Policing in Difficult Times

No other than the Director of the F.B.I., James Comey has talked about the cause and effect of the “war on police” by the media and special interest groups and the resultant spike in violent crime in our nation’s large cities.  CNN’s Wolf Blitzer stated (10/27/15), “Comey is suggesting that increased scrutiny of police tactics in the wake of the Ferguson unrest and the rise of the Black Lives Matter movement has police holding back.”  Comey was quoted speaking at the I.A.C.P. conference in Chicago, “I spoke to officers privately in one big city precinct.  Who described being surrounded by young people with mobile phones held high, taunting them when they get out of their cars.  They said to me, “We feel under siege and we don’t feel much like getting out of our cars.  And so the suggestion, the question and it’s been asked of me is, are these kinds of things changing police behavior all over the country?”

The truth is that the media is largely missing the point.  American police have been dealing with dashboard, body worn and cell phone video footage for quite some time.  In the training business we have been using videos of violent encounters with criminal suspects for years.  I remember early footage of Texas Constable Darrel Lundsford from Nacogdoches, Texas.  In 1991 Lundsford was conducting a drug interdiction stop of three Hispanic males.  The suspects were transporting Marijuana from Houston to Chicago.  Standing around the trunk area at the rear of their car when Lundsford found the illegal drugs, the three men attacked the Constable, disarmed him of his handgun then shot and killed him at the side of the road before speeding off (all three were subsequently arrested, tried and convicted for the murder).  Constable Lundsford had purchased that camcorder which captured his murder with funds from his narcotic seizures. 

Thousands of videos in the intervening years have been captured from dashboard (police) cameras, newer body worn cameras, news footage, business surveillance cameras, witness cell phones and more.  These videos have captured good police use of force and tactics, as well as excessive force and poor tactics.  For years I have told my trainees that they must assume that everything they say and do is being captured on video and audio.  I have added to that statement by saying, “Do not be the villain in a viral video!”

But the presence of cameras, police body worn or smart phone’s wielded by citizens is not what is causing police “pull back” or reluctance to engage criminal suspects.  No, it is how that video footage is being manipulated against police officers.

On Monday Morning the Armchair Quarterbacks have 20/20 Hindsight

I recently testified in a use of force case in which several LEO’s were charged with criminally violated the rights of a subject.  A video of the incident was used against them to seek an indictment before they were even interviewed!  Then, when they were indicted, the video (which they were not allowed to review prior to the interview) was used against their statements, i.e. “You don’t remember that?  How could you not see that?  The video shows you looking directly at it?” and more.

Instead of properly training their officers in use of force law, tactics, and force reporting; their supervisors in use of force investigations; and developing industry standard policy, they did none of that, then boomed their officers based on the video and a poor report.

The “Ferguson Effect,” or “police pull back” is a result of these components – ignorance of police use of force law; crappy investigations; improperly disciplining, firing, criminally charging and/or pillaring an officer in the media; even though the use of force was within the law and policy.  Further, the Ferguson Effect is a result of Monday morning quarterbacking the officer’s tactics.  In other words, post incident based on the video (which is never what the officer saw himself), the critics (and this includes far too many police personnel) criticize the officer(s) – stating he/they could have or should have, should not have – done this, that or something else. 

Regardless of the fact that the Supreme Court stated in Graham v. Connor that police use of force should be judged “at the moment it is used” versus the quiet sanctuary of a judge’s chamber (or chief’s office) in light of the facts and circumstances confronting them, Monday morning quarterbacking by police brass, political prosecutors and the talking heads in the media, has become the new standard.  Funny, our police chiefs and administrators never come to roll-calls and tell us, “These are the laws I want you to enforce.  These are the laws which you will not enforce, and these are the use of force tactics I will allow.”  Rather, they hold these cards close to their vests to be used against officers to serve the politics of force.  If an incident doesn’t look good to the media or special interest groups, then the “secret standards” will be brought forth and the officer will be tossed under the nearest bus.

How to Protect Yourself

It is impossible to completely protect yourself from an unwarranted attack by politicians, the media and anti-police groups.  Quite simply you’re human and may make a mistake based on human factors (such as the impact of the sympathetic nervous system, the so called “fight or flight”), inattention, over-reaction and a multitude of other factors.  Though your force is only required to be “objectively reasonable” based on the law, minimalist is the new standard you’ll be held to.  Here though, are some suggestions:

• Know the law – Know and be intimately familiar with reasonable suspicion and probable cause.  Know 4^th Amendment standards, these allow you to properly stop, frisk, arrest and search persons and their property.  Read and understand the Graham decision, Tennessee v. Garner, Terry v. Ohio, Wardlow v. Illinois, Dickerson and other court cases which outline the parameters for stops, arrests, pat-downs, as well as the use of deadly and non-deadly force.
• Be skilled in your subject control tactics.  Oftentimes what is perceived by the media and uneducated public as excessive is really untrained or poor attempts at control.  Lacking efficient techniques to stop and control a suspect, the officer(s) resort to grabbing and muscling.  By being trained and efficient you minimalize the time and effort necessary to control a suspect.  Hint – this takes time and effort in your off-duty hours.
• Communicate well – learn to speak and articulate in a professional police manner.  Thought “street language” or “command intensifiers” (as one police supervisor of my acquaintance had come to refer to profanity) may be necessary, don’t lose verbal control.
• Maintain control and don’t take it personally – we have to expect that suspects will verbally insult or attack us, it is simply the cost of doing business with drunk, drugged, deranged, out of control subjects or criminals.  Don’t let the suspect dictate your professionalism or control, know that you’ll get to drive away from them after the call is concluded or after they are transported to jail.  Don’t let them manipulate you.
•  Write good use of force reports – in the case I mentioned earlier where three LEO’s were charged with crimes involving a use of force, only one of the three wrote a use of force report and it was terrible.  Later at trial, when the officer testified to more detail about the incident, he was accused of lying.  A use of force report should include much more detail than, “Arrived on scene.  Arrested perp.  Left scene.”
• Review any and all videos prior to writing your report – If you fail to report something which is on a video, you can be accused of lying by omission or possibly trying to cover up.  If you are not allowed to review the video, write in your use of force report something like, “I asked to review any/all video footage prior to writing this report.  XXXXX (supervisor’s name) denied me this request.  Therefore this written report is based entirely on what I was paying attention to and my recollections, and may conflict with the video record.  Any and all differences between this report and the video are based on what I was focused on at the time and my memories of the event.”
• Know your Garrity Rights – in an investigation, an agency may compel you to make a statement.  These compelled statements may not be used against you in a criminal prosecution.  In order to have Garrity protections, you must be threatened with discipline (up to and including termination) by a member of your agency, if you do not make a statement (or some version of this).  The formula for Garrity protection is: Invocation of 5^th Amendment protection + Compulsion to make a statement = Use immunity.

Wrap Up

There is indeed a “Ferguson Effect” in law enforcement.  It is the prosecution or persecution of good officers who have done their job in compliance with the law and best practices and standards.  In order to protect yourself, you have to work, like never before, to protect yourself, your career and your rights.  You must survive the streets as Mission #1 but you must make good sound decisions and document your actions like never before!