Use-of-force incidents aren't always evaluated.
Use-of-force incidents are supposed to be examined and evaluated under the "objectively reasonable" standard. (iStockphoto)
FEATURED IN TACTICS AND WEAPONS
In the article What is the Standard on Use of Force, the authors pointed out the rather common disconnect between applied police policy and training standards versus actual field performance. This industry-wide dichotomy often serves the civil plaintiff's interests at the expense of public safety. In order to better balance the inherent tension between Constitutional freedoms and the legitimate law enforcement role, it is imperative that police administrators, supervisors, trainers and line officers share an accurate understanding of the objectively reasonable elements contained in the Fourth Amendment.
To illustrate this point, the authors offer two remarkable examples of the administrative ignorance concerning the objectively reasonable standard. The two examples were apparent in the aftermath of two separate off-duty shooting incidents involving well-experienced officers from different law enforcement agencies. In both cases, the involved agencies were quite large, well experienced, and rather sophisticated. However, the after-action administrative processes were identically flawed by virtue of an inherently unreasonable effort to sanction or discipline the involved officers. In both shootings, it was the after-action administrative processes that increased the civil liability exposure, more so than the actual shooting incidents. While no good resulted from either incident, both serve to demonstrate an incorrect and artificial imposition of unrealistic performance standards.
Case Study: The Lieutenant
In the first example, a police lieutenant driving by a crowded bus stop on a major boulevard observed local street gang members exchanging gang signs and verbal taunts with other subjects who were already seated in a public bus. At the time, the lieutenant was driving his small personal vehicle and was dressed in business attire. He had a duty firearm, extra ammunition, handcuffs and a badge carrier affixed to his belt, all in plain sight when he stepped from his vehicle without his jacket.
As the lieutenant's attention was drawn to the street gang drama, he observed one young male subject reach into his baggy clothing and produce a pistol with which the subject gestured and displayed in a threatening manner towards the bus passengers. The lieutenant set the brake on his car, stepped out, drew his duty firearm from a position near his car, and issued loud verbal commands to the armed and threatening subject. It will never be known what thought processes or calculations occurred on the part of the armed subject. What is known is that he first fired at the occupants of the bus and then turned and ran southbound on a busy city sidewalk. The lieutenant gave chase and continued to issue loud, understandable commands ordering the gunman to "STOP" and "DROP THE GUN."
As the foot pursuit continued for some distance, the gunman turned and fired wildly at the pursuing lieutenant. The lieutenant was far more discretionary, returning fire or holding fire as the background and targeting issues rapidly changed. At one point, the fleeing suspect made a 90 degree change in direction and then continued to run with the gun still in hand as he moved eastbound on a less populated side street.
The lieutenant continued to pursue and continued to issue verbal commands. At some point, the lieutenant perceived the subject's body dynamics to indicate that the subject was rotating again to exchange additional fire. The lieutenant took aim, fired from a two-handed stance and placed multiple rounds on the intended target. The subject fell to the street with his gun skidding slightly beyond his position.
The lieutenant then cautiously approached the subject and was alarmed to see the still animated subject move towards and reach to recover the fallen gun. The lieutenant quickly responded to the apparent threat by again firing multiple rounds on target. The subject was pronounced dead at the scene and his weapon of choice was recovered in the final shooting scene. Physical evidence and civilian witness statements absolutely corroborated the lieutenant's account of the original shooting at the bus, the running gun battle along the boulevard and the ultimate assault and response on the side street. There was no dispute of facts or inconsistent evidence produced during the OIS investigations.
Case Study: The Deputy
In the second example, an off-duty deputy sheriff was threatened in a "road rage" incident shortly after leaving his duty station. At the time, he was driving his personal vehicle and was wearing civilian attire that included shorts, T-shirt and "flip-flop" beach sandals. The deputy did not possess a department radio, but he did carry a personal cell phone. The deputy became aware of a suspicious vehicle shortly after departing from his patrol station. The vehicle was being driven in an erratic manner by a male suspect. While monitoring the highly unusual circumstances, the deputy understood the suspect's verbal threats to kill his family. The assaultive driving and the verbal threats caused the deputy to consider that the incident was a job-related ambush in progress.
The deputy made two preliminary decisions. One, he attempted to follow and monitor the suspect hoping to somehow cause on-duty patrol personnel to stop the suspect. Two, he used his cell phone to call into his duty station and report in real-time what was occurring and where. While both decisions were completely consistent with so-called "good police work," they proved to be ineffective. The suspect drove away from the initial encounter onto a well-lit wide street that was void of any other traffic. The deputy was driving his personal vehicle and sped up in an attempt to obtain a vehicle license. The suspect suddenly slammed on the brakes of his vehicle for no apparent reason, which forced the deputy to swerve, brake and attempt to avoid a rear end collision. The deputy recalled training information that he had previously received indicating that suspects sometimes use this exact tactic to deploy the air bags, thus briefly distracting or incapacitating the victim officer. The quick reaction of the deputy swerving likely prevented the air bag from deploying, even though the deputy's vehicle struck the rear end of the suspect's. The suspect then drove away at high speed.
As the deputy followed the suspect, he noted the suspect's erratic driving posed a considerable threat to other vehicles and pedestrians. The deputy's use of his personal cell phone created a slight time delay as his reported information was received, processed and then broadcasted over the actual department radio communications to the marked patrol units. In effect, the deputy was alone, without backup or tactical equipment, and was eventually forced to defend himself against a continuing and escalating threat.
