Challenging the Ordinality of Police Use-of-Force Policy

• Author: Samuel R. Baty,Scott M. Mourtgos,Ian T. Adams
• DOI: 10.1177/08874034211038346
• Published date: 01 March 2022
• Date: 01 March 2022
• Subject Matter: Articles

https://doi.org/10.1177/08874034211038346

Criminal Justice Policy Review

2022, Vol. 33(2) 119 –147

© The Author(s) 2021

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DOI: 10.1177/08874034211038346

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Article

Challenging the Ordinality of

Police Use-of-Force Policy

Scott M. Mourtgos1, Ian T. Adams1,

and Samuel R. Baty1

Abstract

Most use-of-force policies utilized by U.S. police agencies make fundamental ordinal

assumptions about officers’ force responses to subject resistance. These policies

consist of varying levels of force and resistance along an ordinally ranked continuum

of severity. We empirically tested the ordinal assumptions that are ubiquitous to

police use-of-force continua within the United States using 1 year’s use-of-force data

from a municipal police department. Applying a quantitative technique known as

categorical regression with optimal scaling, we found the assumptions of ordinality

within the studied department’s use-of-force continuum (which is similar to many

police use-of-force continua within the United States) are not met. Specifying physical

force as a “lower” force option than less-lethal tools is associated with increased

officer injury and decreased subject injury. Our findings call into question use-of-

force continua featuring ordinal rankings for varying categories of less-lethal force.

Keywords

use-of-force, force continuum, less-lethal force, officer injury, subject injury

Most police agencies utilize a force continuum within their use-of-force policies, but

the exact configuration of these continua varies considerably (Terrill & Paoline,

2012b). Use-of-force continua are meant to provide officers with guidance on how to

take progressively forceful action (e.g., officer presence, issuance of verbal com-

mands, use of physical force, batons, pepper spray, taser, firearms) based on subject

resistance. These continua are used by police departments to specify the highest level

of force allowed for a given level of a subject’s resistance (Crawford & Burns, 1998;

1The University of Utah, Salt Lake City, USA

Corresponding Author:

Scott M. Mourtgos, Department of Political Science, The University of Utah, Carolyn and Kem Gardner

Commons Suite 3345, 260 South Central Campus Drive, Salt Lake City, UT 84112, USA.

Email: scott.mourtgos@utah.edu

1038346CJPXXX10.1177/08874034211038346Criminal Justice Policy ReviewMourtgos et al.

research-article2021

120 Criminal Justice Policy Review 33(2)

Garner et al., 1995). Although the scenarios and actions they are intended to address

are undeniably complex, these guidelines are often presented as if they are explicitly

ordinal scales (Terrill, 2005, p. 110 emphasis added): “Thus, a standard force contin-

uum ordinally ranks varying levels of force and resistance along a continuum in terms

of severity, with the explicit purpose of offering guidance on how to respond to spe-

cific forms of resistance.”

The extreme ends of force continuums—officer presence and deadly force—are

universally agreed upon. However, while officer presence and verbal commands are

“lower” levels of force available to officers than discharging a firearm, there is no

agreed-upon placement of less-lethal forms of force available to the police—namely

physical force, pepper spray, conducted energy devices (CEDs), and batons—within a

force continuum (Terrill & Paoline, 2012b). Individuals (practitioners and researchers

alike) disagree regarding whether striking someone on the head with a closed fist is a

more severe form of force than striking someone on the leg with a baton. There is also

disagreement regarding where to place pepper spray and CEDs on a force continuum,

thereby removing the need for the actual use of physical force. These are crucial,

reality-based assessments faced by line officers and their administrators, and ones that

frequently arise because many law enforcement agencies’ force continua situate physi-

cal force “below” these less-lethal compliance tools.

Our study aims to test the fit of ordinal use-of-force continua in the context of

actual police use-of-force. Conceptually, a use-of-force policy represents a theoretical

model of using force, and it makes sense to compare theoretical expectations with real-

ity. Using an administrative data set providing comprehensive coverage from a single

agency, we provide empirical evidence strongly suggesting that most forms of less-

lethal force are conceptually very similar, and those use-of-force continua that place

less-lethal force on an ordinal scale are based on questionable logic. Moreover, while

police use of physical force is associated with fewer injuries to subjects compared with

the use of other less-lethal types of force, physical force corresponds with increased

injuries to officers. This presents the following question: How should law enforcement

agencies (as well as society) balance the risks to officers or subjects when less-lethal

force is used? This question is, in part, answered by use-of-force policies.

The Legal-Policy Dichotomy

The police are the state’s primary agent of coercive force, and the police are often

called because someone observing some event believes that coercive force may be

necessary to resolve a problematic situation (Bittner, 1970; Herbert, 2006). Officers

are trained and expected to use the amount of force reasonably required to arrest

individuals based on the prevailing circumstances. The use of sanctioned violence by

the State against its citizens is in accordance with society’s acceptance of the social

contract: People relinquish their individual right of reparation in exchange for the

State’s undertaking of that responsibility (Rousseau, 1762/1968). The State enacts

laws to avoid a state of nature in which society would live in “continual fear and

danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short”