Coulda, Woulda, Shoulda

On a Monday morning, in the safety of an office, already knowing the outcome, everyone is an expert. It was only a toy gun. He was only 12 years old. She was only 17 and was just suicidal. The officer could have talked more. The officer exercised bad tactics, creating the jeopardy. It would not have happened if he had crisis intervention training. While watching a tape of a violent confrontation (after watching it 10 times in slow motion) which led to a shooting, the “expert” exclaims if the officer could, would or should have done the expert’s patented maneuver, tactic or technique…right here; “Don’t you see, I’m right? If he had done it my way the shooting would not have happened.”

After an incident, these tactical wizbangs come out to point out how the officer screwed up—most often looking to sell their training programs (i.e. “If you bring me in at $2,000 per day, I can teach your agency how this was wrong using my fool-proof plan and copyrighted acronyms”). The truth is, all that talk is just supposition or theory and second-guessing. It is entirely possible that the officer could have talked more and been shot for his efforts— have we forgotten the Deputy Kyle Dinkheller case?—or held onto the subject longer instead of backing away and been stabbed to death.

The Justice Department has even come up with a new term—”segmentation”—to describe their post incident critiques and conclusions: “Using a focused ‘decision-point’ approach (also known as segmentation) to analyze each use of force incident, we considered each point when an officer made a decision that may have an effect on subsequent events, as opposed to focusing solely on the final decision to use force. The decision-point process allows the police supervisor to conduct more intensive and comprehensive reviews of the reasonableness of a particular use of force incident and to identify and address any flawed tactical decisions and training opportunities.” Let’s look at this tripe, as provided by the U.S. Department of Justice’s Investigation of the Cleveland Division of Police report on the Cleveland Police Department (Dec.4, 2014):

“We also found other instances of poor and dangerous tactics that may have resulted in constitutional violations or other dangerous situations. When handcuffing or searching a suspect, for example, we found incidents in which Cleveland police officers lost control of the suspect, requiring the officers to use force that wound not have been necessary had they used sound tactics in the first place that would have enabled them to maintain control.

“In May 2013, two officers approached “Paul” because he looked “suspicious” and might have been urinating in front of a store. After approaching Paul, an officer patted him down “for the officer’s safety.” During the pat down, an officer located a kitchen knife. The officer then informed Paul that he was under arrest. Paul tried to pull away, but the officer’s finger got caught in Paul’s clothing, breaking the officer’s finger. The other officer on scene then stepped in and “tackled” Paul, who was “actively resisting.” Once Paul and the officer were on the ground, the officer punched Paul several times, including in his forehead, in the back of his head and in the middle of his back … After transporting Paul to the Central Prison Unit for booking, the officers found a loaded gun in Paul’s coat pocket.”

Interesting that the “experts” used by the Justice Department found that “Paul” had not escalated his resistance, thereby creating the circumstances (ie: the officer’s broken finger and subsequent tackle by another officer). Don’t you know it was the officer, through his bad tactics, who caused the use of force?

“We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer.” — Plakas v. Drinski

Officer Created Jeopardy
The court in Livermore v. Lubelan ruled: “That is, the court should first identify the ‘seizure’ at issue here and then examine whether force used to effect that seizure was reasonable in the totality of the circumstances, not whether it was reasonable for the police to create the circumstances.”

Yet, despite the above, many supervisors, investigators, trainers, police management, prosecutors, the media and especially the DOJ engage in 20/20 hindsight and the “tactical critique” (first mentioned by trainer Jeff Cope) as part of their investigations post incident. Many (most) are ignorant of the proper sequence and focus of a use of force investigation. The first question is whether the officer was operating within federal and state law on the use of force. And, yes, as former FBI Special Agent and attorney, John Hall has stated: “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 are shocked. I can understand why the officer on the street is unaware; there is no excuse for those who supervise them and train them to be unaware. It is even more egregious if they are aware and ignore it.”

The second and separate investigation is whether the officer violated policy and procedure. It is vital, in my opinion, that agency policy mirrors the legal standards of Graham v. Connor and applicable state law. You increase agency liability by making use of force policy more restrictive than the law. More importantly, you create hesitation and trepidation in your officers when you have 50-plus page use of force policies. Yes, if an officer’s actions or tactics were so reckless or disregarded basic safety standards, the officer may be disciplined for his actions. But tactics are subjective in nature and the use of force standard is an “objective” one and is “not capable of precise definition,” according to the Supreme Court in the Graham case.

A third investigation or examination can be from a training perspective which focuses on lessons learned and what areas in training should be sustained or improved. Here is where the tactical examination can take place. What can we do as trainers or as an agency to improve officer performance?

“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 officer 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 the constitutional limits, society praises the officer for causing.”— Dickerson v. McClellan

Conclusion

We all make mistakes—at least those who have spent time on the streets actually doing police work have made them. You are lying if you can say that there has never been a time when, post incident, you have said, “Boy, did I screw up,” “I was lucky there” or “I really used some bad tactics—I’ll never do that again.” If you haven’t witnessed other good, solid officers having a bad day, getting caught off guard, inattentive, just a little mentally slow or overwhelmed with the influence of their sympathetic nervous system (fight or flight) response, then you are lying.

We all have bad tactical days. But the law does not require perfection. It only requires reasonableness and is to be judged “at the moment force is used,” not with the 20/20 vision of hindsight and not through the lens of some “expert” examining the incident from the safety of his office, looking to convince themselves or you that he coulda, woulda or shoulda done better and certainly not some DOJ attorney fulfilling a political or social agenda for his masters in Washington.

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