May 2019 Q&A

Post your questions in the comments, on any subject, and I will be glad to answer them in the next Q & A.

This month I focused on the police shooting questions I received.

• Does public perception of law enforcement affect officer’s safety?

• In police altercations, should subject or objective truth carry more weight?

• How should the public weigh the feelings/perception of the officer when objective facts of the incident?

• Is there a potential for abuse of Graham v. Connor and Tennessee v. Garner

• How are video cameras impacting objective reasonableness in the eyes of the public?

(Watch video or read transcript below)

This month I’m focusing on police use of force because I received really in depth, complicated, and challenging law enforcement questions.

Does public perception of law enforcement affect officer safety?

The short answer is absolutely. The long answer is that right now, law enforcement use of force, (when officers shoot people, get in fights, et cetera) is changing rapidly to the police officer’s detriment. They are far more reluctant to use force when it’s appropriate and needed.

A lot of people probably think that’s a good thing. Perhaps sometimes it is a good thing, but in the bigger the picture, when the police are afraid to use force to arrest people, and when they’re afraid to shoot dangerous people, they’re only recourse is to stop interacting with criminals.

When officers are so afraid to do anything, they’re understandably going to protect themselves by no longer contacting people. They will cease to stop cars or confront suspicious people, particularly when certain races are involved because there’s a higher political risk. It may seem like a cool idea where the police are reluctant to mess with people, but you must look down the road at what this is going to do in the long run.

When police are reluctant to do their job, crime will rise. This is not a possibility; it’s a guarantee. The more hostile pressure that comes from the media, public, and legislators, the more police are going to stop during their job and the more crime will rise. That’s a fact that is already happening.

In only the last couple of years, officers beginning to be arrested after officer involved shootings. Officers should be held accountable for making mistakes, but now the arrests are happening before an investigation, before a trial, before anything. That’s very dangerous situation.

That’s the direction where law enforcement is going, and even if you’re not experiencing increased crime because you live in a nice neighborhood, it’s just a matter of time before the pendulum swings much further than it currently has.

Should subjective or objective truth carry more weight during police altercations,?

Subjective truth is what the officer believed happened. Objective truth is what actually happened after looking at all of the facts.

Here is an example. Imagine a call of a man with a gun. When the officer gets there, he confronts the man who reaches for a waistband, but grabs a cell phone. In those split seconds, the officer thinks that man is reaching for a gun. But what actually happens is that he’s reaching for his cell phone.

The subjective truth is the officer perceived that he was reaching for a gun. It was true for the officer, because he fully believed he could have been reaching for a weapon, even though the objective truth was that he was reaching for a cell phone. So which should carry more weight? It’s a very good question.

What really should matter is not necessarily the subjective truth of the individual officer, nor does the actual objective truth matter entirely. What matters is determined by the reasonable officer’s standard—the reasonable officer’s subjective truth. That means that it’s not entirely relevant what the individual officer thought in that moment. What’s relevant is whether a reasonable officer, given the same set of circumstances, would likely come to the same conclusion or similar conclusion as the individual officer.

Let me try to explain it with an example.

Imagine an officer is presented with the scenario I gave a above where a reporting party reports that a man has a gun and is wearing a red baseball hat and orange pants. When the officer gets there, he finds a man with a red baseball hat and orange pants.

When the officer arrives, he confronts the man who the reporting party said had a gun. The officer orders him to stop and put his hands up in the air. If the man stops and put his hands up in the air, the likelihood that he gets shot is virtually zero.

But criminals don’t listen to the police, and the more they become emboldened, the more they resist arrest. If instead of putting his hands up in the air, the man reaches down for a waistband, were weapons are typically held, and he grabs a black object, it would be reasonable for most officers to believe that the man was reaching for a weapon.

What most reasonable humans do in those circumstances is listen to the police and cooperate by putting their hands in the air. But since the man matches the description of a man with a gun, is defying a legal order from a police officer, and is reaching for a small device inside of his waistband, it would be a reasonable to believe he’s reaching for a weapon.

