Limits to State Authority to Use Force: Why "Ask-Tell-Make" Is Wrong, and What to Do About It

June 13, 2021

Since I started defending police officers against civil rights lawsuits six years ago, and having taught police throughout California about de-escalation and constitutional principles since July of 2019, I have heard of this "Ask-Tell-Make" thing. As an advocate for law enforcement I am compelled to share with you that Ask-Tell-Make is dead, and arguably never should have been taught in the first instance.

Police use Ask-Tell-Make as a decision making process. The problem is, Ask-Tell-Make is incompatible with the 4th Amendment of the U.S. Constitution, and even a vague understanding of federal case law makes that obvious. Ask-Tell-Make is not an appropriate decision making process in our system of limited State power and protected individual liberties. Ask Tell Make is the wrong tool for law enforcement and should be dispensed with post-haste.

In its place, we must root firmly the skill of reading, understanding and applying federal case law. By example, police officers spend hundreds of hours on the firing range to keep up their shooting skills and zero hours reading federal cases regarding officer involved shootings. If you are a police officer in any of the states within the Ninth Circuit and you have not read (and re-read several times) Reese, Zion, Longoria, Nehad, and Lam, at a minimum, you do not know where the limit lies on your authority to use lethal force. Period.

Case law is the only way to approach use of force.

 How to View Use of Force Through a Constitutional Lens

Fundamentally, there is a really big difference between acknowledging “police have limited powers” and discussing “this is where the limitation lies in this circumstance and why.” Federal case opinions answer the fundamental question of whether force is objectively reasonable by showing us where and how the 4th Amendment constrains the State’s authority to use force.

The boundaries around State power are meant to protect individual rights. Officials who do not know where the boundaries are risk obliterating them, endangering individual liberty and therefore free society as a whole. These are also expensive mistakes, raising issues of civil liability, costly litigation, and diminished public credibility. So, it’s worth reading some case opinions. 

 When an officer uses force, the question becomes whether that amount of force was objectively reasonable given the particular facts and circumstances in that instance. In litigation we answer that question by applying those facts and circumstances to the landscape of existing federal case opinions. If the court is unable to grant summary judgment for the officer, then we proceed to trial, and a jury resolves that question.

Whether force was objectively reasonable is a factually intensive question. In the midst of violent combat, the law does not demand officers use the least amount of force when faced with an immediate threat to their safety or the safety of others. But absent an immediate threat, when the officer is not faced with violent combat but rather some form of verbal non-compliance, or passive physical resistance, how should the officer determine whether and what amount of force is objectively reasonable? This is no easy question, but it is the essential question we must answer, and answer it in such a way that we still have men and women willing to serve the ranks of police departments in our communities.

Which is why I think we should train and teach officers how to find where the limits lie to their authority, instead of teaching and training arbitrary decision making processes. Ask-Tell-Make never should have been taught in the first place.

 Ask-Tell-Make: The Incorrect Analytical Framework

Ask-Tell-Make goes like this, e.g.: an officer has a suspect detained for an investigatory stop under reasonable suspicion. The officer (1) politely asks to suspect to do something (e.g. sit down, stand up, move here, and so on), (2) if the “Ask” is ignored, the officer gives a stern command i.e., “Tell”, and (3) if the “Tell” is ignored the officer is trained to go to “Make”, i.e. lay physical hands, or use tools like pepper-spray. Scenario 2: officer has a suspect along with bystanders. To control the scene, officer asks bystander to move, bystander refuses, officer tells bystander to move, bystander refuses, officer then uses force to make bystander move.

Ask-Tell-Make does wonders to eliminate hesitation and indecisiveness – things that will get people hurt or killed. That’s a good thing. But, this process fails to yield consistent, repeatable constitutional uses of force because it prompts an officer to initiate a use of force confrontation if met with mere verbal non-compliance. Doing so blows past binding federal case law which establishes limits on when officers may use non-trivial force, and thus raises serious questions of civil liability with potentially very costly repercussions.

In Rice v. Morehouse, 989 F.3d 1112 (9th Cir. 2021), the Ninth Circuit reminded at page 1125 that, “[l]ong before Rice's arrest, we clearly established one's right to be free from the application of non-trivial force for engaging in mere passive resistance.” Rice then cites previous cases like Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012), and Gravelet-Blondin v. Shelton, 728 F.3d 1086 (9th Cir. 2013). Then the court discusses those cases and their application to the facts in Rice’s lawsuit. Going further, Nelson and Gravelet-Blondin are based upon additional case precedent, going back twenty years to Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001). In Deorle the court helpfully pointed out, “A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury.” Deorle v. Rutherford, 272 F.3d at 1281.

