Leading on Use of Force

Imagine an officer, in the most vulnerable position right after surviving an OIS – Officer Involved Shooting, who is thrown under the bus by his agency.  Imagine an officer abandoned by his department after a use of non-deadly force incident caught on video which is being exploited for ratings by an agenda driven media.  No, you hear, police chiefs and administrators would never do that.

How about an agency failing to follow their own procedure post shooting?  Lack of representation (an attorney) being provided, insisting on an interview before the officer meets with counsel provided by the agency, before he has time to process the stress chemicals of a Sympathetic Nervous System reaction?  And all those videos from BWC – body worn cameras, police dashboard cameras, cell phone footage gathered by the investigators, or even surveillance cameras from businesses?  Does the officer get a change during the interview to review these prior to his officer statement or report? 

Let’s just bring in: the state police, state criminal investigators, or a bigger agency next to us to investigate.  They’re pros, they’ll conduct a professional investigation.

No, that stuff never happens.

Reality is Quite Different

You see, I’ve worked multiple cases as an expert witness where the agencies did not follow their own policy on how the use of force, whether deadly and/or non-deadly, was to be reported, investigated, commanded, evidence processed, legal standards applied, and interviews conducted. 

Legal representation?  Why an agency even posted the attorney’s name and cell phone number in the policy yet, he was never called.

Investigator compelling a statement from the officer then using that against them?  How about submitting the statement (marked Garrity Statement) to the Grand Jury through the prosecutor’s office?  Yep.  Compelled statements?  There was the case of a state investigator trying to use compelled statements against five officers charged with felonies in the death of an inmate (Excited Delirium death by the way).  The state investigator made his case that these statements were “just standard police reports” and were not compelled.  Fortunately a savvy union rep insisted that the supervisor issue the order to write the reports.

24 to 72 hours before and interview?  Why outside agency investigators have interviewed police officers right after a critical incident when their own agency requires representation and a 72 hour wait.

Videos?  How about this quote from the deposition of an investigating supervisor who had charged three of his men with excessive force:

Question: Now, when you interviewed Deputy Doe, it looks like you did not let him see the video to refresh his recollection of the incident before you were asking him questions. Is that fair?

Answer: I did not let him see the video, no.

Question: Okay. Why not?

A. I didn't feel it was necessary.

Question: Okay. The video is more reliable than the guy who had his hands on him?

Answer: Yes.

Question: Why is that?

Answer: Well, because I believe that the video is the most unbiased.

Question: So you're saying that the person who had his hands on him could be biased one way or another?

Answer: Yes.

Question: And because of that, you would prefer to let the video tell you what happened?

Answer: Absolutely.

*It is interesting to note that this supervisor had absolutely no training on use of force investigations and did not let his officers view the videos.  He then used the videos against them accusing his officers of lying when their statements did not match the videos.

I’ve dealt with police chiefs, sheriffs, prosecutors, detectives, state investigators, and Assistant U.S. Attorneys who have no idea what the legal parameters are for use of force by American police.  This has resulted in police officers and sheriff’s deputies being charged with crimes including three LEO’s prosecuted in Federal Court with criminally violating a suspect’s constitutional rights.  From the trial:

Question: Mr. Davis is it not true that the standard for police use of force is reasonable and necessary?

Answer: No counselor, the standard is Objective Reasonableness at the moment that force occurs.

Policy – Clarity or Confusion

Though an officer cannot be charged criminally with violating policy, I’ve been involved in cases where policy was used against officers at trial.  Even though the policy was ridiculous.

Hey wait, what about when an agency violates policy?  No worries.  After all, policies, procedures and rules don’t apply to the agency, just to the officer on the street.  The trend is to come up with politically correct policies that are so confusing officers cannot understand them.

Consider that groups such as President Obama’s Department of Justice Civil Division and PERF – Police Executive Research Forum, have created hesitation, trepidation and police officer uncertainty on use of force on the street by coming up with these PC use of force policies such as this one forced upon Cleveland PD by the USDOJ:

“Consistent with the Division’s mission, including the commitment to carry out its duties with a reverence for the sanctity of human life, it is the policy of the Division to use only that force which is necessary, proportional to the level of resistance, and objectively reasonable based on the totality of circumstances confronting an officer. Officers shall also take all reasonable measures to de-escalate an incident and reduce the likelihood or level of force. Any use of force that is not necessary, proportional, and objectively reasonable and does not reflect reasonable de-escalation efforts, when safe and feasible to do so, is prohibited and inconsistent with Divisional policy.”

- Use of Force Policy Draft Cleveland Division of Police, Revised Date 2016-11-08

Clear as mud right?

Leadership

My God don’t we need some right now?  In these uncertain times officers are looking for leaders and leadership on police use of force (and so many other LE topics we cannot list them).  Yet, instead of getting ahead on these topics and issues, we have supervisors a.k.a. “managers” who fail to educate themselves on the legal aspects of use of force, align themselves with PERF and other PC groups, develop policies which, *(see above), are so damn confusing that the rank and file cannot understand it in the calm of a classroom let alone in a back alley at zero-dark-thirty in a fight for their life.

Instead of getting ahead of all the media, mainstream or modern, these department heads circle the wagons and don’t make a statement of throw the officer to the wolves to serve political gains (Freddie Gray case ring a bell?).

You want to show some leadership chief?  Go to a solid training program on officer involved shootings or serious use of force incidents.  Designate which detective(s) will handle these types of incidents and send them to training schools!  Develop a solid, simple to understand, use of force policy based on the law.  Further, develop a policy for officer involved death or serious bodily injury incidents that covers: in-custody death, pursuit related death, incidents where officers shoot but don’t hit or their use of force results in serious injury.  This policy should map out how the investigation will unfold from the scene on the street, through the interview and post incident critical incident stress debriefing and return to work.  I’ve had too many friends involved in shootings who were treated poorly by their agency to ignore this type of policy.

Leaders take care of your troops!  The officers on the street (and elsewhere in law enforcement) in most cases don’t trust their bosses to do this most fundamental thing.  That lack of trust has resulted in the “Ferguson Effect” now proven to exist throughout the U.S. law enforcement community.

Lead from the front.  Take care of your troops.  And be the leader on the proper use and investigation of use of force incidents!  And then support your cops!