Blue Line

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NOT ALWAYS BLACK AND WHITE


November 17, 2015
By Harry Black

Very often, it seems, police officers are required to use force in the lawful execution of their duties, which should come as no surprise to almost everyone.

In some cases the force is minimal – a soft, empty handed technique, for example, may achieve the desired effect – but other times it may be of the most extreme and lethal variety, such as an officer using their firearm to protect against serious bodily harm or death.

Officers are trained in the use of force from the very beginning of their police training. Having regard to its importance in their professional lives, police services provide ongoing training, which is, of course, essential considering the possible consequences of using force.

Force may, in many instances, be used at night or in a near deserted locale. In other cases, it may be required in areas readily seen by the public, but circumstances develop so rapidly and unexpectedly that the untrained observer simply does not perceive and cannot properly evaluate them.

Those who deal with these kinds of issues on an ongoing basis are often struck by how frequently apparently neutral, otherwise disinterested witnesses describe an officer’s use of force as shocking, excessive, unnecessary, gratuitous violence, cruel and/or police brutality.

Very often an officer is charged criminally or under the Police Services Act and a court evaluates and assesses their actions. Unfortunately he/she soon discovers that, while they have been trained in the use of force, the judge or justice trying the case hasn’t and has never heard of the ‘use of force wheel.’ This, from the officer’s perspective, is obviously quite alarming. It is obvious to those of us who regularly defend police officers that most crown attorneys are often equally unschooled.

It was against this backdrop that I was very pleased to have recently received a decision in an Ontario Police Services Act disciplinary prosecution concerning a young officer who had been charged with “unnecessary and unlawful exercise of authority” by his own police service.

The officer, who I will simply refer to as Constable W, was on a paid duty one weekend evening in one of the many Ontario communities proudly boasting a college, university or other educational institution. This particular downtown core featured one area containing a significant number of bars and clubs.

It was a warm summer night. At closing time a crowd approaching 2,000 or more young people, few if any sober, spilled out onto the street. A fight broke out, a time honoured tradition after ‘last call’ and, of course, the inevitable happened. W and his escort were alerted by a cab driver and arrived to see an intoxicated young man apparently intent on inciting a violent altercation: he approached his victim and, without warning, punched him hard in the face. Like his attacker, the unsuspecting victim, who was sitting on a flower pot attempting to eat a chicken sandwich, had drunk far too much.

As things later turned out, there appeared to be a history to the matter: the aggressor felt his victim had acted in a most ungentlemanly manner toward his current girlfriend, who he believed had once had a romantic liaison with the victim. The aggressor determined that he would teach the unfortunate soul a thing or two about proper male-female relations.

Thereafter things unfolded quickly. In short order, the aggressor resisted police suggestions that he settle down, move along, go home and the like. Finally he attempted to shove the officers aside. After repeated warnings the officers were left with no alternative but to arrest him for public intoxication, assault and resisting arrest. He resisted as they attempted to handcuff him and vocal protests about his innocence and the allegedly brutal police behaviour predictably aroused dozens of equally intoxicated celebrants.

One of the aggressor’s friends decided to assault W’s escort, who, in attempting to apprehend and take control of his assailant, left W on his own with his arrest, who was becoming increasingly aggressive.

Fearful for the safety of his partner, who was now out of sight in an alleyway, W attempted to place his arrest, who by this time was handcuffed, on the ground so he could find his escort. The man repeatedly resisted and W finally used sufficient force to pull him backwards onto the ground. The man claimed he struck his head on the pavement, cutting his ear, and that the officer had assaulted him. A crowd of onlookers became extremely vocal and apparently upset at witnessing this use of force.

For other reasons this incident became front page news in the local media. In the resulting public uproar, the chief ordered a hearing into allegations of excessive force. It came as no surprise that the officer was quickly found not guilty, considering the credibility of the prosecution witnesses, but what was most gratifying were some of the comments the hearing officer, retired Superintendent R.J. Fitches, made in his decision. I can do no better than to quote from it:

<In situations such as this when a police officer finds it necessary to apply some amount of force to facilitate the arrest of a person, the picture that emerges for the onlooker is one that is not very attractive and to the untrained eye smacks of brutality. Techniques such as kicks and strikes are alarming to witness… Such is all too often a part of the task of making an arrest, however.

It has been stated that policing can sometimes be an ugly occupation. The application of force is one such unattractive facet of policing.

In situations such as this, onlookers simply cannot be expected to recognize the nuances of what it feels like when the officer experiences resistance in a person that he or she is arresting. The subtle twitch or jerk of the arms, legs, hands or shoulder is virtually invisible to the onlooker but is extremely telling to the arresting officer. Those sometimes minuscule changes in the tension of the arrestee’s body are the important signals that put the police officer on notice that he or she is about to experience some degree of resistance and had better be prepared. The officer’s reactions, therefore, can frequently be viewed as happening without cause and characterized as gratuitous…

If one were to ask whether this was a ‘textbook’ grounding and/or arrest, one might be hard-pressed to say that it was. Nevertheless we cannot and must never perform exploratory surgery on situations such as this in the calm, methodical, well-lit arena of the hearing room.>

Those comments should, in my view, be required reading for anyone who is ever called upon to judge police use of force.

(Source: Blue Line Magazine January 2006)

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Harry Black can also be reached at 416 860-9400 or E-mail hblackqc@bellnet.ca.