It’s not necessarily the individual officer’s subjective belief, nor is it necessarily the objective facts that matter. It’s the totality of the circumstances that influence how a reasonable officer would react.

In this example, the objective facts are that the man’s not complying with the officer’s orders and he’s reaching for a black device in his waistband that later turns out to be a cell phone. The subjective fact is that the officer believed the man was reaching for a weapon in the waistband.

The reasonable officer standard comes into play in determining what would most reasonable officers to believe given that set of circumstances. If a reasonable officer would believe that the suspect was reaching for a gun, then it would be a reasonable for the officer to use force.

What many are pushing for today is an objective standard where it’s irrelevant what the officer believed was happening in the moment, but instead they seek a standard that demands 20/20 hindsight.

Is there a potential for abuse with Graham versus Connor or Tennessee versus garner?

Tennessee versus Garner is the case that clarified when an officer can or cannot shoot a fleeing felon. At one time, officers could theoretically shoot someone in that back who had committed a felony and was fleeing.

That turned out to be too much for the public and I think most of us would agree. We don’t like the idea of someone being shot in the back who is running from the police for a fraudulent check. That’s unreasonable based on societal expectations.

Tennessee versus Garner clarified that officer cannot shoot shooting someone just because they committed a felony and are fleeing. But what the courts are okay with is shooting someone who’s fleeing and who present a threat to the public or officers if that person is not immediately apprehended.

If you watched my favorite movie Heat, which is the best cops and robber movie of all times, the suspects shot up the bank the police were shooting at them as they were fleeing. That’s a perfectly legitimate example of when Tennessee versus Garner would allow officers to shoot a fleeing suspect, because if they’re not apprehended, they present threat to the public.

Graham versus Connor is complicated. I don’t want to get into it too much, but Graham versus Connor basically clarified what I described earlier regarding the reasonable officer standard. Meaning, the courts are not going to hold the police to a set a set of standards based on the actual facts known in hindsight.

Instead, the courts have said they understand these incidents happen rapidly under extreme pressure and under very dangerous circumstances. The courts acknowledged that officers are going to make less than perfect decisions because they’re in the heat of battle. Graham identified the reasonable officer standard that I already explained.

Now that you understand the basics of those two cases, let me return to the original question—is there a potential for abuse for those cases?

Absolutely. There’s a potential. There’s a potential for abuse from anyone when you give them any kind of power, especially the amount of power that police officers carry. There a potential and there is abuse.

I’ve been annoyed by cops. We are dealing with human beings and some of them will take things further than they should, but until we have robot police officers, we’re going to have human beings doing it, so what we they do?

Departments have an exhaustive process to try to weed out bad apples entering the business. I think there’s a higher success rate with those who enters law enforcement than any other industry. Then they have an exhaustive police academy and field training program combined with many levels of supervision, management, and oversight.

Police officers live every day in constant fear of making a mistake and losing their job and being jammed up by the public. All the video cameras today provide even more accountability. There are a lot of checks and balances to keep officers from abusing their power.

Graham versus Connor does not provide the freedom that many mistakenly believe it does. The courts are not going to solely rely on the officer’s statements or beliefs. Instead, they’re going to rely on what would a reasonable officer do given the same set of circumstances.

If an officer walks up to a person and decides he is afraid, pulls out a gun, and starts shooting, that by itself is not good enough to justify a shooting. Just because the officer is afraid is not enough. You need that subjective fear combined with some overt action, or set of facts, that would make most officers afraid in that same set of circumstance.

Quite frankly, there are a lot of cowards in law enforcement. There are a lot of people that don’t belong in the business, so they’re probably afraid more often than most officers. These are officers who are unprepared, out of shape, or don’t have the right mindset.

Just because they’re afraid, that does not meet the criteria outlaid in a Graham versus Connor. They’re subjective interpretation alone is not enough. Instead, it matters what would most trained officers do given the same set of circumstance.

