Force Science News #285:

Use-of-force "reform" will bring catastrophe: Police attorney

IN THIS ISSUE:

I. Use-of-force "reform" will bring catastrophe: Police attorney

II. Call to action in the "Battle of the Bulge"

 

I. Use-of-force "reform" will bring catastrophe: Police attorney

 

Police officers are granted special considerations under current use-of-force laws--a fact that some reformers want to change. If that happens, "the result will be a catastrophic deterioration of law enforcement services and more violent and other crime," according to a compelling article on police legal rights appearing recently in a magazine for criminal defense attorneys.

 

As high-profile police shootings continue to grab headlines, "[e]motion is being used to attempt to eradicate long-settled law that strikes a balance between the rights of police officers and suspects," the article states. Some proposals aimed at reducing alleged excessive force reflect a profound misunderstanding of force dynamics and would "endanger police lives" by limiting officers' constitutional protections, the article contends.

 

Written by veteran police attorney J. Michael McGuinness of Elizabethtown, NC, the article appeared in the May issue of The Champion magazine, a publication of the National Assn. of Criminal Defense Lawyers. McGuinness has been recognized for "outstanding advocacy" by the National Assn. of Police Organizations for his quarter-century of experience in handling civil and criminal legal matters for law enforcement.

 

Dr. Bill Lewinski, executive director of the Force Science Institute, recommends widespread exposure of the article. He told Force Science News: "McGuinness' message is vitally important both for reassuring officers about their legitimate use of force and for helping agencies educate civilians about the realities of dealing with uncertain, rapidly unfolding conflicts that may have controversial outcomes."

 

The article, titled "Law Enforcement Use of Force: Safe and Effective Policing Requires Retention of the Reasonable Belief Standard," can be accessed in full on the Force Science website at: www.forcescience.org/champion.pdf

 

REFORM GOALS. McGuinness wrote his article as counterpoint to another piece in the magazine by three lawyers whose practices appear to deal primarily with white collar crimes.

 

The failure of grand jurors to indict Ofcr. Darren Wilson for at least involuntary manslaughter for shooting Michael Brown in Ferguson (MO) led these authors to propose that existing state statutes be substantially changed to "properly calibrate the permissible use of deadly force" by officers. (In recounting details of the Ferguson case, the writers, incidentally, describe Wilson as shooting Brown with a "semi-automatic revolver.")

 

Specifically, the trio advocate enacting laws that would permit police to use deadly force only when "actually necessary" to make an arrest, thus enhancing the "rights of citizens to be free from unjustified" shootings. "In other words," they write, "police officers' subjective perspectives should not govern whether they are charged with committing a crime. Only homicides committed by the police that are objectively justified should be considered lawful."

 

This standard, they say, "would empower grand juries (and petit juries) to determine if [an] officer committed a crime, regardless of [the] officer's subjective belief that the use of deadly force was necessary." This goal, they write, merits "immediate, concrete action."

 

McGuinness brands this intended reform as "draconian" and "dangerous." Along with "the recent public brouhaha" over police shootings, the demand for change stems, he claims, from the biased emotional pressure of interest groups, a fundamental ignorance of the life-threatening risks cops face daily, and "a lack of understanding of the most basic principles of use-of-force law."

 

SPECIAL RULES. Since the late 1980s, McGuinness writes, statutes and case law have solidly and for good reason established a "special set of rules" regarding police use of force that is "substantially different from traditional tort and criminal law principles," because of the "unique context" of law enforcement.

 

At the core, he explains, is the "reasonable belief" standard. This insulates LEOs from criminal and civil liability if an involved officer "reasonably could have believed" that the force used was necessary and appropriate

 

A perceived threat does not have to prove accurate--only reasonably apparent. "Honest mistaken beliefs in many enforcement environments are common and easy to make," McGuinness writes, and may result in escalated force. But misperception "does not equate with criminal intent."

 

Jurists and legislators have realized that circumstances can "materially impede well-reasoned instantaneous decision-making in potential life or death scenarios," McGuinness explains. "Some of these include darkness and other poor lighting conditions, glare, other visibility constraints, rapidly evolving circumstances, uncertain terrain, reflections from police lights, noise, agitated suspects and or witnesses, and anxiety and emotion...along with hostile suspects who make foolish sudden furtive movements into pockets, waistbands, purses, and other locations where deadly weapons may be hidden...."

 

He points out that LEOs must "react to apparent dangers and apparent weapons" because their decisions often have to be made in split seconds, not permitting time "to wait to ascertain with certainty" a precise weapon or threat.

 

McGuinness quotes directly from pivotal court decisions defending officers' judgment calls even when suspected dangers turned out not to exist. And he notes, despite time pressure and ambiguous environments that foster the likelihood of error, that much more often than not, officers are right in their threat perceptions, thanks to their training and experience in analyzing human behavior.

 

HOT TOPICS. In building his case for retaining the "objectively reasonable" standard, McGuinness addresses such hot button topics as the firing of multiple rounds to stop a threat, the delivery of shots to a suspect's back, and the provocative, "de facto suicidal" behavior of some offenders (including Michael Brown).

 

He explains the legal foundation for the doctrine granting qualified immunity to officers in civil cases and the "substantially higher" liability standards for criminal prosecution. "There are compelling reasons why few officers are criminally convicted of excessive force," he writes. These include standards of "willfulness" and of evidence beyond a reasonable doubt.

