Success Story: Cops 2, Plaintiffs 0 In Excessive Force Lawsuits

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Part of a periodic series

Sgt. Thomas Ovens, an officer in the state of Washington, had scarcely hung up his diploma from the Force Science Certification Course when, in quick succession, he was called on to help defend two major lawsuits against police.

In one case, officers with a large department in Eastern Washington shot and killed a home invader who had assaulted a woman, stabbed a family dog with a “large” knife, tried several times to stab an officer, ignored verbal commands at the end of a foot pursuit, and, still brandishing his bloody edged weapon, turned and charged toward officers after a TASER had failed to bring him down. His survivors claimed that the volley of rounds officers fired at him was excessive and fatally violated his civil rights.

In the other case, a sergeant and his city from Western Washington were named in a federal excessive force suit after the sergeant briefly deployed a TASER against a neighbor who challenged officers while they were trying to subdue an elderly suicidal subject. A district court initially dismissed the case on summary judgment, but on appeal the 9th Circuit appellate court ruled that the suit should go to trial, and Ovens became a key expert witness for the defense when the matter finally played out back at the district level.

“These were the first major cases I’ve been involved in where I applied material from Force Science since attorneys began calling on me for expert witness work 13 years ago,” Ovens told Force Science News. In both cases, he was able to use concepts he learned in the certification course about how human beings perform under stress to explain and justify the actions of the officers involved.

And in both cases, his input was regarded as pivotal in winning victories for the police.

DUEL OF EXPERTS. With more than two decades on the job and experience as a trainer since 1993, Ovens had testified in previous cases in federal and state courts on a gamut of issues, including patrol procedures, tactical operations, and use of force. In the Eastern Washington case, his principal assignment was to evaluate the pre-trial opinion of an expert for the plaintiffs, a former major crimes detective recently retired from a sheriff’s office after nearly 30 years in law enforcement.

To subdue the aggressively resistant home invader, two of several officers responding to the incident fired four rounds each, striking him four times. In her analysis, the plaintiff’s expert agreed that seven of the shots were justified. But, she argued, the final, eighth round was “objectively unreasonable and unnecessary force.”

That round was the fatal one, striking the suspect in the neck and causing blood to “immediately” pour out of his throat and mouth. It was excessive, the expert asserted, because it struck when the assailant had dropped the knife, fallen to the ground, and was “already impaired from the previous three gunshot wounds to his body.” At that point, she declared, “the serious level of threat had been removed.”

TIME TO STOP. Drawing on his recent Force Science training in his written response, Ovens pointed out that “there are physiological and cognitive limitations to officer performance during a deadly force encounter.”

Among these is the Force Science research finding that when officers are firing rapidly in a high-stress, life-threatening confrontation, “in the time it takes for an officer to perceive that the threat has been stopped, decides to stop shooting,” and then is able to actually stop, “the average officer will [involuntarily] have fired two additional shots.” In other words, just as it takes time for an officer to start shooting once a threat is perceived, it takes time to stop once there’s recognition that circumstances have changed.

Noting how quickly officers can pull the trigger under maximum urgency, Ovens estimated that all eight shots probably were “fired in less than one second from the time of the first shot.” In that drastically compressed time frame, he explained, for the officers to have perceived that the suspect had dropped the knife, was falling, and was neutralized and to then cease firing would have been “physiologically impossible.”

For good measure, Ovens used information from his certification training to address other key issues that seemed likely to arise as the case progressed. Among other things, these included reasonable time-and-distance parameters for dealing with edged-weapon threats, action-reaction realities that impact officer behavior, mental “schemas” or patterns that guide decision-making under stress, and modern standards by which officer actions should be judged.

In all, his assessment of the reasonableness of the officers’ use of deadly force covered nearly 20 pages.

OUTCOME. “The officers in this case did a great job,” Ovens says. “I was able to come in after the fact and use Force Science principles to support them.”

