The Shakedown by National Institute for Jail Operations (NIJO)

Episode 5: Use of Force and the Importance of Documentation

June 01, 2022 Aaron Dawson | National Institute for Jail Operations (NIJO) Season 1 Episode 5
The Shakedown by National Institute for Jail Operations (NIJO)
Episode 5: Use of Force and the Importance of Documentation
Show Notes Transcript

In this episode, Warden Dawson, continues the topic he's covered during the past two podcasts and finishes off with the importance of documentation when force is used.  

(Published June 1, 2022)

Copyright 2022.  National Institute for Jail Operations (NIJO), Aaron Dawson, The Shakedown Podcast.  All Rights Reserved.  

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This podcast may not to be distributed without written permission by NIJO.  The information contained herein shall not be construed as legal advice.  Listeners should always consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

The Shakedown is brought to you by The National Institute for Jail Operations (NIJO).

Welcome back. I'm Warden Dawson and this is The Shakedown. I'm glad to have you with us.  Today I want to continue and hopefully finish up our talk on use of force.  We talked about in the first episode on use of force, the fact that we have a liability to the uses of force that we have to do as a part of being a corrections officer is going to happen. And then we talked about last time, the standards the Supreme Court have given us has given us to, to base whether or not our use of force is reasonable. These are the standards that the courts are going to use. So therefore, it's a good idea, let's get ahead of the game, and let's justify our use of force based upon those standards. We said that the tests, the standards they've given us, were the sadistic and malicious test and the way we implement that as we use those five factors, that Supreme Court has given us:  

  1. The threat perceived by the responsible officer; whether in light of that perceived threat, 
  2. It was reasonable to infer that force was necessary. I saw I heard whatever the case may be, I realized this was going on. And it's reasonable to infer that I'm going to have to respond, I'm going to have to do something about that. 
  3. That whether efforts were made to temper the severity of force, that I have the opportunity to use a lower level of force-- that I tried officer presence, that I tried verbal commands, that I tried articulation of consequences, that I try soft hand tactics, etc., etc.  Did I make the effort, if possible, to use a lower level of force? 
  4. The amount of force used in relation to the need of force-- do those lineup?  The amount of force that I use, does it line up with the perception of the need for force that is there.
  5. And then number five, whether the injury suffered, if there were any injuries, whether those injuries suffered by the prisoner were of greater severity than the circumstances would justify.  Do those line up, and if he or she was injured does it line up with what I said the amount of my force that I needed to use was used.  


 02:27

So today, we want to talk about is--the use of force is over, we're done--the inmate is secured and they've been checked by medical. We're done with the use of force, and everybody's okay. We've got it cleaned up--so forth and so on.  Now what? Well, for many of us, now, the hard part comes into play.  Usually with uses a force, it's a quick decision--"I see the need, I gotta run in there, I gotta do something..."  And the process maybe takes a matter of seconds, and the situation is over. Well, now the real work begins. And that real work is documentation.  

 

03:03

There is probably not a greater area in corrections in which documentation is more huge, than when it involves a use of force.  IT IS ABSOLUTELY IMPERATIVE that we document, and document well, our uses of force. To neglect that, is to ask for the responsibility and the liability that comes with those uses of force.  We want to implement that immunity that we have, as public officials, we want that to happen, we want that to be on our side.  So that when the courts look at it, they can say, "Look, Warden Dawson, he's a corrections officer. He's a law enforcement professional. He's responsible for the safety and security of that facility. He's responsible for the care, the custody, and the control of those inmates, and he had to do this to maintain those standards."  We want that immunity to apply, and one of the best ways we can show that that immunity should apply is in our documentation. 

 

04:03

So, let's talk about that documentation. The courts see that force is a legitimate option if an officer perceives a substantial threat to the safety, the security, the order, the discipline, the control, or any other legitimate penological or jail interest.  The court understands that use of force is going to be a legitimate option. But here's the deal, the courts weren't there--they didn't see what we saw, they didn't hear what we heard, they weren't in the dorm or the housing unit or the pod or, or whatever term you want to use, they weren't there.  And so, they don't know what we saw, they don't know what we heard, they don't know those things that we considered when we decided to use force. It's our job to paint the picture, if you will, and show them what we saw, explain to them what we heard, explain to them, and help them understand our perceptions and the reason that we felt like it was necessary to do whatever it is that we did. 

