As I write this article, there’s a DVD copy in my laptop of a dash-cam video involving a use-of-force incident. Another agency requested my take on the incident; however, the request was made on the assumption that the tape contained enough information for me (or anyone else for that matter) to make a quick decision that too much force was employed. However, after viewing the DVD I thought that there wasn’t enough information for me to formulate an opinion.
Over the past year, I’ve worked as an expert witness in three cases involving video evidence. In two of those cases, the officers were charged with felony and misdemeanor crimes. In the third case, the dash-cam video wasn’t enough to support or condemn the officer’s actions. That’s the rub: Video, in and of itself, isn’t enough to make a determination. Regardless of what you see, or what you think you’re seeing, there’s always more than what meets the eye.
The Illusion of Memory
Even in the “old” days before video, the best written or oral statements given by officers in use-of-force investigations weren’t the actual incidents. It’s an officer’s recollection of events based on memory, which is a product of the officer’s perceptions. It isn’t the actual event. It may (and this is hard for many investigators to believe) be filled with inaccuracies that aren’t intentional, but are the result of perceptual distortions—or as Christopher Chabris and Daniel Simons, authors of The Invisible Gorilla: How Our Intuitions Deceive Us, relate as “the illusion of attention and the illusion of memory.”
In one memorable story from the book (which is worth reading by police investigators), a husband and wife riding in the same car witnessed a stabbing on the right side of the sidewalk and couldn’t agree on most of the clothing and physical description of the attacker. The reality: An officer can only remember what they were focused in on at that moment. The information they capture isn’t stored in the brain like a videotape. But we expect our police officers to have superhuman powers of memory after an emotional incident, like a use-of-force situation, in which they’re a participant. So when facts discovered later conflict with their written or interviewed statement, they’re accused of lying.
Because of this, I’ve learned that I need more information before I can form an opinion or make a statement about what I watch on a use-of-force video. I want totality of the circumstances including what an officer saw, heard and perceived by his or her senses, as well as what the officer thought, feared and felt.
The Role of Policy
During the course of my investigation I don’t focus in on agency policy. Quite honestly, an agency policy may be more restrictive than the law. John Hall, coauthor of Urey Patrick in In Defense of Self and Others: Issues, Facts & Fallacies—the Realities of Law Enforcement’s Use of Deadly Force, states, “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’re shocked. I can understand why the officer of the street is unaware; there’s no excuse for those who supervise them and train them to be unaware. It’s even more egregious if they’re aware and ignore it.”
We’re looking first and foremost at legality of the use of force. An internal investigation may later determine that they’ve violated policy but that’s a separate issue. Tertiary to the legal investigation and then the internal is a tactical examination. Sadly, as fellow Law Officer columnist Jeff Cope has written, most use-of-force investigations are tactical critiques. It’s entirely possible that the officer made tactical blunders, but since the question is whether the officer used objectively reasonable force at the moment it was used, a tactical examination is moot. A supervisor may elect to have a conversation with the officer on tactics, but that’s a separate issue and shouldn’t be part of the legality question.
Further, many supervisors and investigators get wrapped around the axle on subjective issues, such as anger and intent. For instance, supervisors believe the officer was angry with the suspect because the officer directed profanity at him. Since the question as delineated by the Supreme Court in the Graham case is whether the officer’s use of force was objectively reasonable, subjective things, like emotion and intent, are irrelevant.
It may look bad, it may even sound bad, but that’s not the question. The question is when viewed from a reasonable officer’s perspective on scene, was the forced used objectively reasonable without regard to underlying intent or motive. Please read the Graham v. Connor decision for more information.
In two of the cases that I mentioned, which have been disposed of, officers were charged with crimes based on the videos of the incident. They looked bad. But beyond the surface, there was, as the late Paul Harvey, used to say, “The rest of the story.” The “rest” was that one officer was seriously wounded in a vehicle impact with fleeing suspects prior to the use of force and was unaware at the time whether it was intentional or not. Further, his statement was never sought by his agency. In the other case, a county prosecutor charged a veteran officer on a videotape which didn’t even depict the actual shooting.
In both cases, investigators focused on perceived violations of agency policy instead of gathering the facts. Legally, facts allow you to ascertain whether the uses of force were objective reasonable based on the totality of the circumstances. One administrator accused me after I investigated and testified truthfully that I “condoned excessive use of force.” I can assure you that such isn’t the case. I hold officers and investigators to high standards and don’t excuse either when they don’t perform their duties properly. We’ve asked today’s lawmen to perform their jobs under very tough societal and violent conditions. When they use force, we owe it to them to investigate competently and to the best of our abilities.
I’ve talked to fellow Law Officer columnist and attorney Laura Scarry who agrees that there’s a growing trend of charging police officers criminally in use-of-force incidents. If we’re going to charge, we better do a more competent job of investigating because even when use of force is performed flawlessly in complete compliance with the law, it can still look violent and excessive when captured by the 21st-century version of “candid camera.”
Educated and well-trained officers are the best option against excessive force at the line level. Educated and well-trained supervisors and investigators are the best defense of officers and the agency. Competent investigations demand more than cursory viewing of tapes with a hastily drawn conclusion.