Did you ever read a newspaper headline that proclaimed, "AIRPLANE FLIES"? Of course not; because such a headline would not sell newspapers. But, let one aircraft fall out of the sky and you will see the largest and boldest multi-colored headlines on all sorts of media for days and sometimes for weeks following the tragedy.
In a recently published Los Angeles Times newspaper a headline article proclaimed, "MAN DIES IN SHOOTING BY LAPD OFFICER." If we apply everyday, common English language to this headline, it is clear that the officer was the ACTOR and the soon to be deceased man was the RECIPIENT of the action taken by the officer. What the headline conceals is the reality that it was the conduct of the suspect that caused the officer to deploy deadly force; meaning that the suspect was the ACTOR and the officer was the REACTOR (or responder). Factually, the uniformed police officer observed the above suspect in the commission of a felony theft and attempted to follow the suspect until back up units could assist in the arrest. The suspect alerted on the officer's presence and stopped his getaway vehicle, got out on foot, and approached the officer while displaying a replica handgun. Fearing for his safety, the officer fired and stopped the apparent threat. The replica handgun was later determined to be a "look-a-like" cigarette lighter fashioned exactly like a 9mm autoloader. Stolen property from the felony theft (or burglary) was discovered in the suspect's vehicle. The involved officer had ten years of law enforcement experience.
The above news media account is really quite typical across the country, particularly in the larger cities and metropolitan areas where such stories create and sustain controversy. Experienced law enforcement professionals have learned to accept such public misinformation by the media as simply part of the job. Those tasked with police risk management and liability control see such reporting as a constant erosion of the public trust that leads to erroneous and excessive jury verdicts.
In this continuing series of articles, the authors intend to share their unique and multi-disciplined experience base as recognized police trainers and civil litigation specialists. The goal of this series of articles is to create a vital "feedback loop" between what is occurring in the civil courtrooms and what is being taught and practiced out on the streets and alleyways across America.
One of the constant observations in such matters is the disparity between what occurred in the actual incident that gives rise to any particular lawsuit and what is revealed to the jury at the time of trial, which in turn become the "salient facts" later considered by the appellate courts.
Of course, most law enforcement professionals do not expect the local news outlets with their time constraints and marketing needs to take the time to gather valid information, screen out speculation, suppress bias, and produce a reasonably accurate account of an unusual occurrence such as an officer involved shooting incident. We all seem to assume that the truth will eventually prevail. This is a perfect example of our collective miscalculation.
In such matters, the "breaking news" version of the incident has profound effects on public perception and judgment, even to the point of being completely unreasonable. Is it logical or rational to believe that the LAPD responded to a brutal double homicide scene and immediately went about creating an elaborate scheme involving dozens of career employees all conspiring to frame O. J. Simpson and thereby allowing the actual murderer to remain at large? And yet, in spite of all of the evidence, a significant segment of the American population remains firmly convinced that is exactly what happened so many years ago.
The point to be observed here is the importance of the initial reporting, both by the news media and by the involved police agency. First impressions are often lasting impressions, some even spanning several years only to emerge in distant jury deliberations. Frequently, we can see the news media presenting live and sensational coverage of an unusual or interesting incident only to be followed by a police spokesperson blandly announcing, "NO COMMENT."
Modern law enforcement agencies have come to recognize the importance of their public statements and press releases following a significant or unusual event. In the instant, such "rapid fire" responses often contain both public safety and public information opportunities for those who are prepared. In the absence of preparation, these initial "deer in the headlights" responses can have protracted consequences to the investigation immediately at hand and the subsequent or soon to be filed lawsuit.
In between the public statements immediately following the incident and the closing arguments immediately preceding jury deliberations there is a vast and neglected landscape of police reports, interview statements, collected evidence analysis, photographic exhibits, recordings, forensic findings, administrative documents and other investigative byproducts that are eventually produced as the basis for the criminal prosecution and/or civil litigation. Much of this material is subject to interpretation by experts (both real and imagined), jurors, lawyers, trial judges and appellate panels. Unfortunately, the operative term in the process is "subjective."
Police science
One of the fantasies commonly shared within the law enforcement community is the notion of the existence of "police science." Many practitioners proudly point to their educational degrees and training certificates that incorporate the widely held misnomer that police work is a science when, in fact, it is more of an art and a craft consisting of learned behaviors and protocols. Simply reading any first report of a police incident will clearly demonstrate the individual and "subjective" nature of police work in general and in the art of report writing particularly.
The point to be observed here is that it is typically the police reports and police generated documents that define the issues at the time of trial. More often than not, significant facts or details are lost in the report writing process because the writers are focused either on the criminal aspects or the administrative issues. This bifurcation of specialized interests has become known as the so-called "two hat" theory, particularly with respect to internal police labor law.
In the classic case of an intoxicated, non-compliant and even assaultive suspect being forcefully arrested by the responding officers, the first report will generally contain the corpus of the crimes committed (i.e. disorderly conduct, public drunk, assault, resisting, etc.) sufficient to sustain the arrest and further the prosecutorial effort. In the same case, some first line supervisor or middle manager will probably prepare a written report to the command level concerning the propriety of the arresting officer's actions and the compliance with department policies. This common division between criminal and administrative needs essentially ignores the often-critical risk management and civil liability issues inherent to such police operations.
To make this point more understandable, reflect on your early police training in which you were instructed as to the content and organization of a standard police report. You were told to memorialize WHO, WHAT, WHEN, WHERE, WHY and HOW an incident progressed. And you were also trained that the report must be FACTUAL, ACCURATE, CLEAR, CONSISE, COMPLETE and TIMELY(See California Commission on Peace Officer Standards and Training Basic Academy Workbook Series, Learning Domain 18, Report Writing ). You were further taught to recognize, collect, and preserve items of EVIDENCE in support of the investigation. All of this is still good professional advice as it relates to the criminal and administrative needs. However, this common approach lacks any appreciation for the substantial probability that a plaintiff will later emerge and attempt to prosecute a civil action against the involved officers, their employing agency and the responsible governmental entity that represents the essential "deep pockets" target.