 

05:09

So, let's talk about some things that we can consider and put in our documentation so that the courts can understand why we did what we did. The first could be--this inmate that I was involved in, or you were involved in, an altercation with--has that prisoner, has that inmate ever attacked or attempted to attack an officer?  If I had to use a high amount of force in dealing with an inmate, the level of justification is going to have to be equally as high.  Well, if I know that that inmate has a proclivity towards assaulting or attacking officers, if given a chance, and that's in my mind--I'm going to respond in preparation for that.  Does that inmate have a tendency to behave in a violent or threatening or aggressive manner? I'm not going to go in necessarily expecting to be able to just use officer presence or verbal commands, because every time I deal with this inmate, he's violent, he's threatening, and he's aggressive. So, I went in expecting that to happen and prepared for that. Is that inmate insubordinate? Is he refusing normally or regularly to submit to legitimate orders and authority? Is that something that he makes a practice of, or he did in this situation? I need to make sure I articulate that.  Is the inmate damaging equipment or county property? Is that what's happening? Well, I needed to make sure I articulate what he was doing, how he was doing it, how that presented a risk, and therefore, why I used force.  

 

05:16

Was the inmate attempting to escape custody?  If that's what's going on, I need to make sure that I articulate, "Hey, this guy was trying to break out of jail", or "He was trying to run from a work detail", or "He was trying to escape", and therefore, I had to use force.  Was the inmate trying to incite other inmates to engage in disorder or to be insubordinate, or to disobey commands? Is that what was going on? Well, that inmate himself may not have been aggressive, but if he was the one, inciting others, he was the mouth, so to speak, that was getting everybody else worked up, I'm going to have to deal with him. And so if I ended up having to use force, because he was the one inciting, I need to make sure I'm very clear about what he was saying, what he was doing, what I was seeing and feeling in that housing unit or that dorm--the intensity level, the aggression level was growing, and so therefore, I had to use force. I need to articulate that.

 

07:39

The knowledge that I may have, or that you may have, of the prisoner's history,  If I have dealt with this inmate numerous times, and every time I have dealt with him, or the majority of the time that I've dealt with him, he's been combative, he's been aggressive, he's been violent, he's been disruptive--I know that going into it. And that was part of the reason why I addressed him or dealt with him the way I did.  Well, the courts need to know that.  I need to maybe articulate some of those events, or maybe say, you know, the last six times that I've dealt with him as such, and so he's behaved this way. And so I came in expecting that to be the case.  

 

08:17

Does the inmate have some known fighting skills? You know, this is a county jail here that I'm the warden of, and so you have citizens of all walks of life, and we have some military veterans that have come through our facility? Well, these are folks that were trained in hand-to-hand combat, they have have a skillset that goes beyond the normal citizen.  If I know that, if I know that individual participates in martial arts, or maybe they participate in some kind of weapons training, or whatever the case may be. If I know they have those skills, I'm gonna have to approach them a little differently.  I may have to approach them a little more aggressively than I would the average inmate, if you will. I need to articulate that, based on the fact that I know that inmate, so and so, is as a black belt in jujitsu, I acted accordingly.  

 

09:11

Did I gain, or you gain, some intelligence or other information concerning the possibility of violence. If I know this dorm is about to break out into riot, I'm going to come in a little more aggressively than I would if I had one inmate who was disgruntled because he didn't like what was served on the lunch tray.  So, did I get some intelligence, let them know, "Hey, this is fixing a break off, and it's fixing to be a bad deal, so I came in and I behaved this way." The size of the prisoner compared to the officer--that's a big deal that matters. If I'm 6'1", and just shy of 300 lbs., I'm not going to be able to justify use of force if I'm dealing with, let's say, a 115-120 lbs. female.  It's going to be hard for me to justify a great deal of force just because of the size differential. But, if you reverse that--if you have 115-120 lbs. female officer, and a 6'1" nearly 300 lbs. male inmate--that size differential puts her at a disadvantage and a risk just by being there. So that's a factor that that I have to consider, you have to consider, and you need to make sure that's in my documentation.  

 

10:24

Whether or not the prisoner had a weapon. If the prisoner had a weapon, I'm gonna deal with them accordingly. If the inmate is just sitting there and he's empty handed, and he's just upset, I might be able to get away with verbal combat or officer presence, verbal commands, articulation of consequences.  I may be able to get away with just, you know, soft hands, just trying to guide him. But if that inmate has a weapon in their hand, and they refuse to put that weapon down, they're demonstrating by their possession of that weapon, their willingness to cause harm, either to themselves or someone else, or me. And so therefore, I need to make sure I articulate that in my documentation.  

 

11:01

What about the number of prisoners involved, or maybe the number of prisoners who are there and may become involved--that's going to impact my thinking, and that's going to impact the urgency that I feel about this use of force.  I need to articulate that.   How many people were in the room or were in the dorm?  Any circumstances that could intensify or maybe increase the potential for this confrontation to escalate seriously.  If somebody has flooded their cell, and we're standing in an ankle-deep water, and everybody's just losing their mind, because there's water on the floor, and I need to get this handled, I need to get it handled now, wo we can get this situation resolved, so that we can deal with a water in the floor.  I need to make sure I articulate that in my documentation.   

