Does The Banning of Techniques Lead Towards the Introduction of Approved and Therefore Non-Approved Techniques?

Should any physical restraint technique ever be absolutely banned, regardless of the circumstances?

A recent case in New York, where an NYPD officer became the first officer convicted under New York City’s law prohibiting certain chokeholds and restraint methods, raises a much wider and potentially uncomfortable question about how we regulate the use of force.

Let me be clear from the outset.

I support accountability.

Anyone who uses force against another person should be capable of explaining why force was necessary, why the level of force used was appropriate and whether their actions were proportionate to the threat and circumstances they faced.

That principle should sit at the heart of any responsible approach to conflict management, physical intervention and restraint.

But there is another side to this debate that deserves careful consideration.

What happens when we move from identifying techniques that carry significant risk and should therefore normally be avoided, to techniques that are absolutely prohibited regardless of the circumstances?

Not All Categories Mean the Same Thing

Part of the difficulty is that terminology can become blurred.

There is an important difference between:

• Prohibited techniques — actions that legislation, regulation or organisational policy states must not be used.
• Techniques that should normally be avoided — because safer or less restrictive alternatives should ordinarily be considered first.
• Techniques carrying elevated risk — interventions recognised as presenting an increased potential for injury or other adverse outcomes and therefore requiring greater justification, safeguards and scrutiny.
• Approved training techniques — methods an organisation has selected, risk assessed and trained its staff to use within defined circumstances.
• Spontaneous actions during an unforeseen emergency — actions that may not resemble anything taught on a training course but arise because somebody is attempting to protect themselves or another person from an immediate threat.

Those distinctions matter.

Because “not trained”, “not approved”, “high risk” and “prohibited” do not describe the same thing.

And that takes us to a much bigger question.

Does an Approved List Automatically Create a Non-Approved List?

Organisations understandably want consistency.

They want staff trained in methods that have been properly considered, medically and operationally risk assessed where appropriate, and supported by policy, governance and quality assurance.

I support that approach.

But once we create a list of approved techniques, do we inadvertently create another category: non-approved techniques?

And if we do, what are the consequences for someone who uses an action that wasn’t on the approved list?

Does the fact that a technique was not taught automatically make its use unlawful or unreasonable?

Or must we still examine why that person acted in that way, what they honestly believed was happening, what options were realistically available and whether their response was necessary and proportionate in those circumstances?

That distinction is critical.

Violence Doesn’t Follow the Training Manual

Training takes place in a controlled environment.

Real violence does not.

People do not necessarily attack in predictable ways.

Individuals do not always respond to recognised techniques.

Environments differ.

Physical capabilities differ.

Size, strength, numbers, vulnerability, weapons, confined spaces and the immediacy of the threat can all influence what happens.

Sometimes decisions must be made in seconds, perhaps fractions of a second.

Someone facing an immediate threat is unlikely to be mentally scrolling through an organisational techniques manual asking:

“Which approved technique applies here?”

They are responding to what is happening in front of them.

That doesn’t remove accountability.

It changes the context within which accountability must be considered.

The Right to Protect Yourself and Others

The ability to protect oneself or another person from unlawful violence is an important principle recognised within the law.

But that right is not unlimited.

Using force requires justification.

The circumstances matter.

The nature and immediacy of the threat matters.

What the person genuinely believed was happening matters.

The level of force used matters.

That is why I would be cautious about making the broader assertion that banning a particular technique automatically removes someone’s civil or human rights.

The more useful question may be:

Could an absolute prohibition, depending upon how it is drafted and applied, potentially restrict a person’s practical ability to protect themselves or another person in exceptional circumstances?

Consider an extreme example.

A person reasonably believes that they or somebody else faces an immediate threat of death or serious injury.

The action they instinctively take to stop that threat resembles a technique appearing on a prohibited or non-approved list.

What happens then?

Should the assessment begin and end with:

“That technique was prohibited.”

Or should we also ask:

“What was happening that caused the person to act in that way?”

That does not mean that anything becomes acceptable simply because someone claims self-defence.

It means that context remains fundamental.

High-Risk Techniques Require Greater Scrutiny

None of this should be interpreted as an argument for retaining unnecessarily dangerous restraint practices.

There are techniques and positions associated with significant risks.

Organisations should identify those risks, educate staff about them, develop safer alternatives and reduce their use wherever reasonably practicable.

Where an intervention presents a higher level of foreseeable risk, there should reasonably be an expectation of greater justification for its use.

That may include examining whether less restrictive options were available, whether the danger was sufficiently serious and immediate, how long the intervention lasted, whether force was reduced as the threat reduced, and what monitoring occurred afterwards.

But there is an important conceptual difference between saying:

“This intervention carries significant risk and should normally be avoided.”

and saying:

“There are no circumstances whatsoever in which this action could ever be justified.”

That distinction deserves serious discussion.

Policy, Training and Law Must Not Become Confused

Perhaps one of the biggest risks is allowing organisational training standards to become confused with the legal test governing the use of force.

Training should provide people with safer, effective and proportionate options.

Policy should establish expectations, safeguards, accountability and governance.

Risk assessment should identify foreseeable hazards and control measures.

But none of those things can reproduce every violent encounter somebody might eventually face.

This is why a technique falling outside an organisation’s training programme should not automatically end the analysis.

There may certainly be employment, disciplinary, regulatory or professional consequences associated with departing from training or policy.

But that is not necessarily the same question as whether the force itself was legally justified in the circumstances.

Those issues need to be carefully distinguished.

Training Teaches Techniques – The Law Judges Decisions.

For me, this is the central point.

Training teaches techniques.

But good training must go much further.

It should develop judgement.

It should teach people to recognise escalation, communicate effectively, create distance, disengage where appropriate, identify preclusion opportunities, understand risk and make defensible decisions under pressure.

Because when an incident is subsequently scrutinised, the important questions should include:

What was happening?

What did the person honestly and reasonably believe?

Why was force necessary?

What alternatives were realistically available?

Why was that particular action taken?

Were the level and duration of force proportionate to the threat?

Did the force reduce or stop when the circumstances changed?

Those questions require far more analysis than simply asking:

“Was the technique on the approved list?”

Perhaps We Are Asking the Wrong Question

This is not an argument against accountability.

It is not an argument for dangerous restraint techniques.

And it is certainly not an argument that people using force should be able to do whatever they choose.

Quite the opposite.

The greater the potential for harm, the greater the need for appropriate training, governance, scrutiny and justification.

But in our understandable desire to reduce harm, we should be careful not to create systems so prescriptive that they fail to recognise the unpredictable reality of violence and the difficult decisions people sometimes must make to protect themselves or somebody else.

Perhaps, therefore, the question should not simply be:

“Was that an approved technique?”

Perhaps the more important questions are:

• Why was force necessary?
• Why was that particular action taken?
• What alternatives were realistically available? Was the response necessary and proportionate in the circumstances actually faced?

Because ultimately:

Training teaches techniques.

The law judges decisions.

And understanding the difference between the two may be fundamental to creating safer, more accountable and more defensible approaches to the use of force.

If you would like to know more, contact me at: https://nfps.info/contact-nfps/