The result: Shortly after Ovens’s report was submitted to defense attorneys and reviewed via the discovery process by opposing counsel, the plaintiffs voluntarily dropped their lawsuit. “The case was dismissed with no finding of any wrongdoing whatsoever on the officers’ part,” Ovens says.

TASER CONTROVERSY. In the Western Washington case involving the controversial Tasing of a meddlesome neighbor, Ovens’ courtroom testimony focused on a subject that’s explored in depth in the certification course, Recognition-primed Decision-making (RPDM).

The plaintiff was quietly watching TV at home with his wife one spring evening when they were distracted by a ruckus outside. Police had arrived next door to deal with an 80-year-old man, reportedly armed with a gun, who had run a hose from the exhaust of his car into one of the windows and was trying to commit suicide.

Efforts by four officers and a sergeant to get him out of the car and handcuffed had resulted in his being Tased twice. He was being held on the ground, “moaning in pain” with his hands under his body, when the plaintiff hurried out of his house and approached the scene, demanding to know “What are you doing to Jack?!”

Officers yelled at him to “stop” and to “get back” from them. He did stop, “frozen with fear,” but didn’t retreat. The sergeant started to warn him that he would be Tased if he didn’t leave, but then discharged his TASER before completing the warning. The sergeant ended the TASER exposure after just two seconds. The man fell, in “excruciating pain, paralysis, and loss of muscle control.”

In remanding the case for trial, the appellate court in a split decision had ruled that Jack’s “concerned” neighbor had “engaged in no behavior that could have been perceived…as threatening or resisting.” Consequently, “the use of non-trivial force of any kind was unreasonable.”

In a written analysis and in his testimony, Ovens explained that the volatile situation at hand had been far from benign. “A suicidal subject by definition is homicidal and may decide to kill someone else before killing themselves,” he stated. As the officers attempted to control this uncertain and rapidly evolving encounter, the intruding neighbor was a potentially dangerous distraction.

“In the middle of a struggle with an armed suicidal subject is not the time or place to answer the plaintiff’s inquiry,” Ovens explained. “He interposed himself where he had no legal right to do so and where common sense dictates he not interfere.”

Given the circumstances, his mere proximity “could reasonably be interpreted” as threatening, and his Tasing was “a reasonable force option.”

RPDM. Much of Ovens’ trial testimony focused on RPDM, which is explained in detail during the certification course. Basically, this involves a decision-making shortcut that the brain takes in selecting responses in high-stress, time-pressured situations.

Up against an urgent, ambiguous, dynamic confrontation where critical information may be missing, an officer doesn’t have the luxury of considering a range of control options and rationally analyzing the pros and cons of each. Instead, the brain is forced to quickly grasp whatever assessment cues are available and in microseconds scan through past encounters to try to match them to a familiar pattern, and then seize upon an immediately available response that has proved effective in similar circumstances.

The result may not be ideal, but under the circumstances it can be reasonable, given what the officer knew before acting.

The sergeant being sued for excessive force, Ovens explained, could not have known the plaintiff’s orientation and intent. But from past experience and training, he would have recognized the violent potential of an angry, disruptive individual who was failing to retreat from a dangerous situation despite commands. For the sergeant to Tase him briefly to prevent a chance of escalation was well within the realm of reasonableness at the time this incident took place.

VICTORY. The plaintiff had hoped to be awarded more than $1,000,000 in compensatory and punitive damages and attorneys’ fees, Ovens says. But in the end, the jury didn’t see it the plaintiff’s way. In a verdict decided last April, the jurors instead exonerated the sergeant and gave the plaintiff exactly…zero.

Defense attorneys told Ovens that his contributions were influential in both these cases. Ovens, in turn, shares the credit with Force Science. “The certification course gave me the ability to test the plaintiffs’ theories and see what’s really true scientifically and to explain how officers decide what to do in time-pressured environments,” he says.

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