 

11:50

Was the inmate involved in some things that I genuinely believe, and my perception was, as we said before, the inmate was attempting to substantially undermine discipline in order control, safety, security of the jail. Well, if that's the case, I need to articulate that in my paperwork, so that I can justify the force that I used.  Bottom line, it could be that list that we just went through, or it could be something totally different, obviously, not a comprehensive list.

 

12:21

But I, as the officer--You, as the officer, we should explain in detail. I'll say that again--we should explain, in detail, the threats perceived based on what was observed, what was heard, what was known, or was reasonably believed, at the time of the incident. We need to explain the basis for those perceptions. This inmate has been disruptive or violent or aggressive in the past, and so when I saw this, or I heard that, I was expecting the same thing. And so I responded, in this manner. We need to be thorough, and we need to explain, in detail, what our perceptions were of the situation. 

 

13:09

When I was a line officer, I was assigned to a male pod one evening. And as I'm in the tower, observing the inmates on the floor, Booking brought in a new inmate back from Booking where he was being housed.  So, the officer that brought him back, they came to the tower and they gave him the information and they went to place the inmate in the housing unit. Well, I noticed as they enter the housing unit, the officer escorted the inmate into the housing unit to take him to his assigned bunk to show him where that bunk was. I'm watching the other inmates in the dorm, and I noticed that when that inmate entered that housing unit there was an inmate off in the corner who keyed in--I mean he really zoned in automatically on that new inmate that had just walked in.  I mean, he really focused.  Well as a corrections officer, that that was something--that was a red flag that jumped out at me. And so I really focused and paid attention to what was going on there. While the officer who takes the inmate shows him where his bunk is, the inmate put some stuff down, the officer exits the unit and goes on about his business, and I'm still watching. Well, as soon as the escorting officer exited the housing unit, the inmate who was over here in the corner and was watching--who was "hawk-eyeing" this new inmate. As soon as that officer exited the housing unit and the door closed, here he comes.  He is making a beeline for this new inmate. I told my partner I said, "Man, something's fixing go down. I'm going down there". And so as I started down, I took one last glance through the window into that housing unit, and I saw this inmate (the one who was in the corner, who was "hawk-eyeing" the new inmate), he comes up behind the new inmate and he just scoops him up under his arms and just picks him up off the floor.  I thought, "Oh, goodness, here we go--these guys have got a history he owes him whatever--there's about to be a fight."  So, I holler to my partner, "Call for backup! Call the code!", and I run down there.  By the time I get out of the tower, and get around the tower, and get to the housing unit door and make entrance, the inmate  (the one who had been there before, the one doing the hawkeye), now, not only does he have the new inmate up off the ground, now this new inmate, he's up off the ground, but now he's upside down and his head is facing the floor. Immediately in my mind, I'm thinking, "This guy is fixin' to slam this new inmate on the floor headfirst--he's probably going to kill him." So I come running in, and I'm yelling as I crossed today room, "Put him down gently, put him down gently!" And I draw my Taser, which in retrospect probably wouldn't have been wise, because if I tased him, he'd have dropped him, and then the guy would have been injured.  But, at the moment, I drew my Taser and I pulled it up, and I'm hollering. "Put him down, put him down!" Well, as I'm running closer to the two inmates, I realized something--everybody's laughing, including the two inmates--the one holding the other one upside down off the floor --everybody's laughing. So, I stopped, I asked "What is going on?" Well, the end of the story is--these two guys were cousins and hadn't seen each other for years. And apparently that family had some really weird, welcoming rituals--I'm not sure what that was about. My point is this, my perception from the tower, my perception upon entering the housing unit was this inmate’s life was in jeopardy. I was about to have to take action to save this inmate's life. Now was that reality? No, it wasn't. They were just horseplayin', which, by the way, was against the inmate handbook, and I dealt with it accordingly--but my perception wasn't right. In my documentation, I had to make sure that I articulated what I thought was happening. Now, thankfully, no force was necessary. The other officers responded to the call for help. We secured these two inmates got him separated. That's when we figured out the story about them being family. But my documentation, I had to make sure that I articulated what I perceived the threat was.  And guys, that's what we've got to do.  

 

17:10

Force is going to be necessary, and we're liable for it. The courts have given us a standard, a set of guidelines to judge our use of force on, and so we can use those guidelines to say, "Yes, my force was justified."  But let's make sure, let's make sure we document well, that we use extreme detail, that we're thorough, and we cover ourselves, so that when it comes out and they say, "Hey, Officer Dawson used force.  Is it justified?" YES, it is--and here's why. 

 

17:38

Well, take these things, wear them out. I'm glad to be here with you. Godspeed to each of you. And as always, let's stay sharp, let's stay safe, let's stay vigilant.