Yes, there’s a potential for abuse, but there are so many checks and balances that minimize that abuse. There is still going to be abuse, but I can tell you that most of the public perception of abuse is not actually police abuse. Instead of abuse, it’s actually ignorance on the part of the public combined with intentional deceit and lies from the media to paint a picture that’s not at all true.

I think the greatest failure in law enforcement is that they’ve failed at PR. They’ve done a terrible job of public relations, so the public is ill informed about how police officers act and what they do. If the public had a better understanding of the police officer’s point of view, perceptions wouldn’t be left to the media’s intentional deceit combined with the public’s ignorance

How are video cameras impacting objective reasonableness in the eyes of the public?

I think it’s good that people have cell phones and they’re filming things. I also think it’s good that officers have body cameras. I believe most officers want the body cameras and welcome them. Ninety‐nine out of a hundred times, the cameras vindicate the officers because there are a lot of false allegations of wrongdoing, so the cameras are good thing.

But here’s the problem with the cameras. We’ve all seen when the cameras come on, it’s usually midway through the altercation. People aren’t generally filming things that are boring. They wait to turn the film on until there’s some sort of action. When the cameras are turned on, they capture half of the incident. They’re not capturing the part of the incident that led to the altercation. That’s usually a very important part of the whole situation.

Cameras only capture one angle, which is not necessarily the angle the officer sees. Just because something is captured on camera doesn’t mean the officer sees it or has that same information.

The other challenge is that when the public watches these videos, the public has the advantage of slow motion, rewind, and replay. They have the time to watch and stop the video, think about it, analyze the situation, and then come to a logical conclusion of what should or should not have been done.

Those are artificial circumstances. When you’re watching it from the safety of your home while able to rewind, pause, zoom, and watch it over and over without stress, that’s a very different experience than what the officer is going through.

Anyone who has been in combat or a situation where your life’s been in danger, understands the changes that happen within the body during stress. Your ability to think, see, hear, feel, smell changes. All of your physiology changes under intense stress.

When you’re watching it from home without stress, you’re having a totally different experience than the officer is experiencing in the heat of battle.

Although the cameras are a benefit, to some degree they are a detriment as well. That doesn’t mean they should be removed. The cameras are good, but we can’t allow ignorant politicians to determine the fate of police officers based off of a less than complete story told in a video.

Not all, but some of the police chiefs, sheriffs, and district attorneys across the nation are ignorant fools, and obviously, most in the media are incompetent, or opportunists trying to take advantage of the situation. The problem is when these types of uninformed idiots use what they see on a video to determine an officers’ fate, and also to decide public policy. That creates a very dangerous situation.

Officers are reluctant to do their job because of how the public, media, and legislatures will interpret their actions. It is a real problem where untrained and uninformed people are driving public policy regarding how police officers should react in a life or death situation.

Officers are public servants so the public should have oversight and influence on how officers behave. Laws should represent the beliefs and opinions of the public. The problem is that the public is completely ignorant about the laws, training, and protocol officers follow.

They’re just as ignorant as I am about performing heart surgery. If I hire a doctor, I should not be awake during the surgery telling the surgeon how to be working on my brain, heart, or leg. That would be insane. Instead, I would hire a competent person and trust that he knows how to do his job better than I do.

The same is true of the mechanic of my car. When I hire a mechanic, I try to find a competent person by doing some research to make sure that person is legitimate, trustworthy, and knowledgeable. But in the end, I’d pay him to work on my car and I trust that they’re going to do the right job.

That requires a certain amount of trust, but I’m not watching the mechanic repair my transmission and pointing out what he should or shouldn’t be doing, nor will I accuse him of making a mistake because it’s just not my expertise.

In the big picture, the public should have oversight, but only from a broad perspective. When it comes down to the details, I don’t think the public should be micromanaging how the police are doing their job.

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