Theodore Roosevelt knew it. In his 1910 speech “Citizenship in a Republic” he stated:
"It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat."
We all wish that we were perfect all the time but such is not the case. We strive to be “dialed in” and aware of our surroundings so we’re not caught off guard. We study the law so that we are knowledgeable and decisive in its application. We practice our suspect control skills so that we are competent and effective. We train hard and pray that when force becomes necessary we won’t fumble but we know that reality has a way of interfering. But professional athletes on a field of play, who get paid exorbitant salaries, have the top trainers and equipment…fumble. The play is known and practiced repeatedly and yet they miss the block, fumble or drop the pass which hits them square in both hands. And lives don’t hang in the balance.
And yet on Monday morning the armchair quarterback, never having played or having forgotten about the “human factors” of the sport sits in judgment. “He should have done this; he could have done that…” The critic’s vision is 20/20 now, in hindsight, absent the realities of game day out on the field of play or on the street in law enforcement.
The Court Knew
The Supreme Court said in the Graham v. Connor decision, “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
“With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”
And yet chiefs, administrators, investigators, supervisors and others in LE routinely engage in serious Monday morning quarterbacking on use of force incidents. They ponder, propose and postulate that the officer could have and indeed should have done A, B, or C instead of what they did. They bog down officers with concepts such as: intent, ability, opportunity, jeopardy and preclusion which are not required by law. How can we expect an officer to read a suspect’s intent? Does he have that gun in his hand with the intent to do me harm or to kill himself? Agencies routinely examine an officer’s tactics post incident and conflict this tactical critique with the very real question of whether the officer’s use of force was objectively reasonable in light of the totality of the circumstances at the moment they used force. Such farcical notions get officers killed in this country each year and that’s a hell of a price to pay for agency worries about being sued.
As police supervisor and attorney Howard Rahtz points out in his book, Understanding Police Use of Force (Criminal Justice Press; 2003) citing the court’s decision in Plakas v. Drinski (7th Circuit, 1994) “We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct.” Rahtz states in his book, “The rulings in these three cases (Plakas, Scott v. Henrich and Schultz v. Long) affirmed the principle that deadly-force incidents must be judged from the precise moment the “seizure,” i.e. deadly force, occurs.”
“We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policeman face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant that to someone analyzing the question at leisure.”
United States v. Sanchez (9th Circuit; 1990)
In Their Shoes “At the Moment”
Correct investigation and examination of use of force incidents – non-deadly as well as deadly – requires that you put yourself in the officer’s shoes “at the moment” that force was used. What was the nature of the call? What were the environmental factors such as lighting, distance and more? Also to be considered are those “human factors” as eminent trainer Bruce Siddle refers to the SNS – Sympathetic Nervous System reactions (also known as fight or flight). These include perceptual distortions – tunnel vision, auditory exclusion, Tachypsychia (time distortions) as well as cognitive performance issues. It is well known that while experiencing an SNS response to a threat the brain changes the way it does business. Higher thinking such as strategy and tactics are associated with lower level forms of arousal (Parasympathetic Nervous System) rather than fight or flight. Quite simply expecting tactical brilliance from an officer facing a man with a gun (or any serious injury or life threatening situation) is unreasonable.
The Supreme Court has acknowledged this as have lower courts. Why then do law enforcement agencies and their respective administrators insist on holding officers to a standard of performance that is not legally required and not, in most cases, physically possible? Why do they second guess their officers and critique their performance with information learned after – at leisure from the cold comfort of their safe offices?
Notions such as: firing two rounds and stopping to assess the suspect’s reaction; waiting until the armed man points the gun at the officer; ascertaining a man’s mental intent; not firing at a suspect behind the wheel of a car speeding toward them; engaging in sophisticated suspect controls techniques; on and on, are all ludicrous and are based on performance levels not possible on the street.
All of this is based on a 20/20 hindsight and not based on the lawful objectively reasonable standard at the moment, based on the totality of the circumstances.
All of this is of course ignores the 7th Circuit’s decision in Plakas v. Drinski:
“Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing then no force would have been used. In this sense the police always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing.”
In Their Shoes
Proper use of force investigations require supervision to document “totality of the circumstances” and judge the officer’s use of force from a range of reasonable options at the moment they applied force. To step out of your size 10’s and slip into the officer’s shoes “at the moment.”
Don’t trash morale and officer decision making by engaging in 20/20 hindsight. Train your officers to know the legal parameters of use of force. Write policy that incorporates these legal standards. Supervise them properly on the street and if/when they use force gather the facts and circumstances then arrive at a conclusion as to whether they used an objectively reasonable amount of force, at the moment they used it. Put yourself in their shoes with what they knew in the arena as Roosevelt said; don’t critique them from some lofty perch in an office…
To learn more, pick up a copy of the author’s new book: Use of Force Investigations: A Manual for Law Enforcementpublished by Responder Media and available through Amazon.com and wherever fine books are sold.