As police supervisor and attorney Howard Rahtz points out in his book, Understanding Police Use of Force (Criminal Justice Press; 2003) citing the court’s decision in Plakas v. Drinski (7th Circuit, 1994) “We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct.” Rahtz states in his book, “The rulings in these three cases (Plakas, Scott v. Henrich and Schultz v. Long) affirmed the principle that deadly-force incidents must be judged from the precise moment the “seizure,” i.e. deadly force, occurs.”
“We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policeman face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant that to someone analyzing the question at leisure.”
United States v. Sanchez (9th Circuit; 1990)
In Their Shoes “At the Moment”
Correct investigation and examination of use of force incidents – non-deadly as well as deadly – requires that you put yourself in the officer’s shoes “at the moment” that force was used. What was the nature of the call? What were the environmental factors such as lighting, distance and more? Also to be considered are those “human factors” as eminent trainer Bruce Siddle refers to the SNS – Sympathetic Nervous System reactions (also known as fight or flight). These include perceptual distortions – tunnel vision, auditory exclusion, Tachypsychia (time distortions) as well as cognitive performance issues. It is well known that while experiencing an SNS response to a threat the brain changes the way it does business. Higher thinking such as strategy and tactics are associated with lower level forms of arousal (Parasympathetic Nervous System) rather than fight or flight. Quite simply expecting tactical brilliance from an officer facing a man with a gun (or any serious injury or life threatening situation) is unreasonable.
The Supreme Court has acknowledged this as have lower courts. Why then do law enforcement agencies and their respective administrators insist on holding officers to a standard of performance that is not legally required and not, in most cases, physically possible? Why do they second guess their officers and critique their performance with information learned after – at leisure from the cold comfort of their safe offices?
Notions such as: firing two rounds and stopping to assess the suspect’s reaction; waiting until the armed man points the gun at the officer; ascertaining a man’s mental intent; not firing at a suspect behind the wheel of a car speeding toward them; engaging in sophisticated suspect controls techniques; on and on, are all ludicrous and are based on performance levels not possible on the street.
All of this is based on a 20/20 hindsight and not based on the lawful objectively reasonable standard at the moment, based on the totality of the circumstances.
All of this is of course ignores the 7th Circuit’s decision in Plakas v. Drinski:
“Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing then no force would have been used. In this sense the police always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing.”
In Their Shoes
Proper use of force investigations require supervision to document “totality of the circumstances” and judge the officer’s use of force from a range of reasonable options at the moment they applied force. To step out of your size 10’s and slip into the officer’s shoes “at the moment.”
Don’t trash morale and officer decision making by engaging in 20/20 hindsight. Train your officers to know the legal parameters of use of force. Write policy that incorporates these legal standards. Supervise them properly on the street and if/when they use force gather the facts and circumstances then arrive at a conclusion as to whether they used an objectively reasonable amount of force, at the moment they used it. Put yourself in their shoes with what they knew in the arena as Roosevelt said; don’t critique them from some lofty perch in an office…
To learn more, pick up a copy of the author’s new book: Use of Force Investigations: A Manual for Law Enforcementpublished by Responder Media and available through Amazon.com and wherever fine books are sold.