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De-escalation: Could This Hot Mess Have Been Prevented?

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A recent US Appeals Court decision hinged on whether an officer’s use of a CEW was objectively reasonable, but an important subtext in the case concerns de-escalation—more precisely, whether a fateful escalation of force could have been prevented in the first place by a different attitude and different language.

The Michigan case, Marshall v. City of Farmington Hills, can be accessed free of charge by clicking here.

What’s striking from the outset of the 29-page decision by a three-judge, 6th Circuit panel is how the flavor of an officer’s approach to a simple traffic stop arguably drove the circumstances to a climax that landed this confrontation in the federal judiciary.

“This is a real-world example of provocation that’s a worthy case-study for training,” says Dr. Bill Lewinski, lead instructor of the Force Science course on Realistic De-escalation. “The cost of choosing to be sarcastic and abrasive rather than controlled and professional couldn’t be made clearer.”

WORDS IN THE NIGHT

At about 0100 on a rainy December night, an off-duty Detroit PD sergeant, still in uniform as he drove home from his shift in his personal car, was pulled over by a suburban patrol officer for allegedly running a red light just before it turned green a short distance from his home. The sergeant had continued to drive for an estimated 12 seconds after the officer activated his emergency lights, coming to a stop in front of his house beside a curbside mailbox.

Approaching the driver’s window on foot, the officer was “aggressive and antagonistic from the start,” in the Court’s words. The interaction was filmed by the officer’s dash cam, and excerpts of dialogue included in the Court’s decision clearly capture the tone of the contact.

“It’s more important pickin’ up the mail than stoppin’ for me?” the officer said in greeting.

“I’m just pulling in, man,” the sergeant said.

“Yeah, guess what? I don’t care….You better put this car in park, mister.”

From there, there ensued a “You did-I didn’t” ping-pong argument about whether the sergeant had actually run the red light. The sergeant’s side of the conversation was conducted “quietly,” in the Court’s account. The patrol officer consistently spoke “loudly” or “yelled.”

In condensed version, the action evolved thusly, according to the Court’s account:

With the sergeant’s police ID and license in hand, the officer repeatedly taunted the sergeant by asking if he thought he was “somebody special.” The sergeant denied it and calmly said, “You got a problem with me, man. I just got off work and I’m a little tired. Get your supervisor out here.”

Initially, the officer refused, but when the sergeant persisted he grudgingly radioed the request. In the few minutes that passed before the supervisor arrived, things escalated to a fever pitch.

The officer ordered the sergeant out of his car and when he complied, the officer “placed his hand on the sergeant’s shoulder.” Now the sergeant got loud.

“Take your hands off of me,” he demanded. “I’ll wait for your supervisor. What is your justification for putting your hands on me?”

“Because you’re running your mouth,” the officer snapped.

After a heated argument about legalities, the officer ordered the sergeant to put his service weapon on his car and come with him back to the squad. The sergeant hotly balked.

“I’m not going anywhere with you,” he said. “I’m not putting my gun on my car. Don’t touch me. Wait for your supervisor to get out here. My man, you’re out of control, you are out of control.”

The encounter rocketed to a climax. A backup officer rolled up and approached the sergeant with a CEW drawn. The two officers tried to seize the sergeant’s gun. The sergeant placed his hand on the holstered sidearm but did not draw it.

“Scuffling sounds are heard” off-camera, the Court’s description notes. Then “a Taser is heard on the tape.” The detective “cried out,” and the first officer said, “I got his gun.” The sergeant said, “You’re tearing my coat, you’re tearing my coat.” The backup officer yelled, “I don’t care.”

When the supervisor shortly pulled up, the sergeant was taken into custody. At the station, he was stripped down to his underwear for searching and was booked for interfering with an officer, a misdemeanor violation of a city ordinance.

It takes the Appeals Court two densely packed, single-spaced pages to detail the confrontation. “Given [the patrol officer’s] remarkable belligerence toward [the sergeant],” the decision states, “it is not surprising that the situation quickly escalated.”

In days that followed, the sergeant’s attorney claimed the traffic stop was racially motivated to begin with because the sergeant was an African-American.

EPILOGUE

The sergeant filed a civil rights suit in federal court against the suburb, the patrol officer, and others, claiming false arrest and use of excessive force. A District Court judge granted a motion from the defendants for summary judgment and dismissed the case.

A few months ago, the 6th circuit Court of Appeals affirmed that decision.

Setting aside the patrol officer’s communication style, the Court ruled that the sergeant was legally required to comply with the officer’s demand that he disarm himself. “Given the totality of the circumstances,” the decision says, “[the officer] could reasonably believe that the presence of a weapon posed a threat to his and [the backup officer’s] safety, in light of the escalating tension.”

Because the sergeant “would not relinquish his gun after repeated requests,” the Court states, the use of a CEW “was objectively reasonable under the circumstances.”

However you may view that opinion, raise your hand if you agree that this whole hot mess might easily have been avoided.

Our thanks to Atty. Michael Brave, Director, CEW Legal for Axon Enterprise, Inc., for alerting us to this case.

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