would believe is likely to cause injury
3. Incidents that result in a complaint of pain…except minor discomfort from compliant handcuffing
4. Incidents where a conducted energy device was intentionally or accidentally discharged after being displayed
5. Incidents where a firearm was discharged at a subject
Nowhere in the NYS DCJS Use of Force Model Policy ten page publication does it mention or even or suggest completing a use of force report for unholstering and/or pointing a firearm, a taser, or other weapon with consideration given, but not limited to:
1. The severity of the crime or circumstance
2. The level and immediacy of threat or resistance posed by the subject
3. The potential for injury to citizens, officers, and suspects
4. The risk or attempt of the suspect to escape
5. Officer/subject considerations such as age, size, relative strength, skill level, injury or exhaustion, and the number of officers or subjects
6. Other environmental conditions or exigent circumstances
Modification of the Department’s Use of Force requirements as suggested below
simplifies possible varying actions by responding officers, for example, where one officer or more may make a weapon readily accessible while others may not, thus reducing the conflict created by the present policy in these instances, and limiting the potential for litigation by plaintiffs/complainants when an officer, or officers’, response on scene is different from each other and thus would not comply with stated policy.
The Supreme Court has recognized that “Police Officers are often forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force necessary in a particular situation… a particular use of force must be judged from the perspective of a reasonable officer on the scene”. {Graham, 490 U.S. @ 396 (1989)} And the officer’s judgment must not be impaired in those situations by their thinking about complicated policy dictates and by extraneous, unnecessary written justifications.
Officers should not have to wait until a subject threatens or exhibits a weapon for use against someone because the time it takes to react to that event is absolutely enough time for an officer or a civilian to be killed or disabled. And this has happened in a multitude of life changing situations where an officer was unable to even unholster his/her own weapon. Having to report every time a taser or firearm is unholstered is the product of conscious and unconscious officer hesitancy and thus, it places lives in jeopardy and can cause communities to grieve. There is no arguing that accessing one’s weapon in suspicious situations is a smart tactical decision that clearly decreases reaction time, quickly reduces the violent potential of the offender, and renders situations safe and controlled. Such action should not be impeded by the thought of having to do pages of justification when no weapon discharge or actual force takes place.
The FBI Academy's Firearms Training Unit in Quantico, Virginia has conducted a multitude of firearms and officer response studies, some of which is incredibly impactful in terms of law enforcement officers’ safety and the distraction of present use of force reporting. Some of what is most pertinent is that it takes one quarter (1/4) of a second to one-half (½) of a second to respond to visual stimuli, that is, an officer first observing a subject with a gun and bringing it to bear on an officer. It takes another 1.5 to 1.75 seconds to remove a firearm from a friction only holster (Level One) for experienced, well-trained officers and up to two seconds for newer officers. Level 2 holsters have a snap or a button which must be maneuvered before weapon retrieval. For common police Level 3 holsters, those with a hood guard, a hood, and a thumb release, it can take up to three seconds to respond at ready gun to a lethal threat. (For information, the Town of Newburgh Police Department officers are issued Level 3 holsters.)
Reaction to an adversarial lethal threat, even when an officer is at “ready gun”, still affords a subject, at a minimum, a one half second advantage such that the subject will expend rounds quicker than a reacting officer.
If you add to the time sequences noted above, the conscious or unconscious hesitation due to the inherent distaste of the paperwork which follows, or the absence of drawing a weapon altogether prior to a potentially life-threatening event taking place, officers are at even more of a disadvantage. Eliminating the requirement for report writing for merely removing a weapon from a holster (and even pointing the weapon) where there exists a reasonable chance that an imminent use of force might possibly be used against him/her, (as does the FBI, the NYPD, and now the Middletown, New York Police Department) tends to even the field a little more, erases the “what if” questions post shooting incidents, and can obviously protect and save law enforcement and civilian lives.
As such, and pursuant to the above considerations, the following are recommended as alterations and/or additions suggested for Departments which have implemented Use of Force Reporting for officers employing weapons in perceived and possibly dangerous situations:
An officer may draw, exhibit, and/or point his/her firearm, taser, baton, or pepper spray, without having to complete a Use of Force report whenever he/she intuitively perceives that danger to him/herself or others is, or can be present; or there is reason to believe that circumstances exist that may justify the use of force or increase the likelihood that a potential arrestee can be brought under control more quickly without further risk to officers or civilians. Though it is not actually necessary to articulate in the stated policy, guidance is given below, and such circumstances include, but are not limited to:
a. Approaching a subject whereupon the subject is the initial aggressor, being non-compliant, and/or exhibiting furtive, out of the ordinary, or inexplicable gestures, threats, or behaviors;
b. The potential subject being known to have a reputation for violence, or had engaged in prior violent acts;
c. Approaching a subject, and who, by his/her behavior or history, may be thought to have a weapon so as to protect his/her possession of valued illicit drugs/narcotics or stolen property;
d. Conducting vehicle stops where windows are tinted and/or the view of occupants’ hands are obscured or obstructed;
e. Conducting building searches;
f. Responding to calls for assistance in residential, domestic, medical, or psychiatric situations until it can be determined that all individuals present are not in possession of a weapon or have immediate access to a weapon;
g. Confronting a subject incident to arrest;
h. Confronting a subject who ignores officers’ verbal commands, is non-compliant, may be armed and dangerous, and/or is moving about in a manner whereupon he/she can retrieve a weapon and attack civilians or officers, and/or harm him/herself;
i. Conducting other high-risk vehicle stops where there is reasonable concern that an occupant’s own use of force could be imminent and could be used against the officer or others.
(For some in the more inexperienced camps, the word “pointing” can be a slight bone of contention but is easily remedied, if needed, by the weapon being brought to a “ready gun” position whereupon it is withdrawn from the holster and maintained at an angle whereupon it is not directly in a lethal position but with the barrel facing slightly downward toward the ground until it can be determined that its use is required or the threat to the officers or civilians is mitigated.)
Should situational awareness increase the officer’s concern for safety, the officer’s withdrawing of a weapon from its holster is a tactically appropriate decision, and unless it is discharged, as is consistent with other law enforcement agencies and the New York State DCJS Model Policy (p. 6), no Use of Force report should be required.
About the Author
Presutti works for the Town of Newburgh Police Department in New York after being employed as a Special Agent of the FBI for 25 years and then then via contract for the FBI/DOJ as a Senior Financial Investigator for another 12 years. His work involved primarily major organized crime, drug, and violent crime enterprise investigations and some quite large white collar financial cases, with a large portion of the first three noted programs in an undercover capacity. He worked in the New York, New Orleans, and Cincinnati FBI offices but traveled about the country as an undercover agent then gave training throughout FBI offices domestically before being tasked to do police training at the International Law Enforcement Academy in Budapest, Hungary, in the USSR, in Estonia, and other locations.
Vincent Presutti
Presutti works the Town of Newburgh Police Department in New York being employed as a Special Agent of the FBI for 25 years and then then via contract for the FBI/DOJ as a Senior Financial Investigator for another 12 years. His work involved primarily major organized crime, drug, and violent crime enterprise investigations and some quite large white collar financial cases, with a large portion of the first three noted programs in an undercover capacity. He worked in the New York, New Orleans, and Cincinnati FBI offices but traveled about the country as an undercover agent then gave training throughout FBI offices domestically before being tasked to do police training at the International Law Enforcement Academy in Budapest, Hungary, in the USSR, in Estonia, and other locations.