How the analysis turns out depends on the facts. Rice involved a forward leg sweep stemming from a traffic stop after the driver, Rice, refused to hand over his license and registration. Davis involved a subject struck in the eye with a pepper-ball launched by officers contending with a crowd. Deorle involved an officer who shot a beanbag at a suicidal man without warning, which dislodged the man’s left eye and fractured his skull. Gravelet-Blondin involved an officer who tased a bystander to an arrest after the bystander asked the officers what they were doing. In each new case, the courts synthesize their analysis with the facts and analyses from prior cases, and in so doing make clearer where the limits lie to State authority regarding force. To be ignorant of the case landscape, only makes excessive force more likely. This deserves attention and corrective measures.

The Correct Way: Threat Assessment

Constitutional use of force, very simply, derives from threat assessment. The government’s interest in using force to intrude into the 4th Amendment protection is most justified when the officer is responding to an immediate, significant threat. Whether a police officer’s use of force is objectively reasonable is subject to the balancing test set out by Graham.

           There are three steps to the Graham analysis:

 (1)  Consider the “type and amount of force inflicted to establish the severity of the intrusion on the individual's Fourth Amendment rights.”

(2)  Consider “the government's interest in the use of that force”; and,

(3)  Then “weigh the gravity of the intrusion on the individual against the government's need for that intrusion.” (see, Lam v. City of Los Banos, 976 F.3d 986, 997 (9th Cir. 2020)).

The government’s interest in using force stems from several factors, principally, (1) the severity of the crime, (2) whether the suspect poses an immediate threat to the safety of others, and (3) the level of resistance. Crime Threat Resistance. I call this the “Graham Tri-Pod”. Every officer should be able to build the Graham Tri-Pod. The most important factor in the Tri-Pod is whether the suspect posed an immediate threat to anyone's safety. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)). “The use of deadly force is only reasonable if a suspect poses a significant threat of death or serious physical injury to the officer or others.” Nehad v. Browder, 929 F.3d 1125, 1132-1133 (9th Cir. 2019).

Moreover, the threat must be articulable, based on objective facts, and not conjecture. “[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Deorle, at 1281. By the way, this “fear of future harm” concept is codified by California’s recently amended Penal Code § 835a(e)(2) which defines an “imminent threat” as one which the suspect poses the present (1) ability, (2) opportunity, and (3) apparent intent but that the fear of future harm, no matter how great the threatened harm, and no matter how likely it is to occur, is not enough, in isolation, to form an imminent threat. As an aside, threat assessment implies strong pre-incident planning, having contingent measures available, making numerous tactical adjustments once on the scene, all things officers must do to afford themselves an opportunity to safely and effectively assess the threat situation before committing to the confrontation.

I encourage officers to print out and keep handy their federal circuit court’s model civil jury instructions for use of force. For example, in the Ninth Circuit, refer to Instruction 9.25. Have the jury instruction handy when writing reports because the elements set forth in the instruction are the elements which determine whether there was sufficient government interest in the force used, and so it should be used as a guide during report writing. Continuing this reverse engineering exercise, the instructions reflect the case landscape, so we must also read the underlying case opinions to understand why the instructions are the way they are.

Consider that in 9.25 element #10 it states that a jury may consider evidence of whether the officer should have known the suspect they confronted was “emotionally disturbed”. This instruction originates with the Deorle opinion, and has been addressed in other cases such as Lam v. City of Los Banos, 976 F.3d 986 (9th Cir. 2020), Vos v. City of Newport Beach, 892 F.3d 1024 (2018), Longoria v. Pinal County, 873 F.3d 699 (2017), Crawford v. Bakersfield, 944 F.3d 1070 (2019), Lal v. California, 610 F.3d 518 (2010) and Glenn v. Washington County, 673 F.3d 864 (2011) to name but a few. A basic familiarity with the “emotionally disturbed” suspect case opinions listed here would very clearly reveal to any officer that executing a tactical plan involving the potential for a forced Ask-Tell-Make confrontation with a mentally ill subject risks an unconstitutional use of force. How come? Case law tells us so.

