AND NOW, FOR SOMETHING DIFFERENT…

Among other things, regular readers here know that (A) I don’t usually host guest blogs and (B) as sort of the “resident cop” in the Backwoods Home writers’ stable, I frequently visit criminal justice topics in the news as related to guns and use of force.

One of our regular commentators here – “Dave, the liberal non-uncle one” – offered the following and rather than have it run as a thread veer, I thought I’d let it stand on its own as a guest blog.  I have some disagreements with it, but I’m really interested in what you reading it have to say.  The following are Dave’s words, not mine:

I asked Mas if it was all right to post this as an off-topic comment to one of his blog posts and he instead graciously suggested that he post it as a guest column.

Mas has argued several times in his BHM articles, most notably in the “Understanding a misunderstanding” section of this article that police chiefs and other police administrators often support gun control because, “In the great majority of communities, municipal police chiefs are appointed by the mayor, the city manager, or the city council. If those political entities are anti-gun, you may be sure that they will either appoint an anti-gun candidate, or make it clear to the appointee that he will speak the lines he is given or he will no longer be Chief.” On the other hand, says Mas, county sheriffs are elected and are more likely to be more pro-gun.

We are recently seeing a trend in relation to the Black Lives Matter issue for employers of law enforcement officers and prosecutors (who are usually also elected) to quickly take actions against officers who have shot Black people, especially unarmed young males. It happened in the Tensing/DuBose matter in Cincinnati and in the Miller/Taylor matter in Arlington, Texas. Though not a shooting, it also happened in the Various Officers/Gray case in Baltimore.

I’ve predicted in comments here that the issues raised by the Black Lives Matter campaign aren’t going to go away and that if law enforcement officers refuse to engage in dialog and procedural revisions that they’re going to find those revisions imposed upon them. This trend toward quick action against officers could be just that, and it could be worse than what I predicted. The political will to give officers the benefit of the doubt appears to be fading.

 

Instead of working towards a new set of rules of engagement, the trend may be to just second guess or Monday morning quarterback those police-involved Black deaths which cannot be absolutely and unquestionably identified on the very first and most superficial examination to be a justifiable homicide. In the recent Tyrone Harris shooting in Ferguson, there are even questions being raised in the face of claims and video showing that Harris had a gun and shot at officers first.

(An aside: Traditionally legal analysis of whether or not a shooting was justified as self-defense or under other justifiable-homicide laws tends to focus on the events immediately prior to the shooting. The Black Lives Matter movement, however, wants to expand the analysis far beyond that to issues such as whether police action was “really” needed in the first place, the seriousness of an action causing a need for police action, whether confrontation could have been avoided, and the like, and then adjudging whether the death was justifiable in light of the entire circumstances, not those just immediately prior to the confrontation. For example, in both the Sandra Bland and Sam DuBose matters the question is being raised whether the deaths were justifiable because the reasons that they were stopped did not justify what happened after, thus saying in effect that they should have both been written tickets and allowed to go on their way without the interaction which led to the officers wanting them to get out of their vehicles. That analysis, supported by continued protests and public complaints, is one of the things which is gaining political weight.)

That’s a reversal of what generally happened in the past where the officer was almost always given the benefit of the doubt unless the facts clearly showed him or her to be in the wrong (which is itself a practice to which the Black Lives Matter campaign objects). If the trend continues, then every officer involved in the death or injury of a Black person had better be prepared to hire a lawyer as soon as he or she can get to a phone, had better be prepared not to file a report or make any statements without that lawyer present, and had best be prepared to be fired because he or she will not do those things. In short, killing a Black person, or perhaps any mentally disturbed person or person of color, may except in the clearest of circumstances become a career-ender for many, many cops regardless of the eventual determination of whether or not it was legally justified.

There will doubtless be counter-suits by fired officers and protests by police unions, but whether to act quickly to fire cops will likely be judged on a cost basis for the employers of LEOs: What’s the financial and political cost of fighting with one officer’s lawyers or dealing with some labor problems versus the cost of an outraged Black community and even widespread protests or riots? Which one hurts the worst and is the hardest to make go away, especially since each new shooting or injury simply fans the protests to a new, higher level and since the Black Lives Matter issues are not going to go away. If police chiefs are political animals as Mas suggests, the political will may be turning.

