Use of Force in the Land of Make Believe

It’s a tough time to be a cop.  Seemingly attacked from all sides, law enforcement officers are being physically attacked on the street; vilified by the media; excoriated from politicians, even those in uniform, to serve political gains; and targeted by the Department of Justice to serve a political agenda.  All while police numbers are still lacking in most agencies and funds for training are non-existent.

Okay, that’s like a normal day…  But what really hurts is those current and former LEO’s which have turned against the profession to make a buck.  That really hurts.

Making a Buck on Use of Force

Man I’m a diehard capitalist.  This very column that you’re reading is paid for and my family and I benefit from the posting of this piece and remuneration from Officer.com.  That said, although topical information is the seed for a column or article, as are the books I’ve written, courses I instruct, or expert witness work, it is with the aim of improving, advancing and bettering my profession and my Brothers and Sisters in Blue.  Sometimes that means pointing out where mistakes are made, leadership is lacking or management is focused on perpetuating itself for its own gain.  Sometimes tough introspection is called for even when it involves officers making mistakes.  We have to learn and grow.

But learning and growing means training them properly.  Sadly, most basic training programs don’t: properly train officers on the constitutional parameters of use of force; use hands-on scenario based programs on use of force decision making; give sufficient opportunity for repetitions to gain any semblance of competence; give crisis communication skills over than lecture; and don’t train cadets sufficiently to control their Sympathetic Nervous System (fight, flight or freeze) response.  The result is a newly hired officer who does not have the legal knowledge on use of force, can’t talk to people well under excitable conditions, isn’t competent in his suspect control skills, hasn’t been trained to make good use of force decisions under stress, and can’t handle his/her fear response.

Additionally, most agencies don’t train supervisors in use of force investigations, or how to be mentors and field training supervisors to their new and veteran officers.

That said, what is the purpose, other than making a buck, of suggesting that police officers in this country should have more stringent standards than what the law allows?  How about selling training programs which instill hesitancy in officers by disregarding the threat posed by edged weapons or even a man with gun in hand?  I’ve read two articles which state that law enforcement has created an unreasonable fear of suspects armed with knives; and that we should stop teaching the Tueller Drill.  The latest piece actually states that men with guns in hand aren’t really a threat to officers.  Unfortunately both pieces are so devoid of logic and common sense as to be laughable and the latest indicates both authors have no concept of the difference between movement time of a suspect to attack, and response time of an officer to respond to that attack.

So why would a current or former police official or law enforcement trainer write such articles, propagate such nonsense or teach programs which have no basis in research and are counter to the law?  The money, that’s why.  Develop a program, once again devoid of any science or factual basis, on cultural sensitivity, diversity or the new catchphrase “implicit bias” and you can take the money to the bank.

Next are the hucksters who perpetuate the myth that working police officers don’t actively use de-escalation techniques to reduce violence and violent subjects.  And that officers create the jeopardy which leads to most police shootings.  Facts are quite the contrary with one study published in the F.B.I. Bulletin stating that 70% of the officers involved could have lawfully shot a suspect in the past but chose not to.

The Department of Justice has invented a term, “segmentation” and the concept of the “decision point approach” to determine reasonableness in police use of force.  Now, these concepts are completely contrary to the SCOTUS decision in Graham v. Connor and “objective reasonableness” force standard judged, “at the moment” force is used.  The DOJ rams these “civil action” concepts and standards down agencies throats in Title 42, Section 14141 suits against agencies.  The result?  50 page policies and procedures which judge officers at a standard not in keeping with the law.  That’s right sports fans, the asinine policies forced on agencies by the DOJ are not in keeping with the SCOTUS decision in Graham v. Connor and judge officers on their tactics and training not on whether their use of force was within the law.

Enter some enterprising entrepreneur, A.K.A. “snake-oil salesman” looking to make a buck, and what do you have?  An overpriced program which police are compelled to attend but which has no proven ability to lessen police use of force.  After all, it’s more important that we do the training to appease the politics than actually conduct meaningful training.

The Legal Standards

Force can be applied to a subject to affect an arrest based on probable cause, to detain someone under reasonable suspicion, for involuntary mental commitment, riot and other circumstances.  The amount of force must be, based on the 4^th Amendment standard on searches and seizures, an objective reasonable amount based on the totality of the circumstances and the officer’s reasonable perceptions.  It need not be the least amount of force or in fact, turn out to be necessary (think man with a fake gun robbing a bank who is shot by police).  Force is to be judged at the moment from the perspective of a reasonable officer on scene and not to be judged in 20/20 hindsight.  Factors to be considered, but not limited to, are: the severity of the crime at issue, whether the suspect poses an immediate threat to the officer or others, whether the circumstances were: tense, uncertain and rapidly evolving; whether the subject was actively resisting arrest or, attempting to evade arrest by flight.

Deadly force against fleeing felons can be used only when the officer reasonably believes the suspect poses an immediate threat of death or serious bodily harm to the officer or others, or if the officer has probable cause to believe the suspect committed a crime involving the infliction or threatened infliction of death or serious bodily harm, and deadly force is necessary to bring the suspect to prosecution and, where feasible, some type of warning is given.

In a nutshell, that is the law via SCOTUS and their landmark cases, Tennessee v. Garner and Graham v. Connor.  There are other SCOTUS rulings which must be covered such as Terry v. Ohio, and Scott v. Harris, as well as lower court rulings like Plakas v. Drinski and Smith v. Feeland, and more.  But if a firm basis of the law is built with new and veteran officers, skills properly developed and maintained in basic and in-service, as well as decision making tried/tested in confrontation simulation or stress inoculation programs, then the best results possible can and should be expected.  That’s state of the art folks.

In Sum

1) I cannot believe that any working streetwise cop or trainer worth their salt, would ever conclude or postulate that officers should not be concerned with suspects armed with edged weapons. 

2) The mere notion that a man with a gun in hand under violent or threatening circumstances is not a deadly threat is just too stupid to grasp!  These notions, articles, and the training programs for sale, come from the land of make believe, which certainly indicate the inexperience and failure to grasp the real threats against law enforcement officers, by the authors or trainers who write, develop or propagate them.

How can we afford to waste valuable training dollars on crap notions and programs when we have not properly trained our officers in basic and in-service?  Let’s leave the make believe to politicians and plaintiff attorneys and get our feet firmly planted back in reality.