In the criminal courts, the time between the arrest incident and the judicial process is measured in days. In the civil courts, the time between the underlying police action and the civil trial is measured in years.
If we compare the earlier described LAPD officer involved in the shooting of the suspect aggressing and brandishing what appeared to be a 9mm handgun to any other officer who has forcefully arrested a belligerent or assaultive drunk, the officer's memory of the shooting incident would be substantially greater and more detailed than the memory of the officer who arrested the noncompliant drunk. And yet, both incidents involve the use of force and both incidents involve exposure to civil liability. Ultimately, both the shooting incident and the combative drunk arrest would result in various reports and reviews that would then serve as the historical account of each incident.
It's the record, not the incident
Having now participated in more than three thousand civil litigations over a thirty-five year period, your authors have concluded that it is the RECORD of the incident that is put on trial and not necessarily the true dynamics that may have taken place perhaps several years earlier.
To make this point more precisely, consider the following hypothetical field conditions. In both cases, an on duty officer keys his microphone and asks for immediate emergency assistance. In an excited and winded voice, the requesting officer gives his exact location and again requests "code three" assistance. No further communications are forthcoming as the responding field units roll to the indicated location.
In the first hypothetical, consider that the responding units arrive and find the requesting officer down, apparently dead from multiple gunshot wounds, and with an empty holster.
In the second hypothetical, consider that the responding units arrive and find the requesting officer standing in the street and covering a downed suspect at gunpoint. The suspect appears to be lifeless and has sustained multiple gunshot wounds to the head and torso, resulting in a significant loss of blood. The involved officer provides a spontaneous statement indicating that he shot the suspect as a matter of self-defense.
In the first example, we have presented an "officer down" scenario with an outstanding, non-described cop killer who very well might be armed with the murdered officer's sidearm. In the second example, we have presented a "suspect down" scenario in which the responsible officer makes a verbal accounting of incident and maintains possession of the involved firearm. With these two distinct scenarios in mind, consider the following issues:
- — Of the two, which shooting scenario would result in the more thorough, exhaustive, and enduring investigative effort?
- — Of the two, which shooting scenario would result in the greater collection of physical evidence, witness statements and police reports of various types?
- — Of the two, which shooting scenario would result in a more intense law enforcement effort by the involved agency and allied agencies?
- — Of the two, which shooting scenario has the higher probability of resulting in a subsequent Federal Civil Rights litigation?
- It is clearly the experience of the law enforcement community that an officer involved shooting will predictably result in civil litigation regardless of the merits of the claim. For whatever reason, that same understanding is not applied to less remarkable events such as the combative drunk arrest. Interestingly, both the deadly force example and the combative drunk arrest example share exactly the same legal standards of care that being the objectively reasonable standard found in the Fourth Amendment and in the landmark decision in Graham v. Connor. .
A serious disconnect
As law enforcement trainers and consultants, the authors have clearly seen a serious disconnect between what is taught and what is practiced. The void between expressed policy and actual field performance is equally remarkable. The reliance on isolated subject matter training and the failure to conduct structured vertical training is common to many, if not most agencies at all levels of the law enforcement community.
For the most part, the observed disconnect can be attributed to the lack of understanding and practical application of the objectively reasonable standard as set forth by the U.S. Supreme Court. This clear standard was articulated in 1989 as a continuing refinement of earlier Constitutional rulings. While many "old salts" in the law enforcement profession seem to cringe whenever the Courts bring about change, the objectively reasonable standard actually represented a very positive advance for the law enforcement profession. And now, almost two decades later, this very clear, logical and workable standard is still misunderstood and misapplied by line officers, supervisors, trainers, command staff and policy makers.
The professional confusion concerning this standard is pervasive at the Federal, State and local levels of law enforcement. For example, reconsider the earlier fact patterns of the felony aggressor with the replica handgun and the intoxicated, non-compliant and assaultive drunk. In both cases, the arresting officer deployed force and the amount of force used in each incident would certainly result in professional scrutiny, public concern, along with the expected criminal and civil liability.
Prior to the establishment of the objectively reasonable standard, most States simply relied on penal codes or other statutory criteria. Common to these earlier standards were the defined terms of "reasonable and necessary." In modern times, "reasonable and necessary" can still be found in police policy statements, training materials, and a host of "after action critique" protocols. The continued use and acceptance of this outdated terminology serves to mask the current state of the law and confound the ability of the police work force to safely and effectively perform high risk responses during peak-stress situations that are typically "tense, uncertain, and rapidly evolving."
So, WHY is the current objectively reasonable standard superior to the previous "reasonable and necessary" measurement? First and foremost, it is a national standard of care, meaning that an officer in New York has the same authorities and restrictions as an officer in Los Angeles. No longer are there state-by-state or department-by-department variations. A rookie officer working patrol in Seattle is vested with the same authorities and restrictions as a veteran SWAT officer in Dallas. This ultimate reality makes one wonder WHY we still have so many individual and inconsistent use of force policies in place throughout the Country when one single, constitutionally correct policy, such as is used in Canada, would better serve and protect all law enforcement officers throughout the United States in a far more effective and understandable manner than the current administrative "quilt work."
Interestingly, one can't help but notice how much the modern news media and the networking plaintiff's bar prefer and rely on the abundant confusion created by the array of seemingly inconsistent standards. There is only one valid standard and that is the objectively reasonable standard.