In recent years, a tenth principle is beginning to be taught alongside General Fuller’s original nine. It is called legitimacy.
The principle of legitimacy counsels that in all our actions the potential injury to public and political confidence and support for us must be considered. Failing to take this principle into account may lead to ultimate defeat regardless of the immediate outcome of your battle. The Vietnam War was not lost in any battle on the plains of Southeast Asia. It was lost on the battlefield of public opinion in North America. The leaders of North Vietnam wisely recognized this was the weakness of the United States military. Their strategy was to fight a war of attrition.
Militarily, the 1968 Tet Offensive was an overwhelming defeat for the North Vietnamese, but strategically it was a brilliant success. Tet is widely recognized as the turning point in the war where whatever serious support for American combat efforts in Southeast Asia collapsed in the United States. This also led to the end of Lyndon Johnson’s presidency and the eventual victory of North Vietnam. All American military efforts ever since Vietnam have had to pass the legitimacy test.
During the same decade when the American military was becoming acquainted with the principle of legitimacy, American law enforcement was being introduced to it. Police response to the Civil Rights movement in the South and riots throughout the rest of the country called our tactics and methods into question. There is one word in American corrections from that time that shined the spotlight of legitimacy on what we do behind the walls of our jails and prisons: Attica. This scrutiny of law enforcement has only intensified ever since. The Rodney King incident took this to a new height and the ever present eye of technology challenges many uses of force today even before law enforcement executives are aware that they happened.
Taking the issue of legitimacy into consideration is not just some liberal, feel good notion that now compels us to weigh all our tactical decisions against the need to maintain good public relations or assuage timid politicians; it is now also the law. This, as much as anything else, makes this a principle that must be recognized as possessing the same veracity as Fuller’s original nine.
The Supreme Court put all jails and prisons on notice in this regard over twenty years ago in the Hudson v. McMillan decision (503 US 1). Speaking for the Court, Justice Sandra Day O’Connor said that when determining whether force used by correctional personnel was excessive or not a five part test would be applied: What was the need for the force? How much force was used? What was the extent of the injuries inflicted? What was the threat posed for a reasonable corrections officer? And lastly, was some effort made to temper the situation before the use of force was employed?
When it comes to the use of force, our actions must always be legitimized and in court decision after court decision we are being asked to temper our uses of force unless it is impossible not to do so. For a more recent case illustrating this point, see Bryan v. McPherson, 630 F.3d 805 (9th Cir. 2009). This case not only declared that the use of electronic control devices (ECDs) are now considered intermediate weapons in the West, but it also requires that “Use (at least in the probe mode as here) requires a strong government interest which this opinion indicates is ‘an immediate threat’ by the subject to the officer or others [and a] warning is important and should be done unless exigent circumstances exist.” So every use of a Taser must now be preceded by a warning unless it is not possible to do so. Though the circumstances of this case were from a traffic stop, it also impacts jails and prisons.
When challenged about our application of force inside a jail or prison we can make whatever counterarguments we want, but if we do not take into consideration the principle of legitimacy before we use force we are treading on dangerous ground. There are ample legal, political and personal reasons not to take this final principle for granted.