As the deputy followed the suspect, their route entered into a residential area which allowed the suspect to make a quick turn and park. The requested follow-up units and helicopter had not yet arrived on scene. Suddenly the deputy found himself compromised and he attempted to adjust by stopping his vehicle, getting out on foot and assuming a defensive position. The deputy drew his off-duty firearm thinking the suspect had bailed out and was on foot in the vicinity. The deputy also planned for a containment of the area and the deploying of searching officers. Unexpectedly, the suspect popped up from behind his parked vehicle and began rapidly advancing on the deputy. The deputy issued strong, terse verbal commands ordering the advancing suspect to "STOP." Unfortunately, the suspect remained non-compliant and continued to close on the deputy in a threatening, hostile manner.
While the deputy continued to issue loud verbal commands at gunpoint, the suspect continued to aggress on foot and continued to shout verbal threats. The deputy's full and focused attention was on the advancing suspect. The subject's body and hand movements convinced the deputy that a gun was about to be produced. The deputy viewed the physical dynamic as a "reaching" for a gun that was yet to be seen. The deputy responded to the apparent threat by firing multiple rounds on target, thus stopping the suspect's advance.
Analysis: Administrative Review Processes
In the first example, the lieutenant was initially sanctioned based on a shooting review board's findings that alternative means that could have, should have, or might have been deployed by the lieutenant rather than his deliberate and effective use of deadly force.
In the second example, the deputy was initially sanctioned based on a command level determination that the deputy was poorly equipped for the deadly encounter, thus leaving the deputy with the use of deadly force as his only option.
Both of these officer involved shootings and the administrative aftermath are presented here to illustrate the pervasive misunderstanding of the objectively reasonable standard of care under the Fourth Amendment as clearly articulated by the United States Supreme Court. In both examples, the administration process amounted to "20/20 hindsight" by supervisors who were not present in the actual scenes or forced to respond in real-time to the escalating threats. Such administrative processes are simply the art of after-thought and are completely INCONSISTENT with the legal standards set forth by the highest Court in the land. Obviously, such administrative critiques greatly benefit the civil plaintiff and seriously disadvantage the defendant officer.
In the first example, the lieutenant was officially criticized for NOT TAKING COVER behind nearby parked vehicles. The reasoning offered was that seeking cover would have reduced the threat to the lieutenant as the suspect continued to fire, presumably until he depleted his available ammunition supply. This incredibly incompetent finding ignored the reality that the involved peace officer maintained a DUTY to prevent the suspect from firing the gun in a public place and maintained a RIGHT to exercise self-defense.
In the lieutenant's case, the after-action administrative process was so institutionally focused on discouraging deadly force responses that it overlooked the realities of the actual incident and the compelling need for the lieutenant to rapidly intervene.
In the second example, the deputy was formally criticized for NOT BEING PROPERLY EQUIPPED and for NOT SUCCESSFULLY DISENGAGING. Some of the reasoning offered focused on the time delays created by the cell phone use. The critical comments suggested that the deputy could have, should have, or might have been more effective if only he had carried a hand-held radio, presumably improving his communications ability. In fact, no such radio equipment was either available to the deputy or was commonly provided to off duty officers. This particular criticism created a non-existent hypothetical fact pattern and then offered a speculative prediction of a different, perhaps more desirable outcome. The formal attempts to discipline the involved deputy even included a criticism of his "flip-flop" beach sandals noting that such scant, casual footwear was not up to the combat conditions and quite possibly impaired the deputy's ability to maneuver (retreat) away from the aggressor.
The point to be observed here is that any AFTER ACTION CRITIQUE simply represents "20/20 hindsight" and does not fairly address the reality of the incident in terms of time, perception, judgment and reaction. In tactical terms and human factors analysis, such incidents are typically "peak stress" events that inherently present less than perfect conditions. In legal terms, the United States Supreme Court recognized the nature of such incidents stating, "... officers are required to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving."
In the same ruling, the high Court specifically stated that such incidents are not to be measured against a "20/20 hindsight" standard. Hence, the current state of the law does not demand or expect such incidents and outcomes to be perfect. Rather, the Court measures such incidents against an objectively reasonable standard exactly consistent with a Fourth Amendment analysis.
Herein lies the disconnect. The typical police administrative review relies exclusively on a "20/20 hindsight" perspective in which any and all alternatives are considered and evaluated in the comfort, safety and security of a headquarters office and with the luxury of abundant time. Such a protocol is simply incompatible with the actual in-field circumstances faced by the involved officers.
To correctly apply the objectively reasonable standard to the lieutenant's incident and the deputy's incident, one needs only to determine if a LIKE OFFICER in a LIKE CIRCUMSTANCE would respond in a LIKE MANNER. To reach this determination, one must consider the underlying policy and training issues, the involved officer's experience base, the facts or information then available to the officer, and the reasonableness of the perceptions and/or judgments of the officer at the time of the incident. That being said, one must appreciate the "real time" constraints and "real world" human factors inherent in such a "peak stress" event.
Note: The objectively reasonable standard pivots as much on the officer's intellectual process, or REASONING, as it does on the established fact pattern. This standard does not mandate accuracy, experimentation, perfection, or even the most desirable outcome. In rather stark contrast, the typical police administrative review process carefully identifies, exhaustively evaluates and purports to calculate any and all other alternative means in a rather luxurious expenditure of time and reflection; a luxury not afforded to the officer during a "peak stress" event.