———————

I wrote the foregoing a couple of weeks ago after reading about the Miller/Taylor matter and was waiting to post it as a comment here until I could do so at a time that it was not too off-topic. Since that time, a new report “Re-Engineering Training On Police Use of Force” has been issued by the Police Executive Research Forum (PERF), “an independent research organization that focuses on critical issues in policing” whose membership and board of directors is made up of executives, mainly chiefs of police, from law enforcement organizations around the country. What that report says led me to contact Mas to get his consent to post this sooner than I had intended.

That report says that police training and emphasis on de-escalation of confrontations is woefully inadequate. It comes to that conclusion in part because “the rioting last summer in Ferguson was not a story that would fade away quickly” (pg. 3) and “in the immediate aftermath of the demonstrations in Ferguson, there has been a fundamental change in how the American people view the issue of police use of force. A year later, this upheaval in policing is continuing, and it is unlikely to abate any time soon. … here’s why: Over the past year, the nation has seen, with their own eyes, video recordings of a number of incidents that simply do not look right to them. In many of these cases, the officers’ use of force has already been deemed ‘justified,’ and prosecutors have declined to press criminal charges. But that does not mean that the uses of force are considered justified by many people in the community.” (pg. 9)

It goes on to say, “there is a growing recognition in the policing profession that a review of an officer’s use of force should not focus solely on the moment that the officer fired a gun or otherwise used force. Instead, leading police chiefs are saying that the review should cover what led up to the incident, and officers should be held accountable if they failed to de-escalate the situation in order to prevent it from ever reaching the point where the use of force was necessary. And that is the type of analysis that community members make when they watch a video of a police shooting and wonder, ‘Why did all those officers have to shoot that homeless man? Just because he was holding a knife? All those officers were there, they had him surrounded. Why couldn’t they Tase him, or pepper-spray him, or just wait him out? They didn’t have to kill him.’ Police chiefs increasingly are recognizing this perspective, and are making a distinction between ‘could’ and ‘should’ when it comes to evaluating officers’ use of force. While a use of force might be legal, that is not the end of the discussion if there were less drastic options available.” (pg. 9).

 

In short, a professional association of chiefs of police is basically confirming — and recommending — what I had written a couple of weeks ago and, indirectly, what I wrote here long ago: that the real issue in the Black Lives Matter issue is ultimately going to be whether deadly confrontation could have been avoided, not just who was legally right after that confrontation occurred. If the report by PERF accurately characterizes public sentiment and the direction that law enforcement administration is heading, then law enforcement officers are either going to have to change or put their jobs in danger.

Just to wrap up, here’s some conventional thinking which is questioned by that report:

– Officers thinking solely about their own safety, rather than a broader approach designed to protect everyone’s lives.

– “Never back down. Move in and take charge.”

– Resolve dangerous situations as quickly as possible by whatever means legally available.

– Rigid or mechanical use-of-force continuums.

– The 21-foot rule being seen as “a green light to use deadly force”.

– The right of officers to have their need to make split-second judgments in tense and uncertain situations factored into whether a use of deadly force was legally reasonable should also be the ending point on whether their use of force was professionally reasonable.

– Officers thinking of themselves as warriors rather than guardians.

And here’s a few of the training ideas from the report:

– Emphasize training in de-escalation at a greater level than combat techniques.

– Utilize a decision making process which emphasizes gathering information, threat assessment, strategizing, identification of legal and policy requirements, and identification of options before taking action and then re-assessment of all those issues as events develop; train this until it becomes second nature and can be done in an instant.

– Considering objects which can be used as cover while creating and maintaining distance and time.

– Standing back to assess situations and allow communication, rather than immediately rushing in.

– Communicating and engaging with suspects, rather than just issuing orders.

– Realization that containment does not necessarily mean in restraint and that an officer can back up and still have someone contained.

– In after-action investigations always consider whether the officer’s actions created the exigency.

– Strongly emphasize the sanctity of all human life.

– Put very strict limits on foot pursuits and shooting at vehicles.

– Give special training for dealing with mentally disturbed individuals and individuals attempting suicide-by-cop.

The foregoing is a summary of some of the problems and responses highlighted by the report. Before reacting strongly to any of them, I’d strongly recommend actually reading the report, especially the interviews with two law enforcement officials from Great Britain where these techniques have been successfully in use for some time.

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