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Politics and Force

Item: The new chief of a large metro agency which has recently been forced to respond to a major terrorist attack blocks patrol officers from having 5.56 carbines.

Item: A police officer who is involved in an on-duty shooting is charged with a voluntary manslaughter within hours of the shooting.  When a partial grand jury recently refused to indict the officer, the prosecutor resubmits the case for a full jury hearing.

Item: The USDOJ, the same folks who brought us ATF Operation Wide Receiver and Fast and Furious and the subsequent cover-ups, invent a term “segmentation” or a “decision point” approach in an investigative report of the Portland Police Bureau and use of force which clearly uses 20/20 hindsight despite that the Graham v. Connor decision clearly indicates force is to be judged “at the moment.”

Item: The USDOJ investigates the Seattle Police Department and forces a ten page politically correct use of force policy on that agency which includes: “Officers should take reasonable care that their actions do not precipitate an unnecessary, unreasonable, or disproportionate use of force, by placing themselves or others in jeopardy, or by not following policy or training.  An officer shall use only the force reasonable, necessary, and proportionate to effectively bring an incident or person under control.”

Item: Recently two California lawmen are acquitted in the death of a suspect who actively resisted arrest.  The prosecution’s subject control “expert” is a former federal agent who admitted under oath that his only experience with attempting to control resisting subjects is “a handful, less than 10…”

Item: An agency routinely uses the internal affairs system as a supervisory machine of retaliation and vendetta

Item: An agency charges a patrol officer with two counts of assault in a use of force incident in which he was injured when his patrol vehicle was T-boned by suspects fleeing “a large fight with possible gunshots.”  The occupants refuse to show their hands or exit their vehicle and he has to use force to remove them.  Agency supervision fails to follow their policy and fails to interview the officer post incident for one year pretrial.  He is acquitted of the charges.

 

The Ripple Effect

What are the effects to an agency and law enforcement in general when these miscarriages of justice go forward?

  • Adverse impact on morale
  • Mistrust by line officers that they will not supported post-incident
  • Reduced activity or “de-policing” by officers for fear of being second guessed
  • Increased union grievances and poor relations between labor and management
  • Officers leave the agency because of the poor morale, negative climate and lack of support
  • Recruitment suffers because the best recruiting tool, officers already working there, warn potential candidates away
  • Agency performance and reputation suffers

Sadly the list goes on and on and the ripples move ever outward, adversely impacting the officers throughout the agency.  And all are, sadly, fairly easy to prevent.

The Law

It bears repeating –

“All claims that law enforcement officials have used excessive force – deadly or not ‘in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard.

“The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.  The “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

“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.”

- Graham v. Connor (1989)

“The case law dealing with the use of force by law enforcement is so deferential to the officers that when they learn of it they are shocked.  I can understand why the officer of the street is unaware; there is no excuse for those who supervise them and train them to be unaware.  It is even more egregious if they are aware and ignore it”   - John Hall (FBI, Special Agent in Charge, ret.)

An agency, its chief or its supervisors may not like a particular use of force incident.  It may not look good on video.  They may not like the: tactics, attitude, language used by the officers.  They may feel the officer lost their temper or created the circumstances which lead to the use of force.  It doesn’t matter.  Tactical critiques are exactly what the SCOTUS cautioned against when it wrote, “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.”  The Supreme Court advised that emotion and intent were not to be factored into the examinations, “the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”

Supervision may not like a use of force but the question is whether it was objectively reasonable.

The Practice

What an agency states in policy is what it should do in practice.  First of all, Graham v. Connor and the objective reasonableness standard the Supreme Court delineated should be incorporated into an agency’s policy.  There is no requirement for necessity and according to the SCOTUS, “the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” there is a “range” of reasonableness.

So, and agency must first know the law, must incorporate that legal standard in policy and then must follow it.  It does no good if an agency only enforces policy against officers and fails to follow it themselves.  Policy them becomes a tool of retribution and not the actual way the agency does business.

Wrap-Up

I wrote my book Use of Force Investigations because I had been working on too many cases where agencies violated their own policies, improperly disciplined officers or, worse yet, criminally charged officers based on ignorance of use of force law, inept investigations or the worst of all, politically motivated criminal cases, against officers.

These officers had followed the law and policy of their agency and were thrown under the bus.  Couple this with an out of control Justice Department who sues law enforcement agencies for allegations of excessive use of force but hides behind executive privilege in its own violations and cover-ups in Fast and Furious which led to the murder of Border Patrol Officer Brian Terry. 

It seems that the only people held accountable in today’s world are the beat cop or deputy sheriff.  It is sad that when they do their job and use objectively reasonable force in the performance of their lawful duties they are become victims of political ill winds that blow.

Your best defense to these attacks are: A) Know use of force law, B) Know policy, C) Follow both, D) Be competent in your skills, E) Properly articulate and document your use of force, F) Know your rights, G) Maintain your own file of your paperwork, H) Be prepared to fight unmeritorious internal investigations or allegations of excessive force – don’t count on the agency or others to take care of you or do the right thing.

“Nobody told me there’d be days like these.

Strange days indeed – strange days indeed.”

Nobody Told Me – John Lennon

 

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