 

"Decades of cases have demonstrated that true actual police misconduct by criminal excessive force is indeed extremely rare," he says.

 

RUSH TO JUDGMENT. In reviewing the Supreme Court's landmark Graham decision, McGuinness reminds that in judging an officer's use of force, the "totality of the circumstances" must be considered and that Monday morning quarterbacking is prohibited.

 

Yet, "many who opine about police use of force by loud speakers before the witnesses are even interviewed do not objectively assess the totality of pertinent circumstances. The typical headline-grabbing, distorted media sound bite often goes for this punch line: 'Unarmed youth gunned down in cold blood by police officer.' Many do not want to hear a full account before labeling an honorable police officer as a murderer."

 

In a break with past practices, he charges, "More police officers are now being indicted because of interest group pressure on elected prosecutors," a "politicization of law enforcement which threatens the core of effective policing." This "increasing criminalization of American policing is among the most dangerous legal developments in law enforcement jurisprudence in recent decades," he believes.

 

He singles out for criticism the prosecutor in Baltimore who brought criminal charges against six officers last May after riots over the death of a prisoner. Through her public remarks, McGuinness claims, she has ensured that the officers "will not receive a fair trial."

 

REFOCUS. In conclusion, McGuinness argues that "what happened in Ferguson is not a reason for any reform at all." He believes that those who would vengefully change the prevailing rules of force, based on "incomplete facts and unreasonable beliefs," should instead focus their energies on the real threshold of force problems: the behavior of suspects.

 

"Suspects and others who engage in hostile threats to the safety of officers and bystanders or make movements inferring a possible deadly threat are creating havoc for themselves," he writes.

 

"Police officers do not want to use deadly force." But they "regularly face severe risks in split-second environments like no other professionals.... Violence against law enforcement officers has exploded in recent years to horrific levels.... [D]eath and injuries to officers are so prevalent that a new term should be coined: suspect brutality...."

 

Urging that the focus be shifted away from efforts to target police with "misplaced" reform, McGuinness quotes from a 6th Circuit federal case, Smith v. Freeland:

 

"[W]e must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes 'reasonable' action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure."

 

Atty. McGuinness heads the McGuinness Law Firm and can be reached at: jmichael@mcguinnesslaw.com.

 

 

II. Call to action in the "Battle of the Bulge"

 

Wisecracks about cops and donuts are annoying, but how far are they from the truth?

 

Sgt. Mark St. Hilaire, one of a half dozen instructors who spoke on wellness topics at the latest ILEETA annual training conference, cites two pertinent items from the news of late:

 

• In the US, more than 40% of police officers, firefighters, and security personnel are obese, the highest prevalence of all professions, according to a Wall Street Journal analysis of data from the American Journal of Preventive Medicine. Obese was defined as having a body mass index of 30 or above.

 

• In England, despite a nationwide drive to slim down frontline officers, a major police equipment store recently reported selling out of XXXL duty belts, designed for waists of 50-56 inches, according to London's Daily Mail website. Before a fitness campaign was launched, 64% of that city's bobbies and police staff were said to be overweight, obese, or morbidly obese.

 

"Health and wellness take a back seat in law enforcement training," laments St. Hilaire, a 24-year veteran of the Natick (MA) PD in the Boston metro area. "As trainers, we need to be the change agents within our agencies."

 

In the absence of administrative commitment to a full-scale fitness program, St. Hilaire urges that every supervisor and instructor begin integrating "brief, light-hearted tips" about health benefits into roll calls and in-service training, to raise awareness and, hopefully, ignite motivation for multigenerational audiences.

 

"These might be as simple as suggesting that officers pack a 'tactical lunch bag,' a small cooler with healthy snacks and meals to bring with them to work so they have an alternative to a doomsday diet of fast-food or have nutritious energy boosters if they get stuck at a post," St. Hilaire says. "Small improvements add up."

 

In the interest of generalized wellness, these short briefings can be expanded beyond weight control, he says, to include practical information about emotional health, fatigue and sleep problems, physical fitness for duty, addictions and substance abuse, officer suicide awareness, and other law enforcement-related mind and body concerns.

 

To capture officers' attention, he likes to point out that even in urban areas backup is often at least two minutes away...and then ask for a candid self-assessment: "Are you in good enough shape to go hands-on with a resistant, combative subject for two full minutes?"

 

(Force Science research has proven that that can be a tough standard. In experiments with street-level personnel, FS researchers have found that today's average officer can be physically depleted in less than 60 seconds of full-out exertion.)

 

Good conditioning is much more than purely a vanity or image issue, St. Hilaire stresses. Heart attacks are the third greatest cause of line-of-duty deaths, he points out. And among other consequences of poor fitness, he foresees a day when legal problems will arise.

 

"What will happen if a citizen is hurt because an officer was not fit enough to prevent or stop an attack?" he asks. "Will the officer be liable because he or she wasn't able to perform their duty correctly?"

 

The current state of police wellness, he warns, is "a wakeup call for our profession. We'd better hear it and do something about changing our culture."

 

St. Hilaire can be reached at: mark@rescueteamwellness.com. He is willing to share lesson plan ideas and resources for quick-hit topics that can promote healthier habits on the job.

 

Our thanks to "Coach" Bob Lindsey, a graduate of the certification course in Force Science Analysis, for helping to facilitate this report.

© 2017 Force Science Institute Ltd.