The use of force is a hot topic within the Denver Sheriff and the surrounding community currently. Deputies claim with the increased scrutiny, at times they second-guess their decisions, putting both officers and inmates at risk.
They’re afraid a Monday- morning quarterback is going to come back and find the one rule they violated. It’s frustrating from a supervisory standpoint.
— said Sgt. Charles Denovellis, during a rally outside the Denver County Jail Oct. 6, 2014 to the Denver Post.
It is such a hot topic that Denver Sheriff Elias Diggins wrote a formal letter telling deputies the use of force is prescribed by state law and is not some moving target.
This whole discussion makes me wonder what the use of force policy is and how it can be misconstrued. Is it vague? Does it really differ from other jurisdictions? Since the Denver Department of Safety refuses to allow the Denver Sheriff to turn over copies of the Sheriff Orders and Jail Procedures then I have to go with what is available. Fortunately, the Denver Sheriff Discipline Handbook is freely available, even though the Denver Department of Safety forgets to mention it in open records requests.
— Photo Credit – Tony Webster, Flickr
What is the Use of Force to the Denver Sheriff?
Sheriff Diggins said the Colorado Revised Statutes provide the “authority” for the Denver Sheriff to use force. It looks like the Sheriff is uses state law for the basis of their actions. So let’s first look at the state law.
The Colorado Revised Statutes states:
(b) A superintendent or other authorized official of a jail, prison, or correctional institution may, in order to maintain order and discipline, use reasonable and appropriate physical force when and to the extent that he reasonably believes it necessary to maintain order and discipline, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious bodily injury.
State law indicates the reasonableness of force is when the officer makes a belief that the force is necessary. This is a subjective standard; the officers intent (whether to cause harm) and the officers belief (the action is necessary for safety) are considered by the court.
— Colo. Rev. Stat. § 18-1-703.
The Denver Sheriff then applies the state law in a manner for their officers to follow. This is where things get sticky. Apparently, the Denver Sheriff Department Orders (which the Denver Department of Safety refuses to make public) defines it one way, and the Denver Sheriff Disciplinary Handbook defines it differently. Something else is that is interesting is neither instruction in either policy manual for unreasonable force cross references the other. The Department Orders on unreasonable force does not mention the Disciplinary Handbook and vice versa. Compare the two:
It is the policy of the Denver Sheriff Department (DSD) that officers use physical force only as prescribed by the Colorado Revised Statutes (CRS) and internal Department standards to perform any legitimate law enforcement or detention related function. The amount of force used will be reasonable and appropriate in relation to the threat faced to accomplish a lawful objective. In all cases, force will be de-escalated once the legitimate function is achieved or the resistance has ceased.”
— Denver Sheriff Department Orders, 5011.1M (quoted in Letter from Sheriff Elias A. Diggins, Support for the Use of Force, to All DSD Uniformed Employees (Oct. 1, 2014)).
Use of Term “Inappropriate Force” and Its Application – All uses of force which fall outside the standards established by Departmental policy shall be classified as ‘inappropriate force.’ As such, this will help to eliminate the confusion that has resulted from using the terms “unnecessary force” and ‘excessive force’ and having to determine which of those amorphous terms applies to a particular use of force. The term ‘inappropriate force’ encompasses all of the following situations:
(a) A deputy has used force in a particular circumstance but, under Departmental policy, no force should have been used;
(b) A deputy has used a particular level of force but, under Departmental policy, a lesser degree of force should have been used;
(c) A deputy has used a particular type of weapon, device or instrumentality but, under Departmental policy, that type of weapon, device or instrumentality should not have been used or should not have been used in that manner;
(d) A deputy has used force in a particular way but, under Departmental policy, the deputy was not justified in using force in that way; and
(e) Any other situation in which the deputy’s use of force is not justified by Departmental policy.
— Denver Sheriff Disciplinary Handbook, Appendix C, at *65.
On a rhetorical note, I wonder why the Denver Sheriff felt compelled to wordsmith the term “excessive force” and replace it with “inappropriate force.” At least speaking from my own experience, I have never found a law enforcement officer who did not understand when force was unreasonable or excessive when an individual touches them. It really is not that difficult of a concept and can be transferred from an individual touching an officer, to an officer touching an individual. Although at times the the use of force can be very challenging, it seems like an elementary concept to generally weigh on an officer’s mind.
Also, I do not understand how changing the term from ‘unreasonable’ to ‘inappropriate’ helps clear up any confusion. No matter what the idea is called, the officers are still going to have to know what the law permits and what it does not. Call it ‘no bad touching’ if you must, in order to get the point across. Either way, the same legal concept is used, and the same balancing test will apply to see if is a permissible or an impermissible use of force.
It seems like with officers abandoning their post and sleeping on the job the Denver Sheriff has greater problems to worry about than what to label the use of force test.