Killing Off Ask-Tell-Make

Let’s dispense with Ask-Tell-Make, finally. Ask-Tell-Make has no legal basis because the law as instantiated prohibits officers from using non-trivial force against passively resisting subjects and bystanders at the scene absent an immediate threat.

Succinctly put in Mena, “the law was clearly established [by 2008] that when there is no resistance, non-trivial force in response to passive bystander behavior would be unconstitutionally excessive.” Mena v. Massie, 2019 U.S. Dist. LEXIS 18935, *6-7, 2019 WL 467591 (Dist. Ariz. 2019), discussing Gravelet-Blondin. Gravelet-Blondin has been cited approvingly 36 times by courts inside and outside the 9th Circuit for the proposition that mere passive resistance will not justify a non-trivial use of force (handcuffs, for example, are trivial, anything more than handcuffing becomes a meaningful personal intrusion, especially if it results in injury, see Cortesluna v. Leon, 979 F.3d 645, 653-654 (9th Cir. 2020). Ninth Circuit cases such as Gravelet-Blondin, Deorle and Mattos are in accord with other federal circuit opinions, such as, Morris, "Graham establishes that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest." Morris v. Noe, 672 F.3d 1185, 1198 (10th Cir. 2012) (citations in the original omitted, emphasis added), and Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892, 899-900, (4th Cir. 2016) “Even in a case in which the plaintiff ha[s] committed a crime, when the offense [i]s a minor one, we have found that the first Graham factor weigh[s] in plaintiff's favor;” and Garcia v. Dutchess County, 43 F.Supp. 3d 281, 293 (S.D.N.Y. 2014) [“a jury could reasonably find that at the time that Sistarenik tased Healy, Healy's resistance was largely passive; for that reason, the third Graham factor offer[s] little support for the use of significant force against him."]

So, absent an immediate threat, or active resistance (which is usually accompanied by physical violence, which satisfies the immediate threat element anyhow) the amount of force an officer will need to literally “Make” someone physically submit will almost certainly be non-trivial and therefore will more than likely blow past the limit line of objective reasonableness. Ask-Tell-Make misses Crime Threat Resistance. And that miss is not insignificant.

My litigation and teaching experience leads me to conclude that officers are misled to assume that Ask-Tell-Make provides a built-in justification to use force, including less lethal weapons like pepper spray and the taser, in order to gain compliance. This does not mean officers should abandon personal safety. And this does not mean the law prohibits officers from using force to overcome resistance. But even if an officer instinctively makes the right decision, accidental correctness isn’t good enough.

Officers should use force in response to threats. Period. Full stop. Thus, officers should train, rehearse, and plan to create time and distance in order to slow the decision making process, allowing for officer safety as the situation develops and can be observed. A threat can go from potential danger to actually lethal danger in less time than an officer can react. The fact that this is true does not justify the use of non-trivial force to preempt a future potential threat, but it should dictate things like controlling distance before initiating contact. Officers must train to and act accordingly to their tactical realities but within the construct of the law. This means department leadership need to get creative, e.g. restructuring the solo patrol officer model (the solo officer is the least resourced asset) opting instead to train small units at the patrol level of four officers per team (3 officers, 1 team leader) and three teams per squad (plus a squad leader). Added bodies on scene means more resources, more control, and better officer safety. Team up task organized units with mental health counselors and/or social workers to handle situations with mentally unwell subjects. Departments also need to decide which calls to respond to and which to ignore as resources will be harder to spread around. This is balancing the needs of the community with the resources available, which will differ greatly from locale to locale. Whatever the solution of the future looks like, the point is that currently acceptable practices like Ask-Tell-Make are totally outside the boundaries of the constitution.

What we are seeing in society today with regards to police use of force is the consequence of aggregated instances where the State overstepped its boundaries and unreasonably seized an individual by excessive force. To correct this, or to address it in the first instance is to reacquaint ourselves with the 4th Amendment and 4th Amendment case law. Decisions made from threat assessment, not arbitrary processes, bring the officer’s decision making process in-line with the analytical framework of federal case law. We also need to stop forcing officers to win tactical transactions (asking, telling, and then making) at the expense of losing the strategic objective (serve the community, protect the weak, provide legitimacy).

In other words, Ask-Tell-Make is dead, and we're better off for it.