Use of Force-New Trends- Serious Concerns
PLEA Vice President/Grievance Chair
Use of force… It’s one of those dynamics that just goes with the territory in law enforcement. In the majority of cases, force applied in arrest situations is minimal and of no consequence. Other times it can look pretty violent and ugly no matter how justified. It’s kind of like the old saying about sausage: we all like to eat it; we just don’t want to know how it’s made. We’ve also heard the phrase about whether or not something will pass the headline test. Many times, no matter how justified, the force used just doesn’t play out well on the six o’clock news and the officer(s) and agency involved become the new whipping boys of the media for days or weeks on end as the incident gets tried in the court of public opinion. One of my former supervisors used to describe police work by referring to it as “a full contact sport.”
My purpose in authoring this article isn’t to preach against getting overzealous or caution against loss of control in a use of force situation. While sound advice, my concerns are coming from an entirely different perspective at this point in time. Review boards consisting of managers, civilians, and peer officers operating in a stress free, sterile environment will analyze an officers actions months after the incident in order to pass judgment. It’s a process that can often seem unfair when the involved officer had to make split second decisions while operating under extreme stress, possibly under conditions of limited visibility and minimal information. The system, for all its foibles, works pretty well most of the time.
Noted police psychologist Alexis Artwohl, who serves as a behavioral consultant to law enforcement, says it best: “Police officers have a very unique job. They go out and risk their lives doing it, and after they have done it, and done it well, they have now become a de-facto suspect in a felony crime.”
Artwohl enumerates some of the myths and misconceptions that officers are often subjected to by citizens and police administrators in a post use of force situation:
- An expectation that these [use of force] events will defy laws of physics.
- Expecting the officer[s] to defy the limits of human performance.
- Expectations that they will have perfect memory and make perfect decisions when the research clearly shows human beings are not capable of either of these things.
- That the training and judging of police officers is frequently based on myths, assumptions and personal opinions that may not necessarily be true.
As PLEA’s Grievance Chair I get to see most every grievance and investigation that comes through our office and can tell you that I, along with others in the grievance camp are seeing a disturbing trend with use of force cases that correlates directly with the arrival of our new Chief.
Shortly after his arrival, PLEA met with him to discuss issues surrounding two use of force cases. One involved the use of lethal force and the other involved only physical force. Both had received media exposure, had been talked about around the department, and discussed in the “court of public opinion.” As is often the case in the law enforcement community, there was also no shortage of personal opinions from both sides of the fence with regard to whether the force applied and tactics used were appropriate.
In the first situation, involving the use of physical force that occurred on Jan 25, 2011. The officer responded to a call of a combative subject at a school and ultimately delivered an impact push to an intoxicated female student, which caused her to fall to the ground. She had been physically fighting with school administrators and her own mother just prior to the arrival of the police. The portion of the incident in question, which occurred outdoors in the parking lot, was video recorded by a person with a cell phone and was eventually placed on YouTube several months after the incident actually occurred. The video clip promptly began picking up steam in “the court of public opinion.” The problem here is that a film clip rarely tells the whole story and viewers will tend to fill in the gaps on their own. An interesting side note to this is that the incident came to light only after the video was circulated on YouTube. The suspect didn’t complain, school officials didn’t complain, and the suspect’s own parent who was on scene didn’t complain.
Next began the blogging and bashing by persons who had only a portion of the story, little to no knowledge of state law, police department use of force policies or how officers are trained to react. When the officer was interviewed and gave his explanation for what he did, combined with our departmental policy on use of force, the picture became much clearer. In fact, use of force experts at the departments Tactical Training Detail who evaluated and reviewed the incident stated they were of the opinion that the force applied was in policy. A former PPD Commander, overseeing the academy at the time, [now employed with the City of San Bernardino] disagreed with the assessment of his own experts and authored his own memo saying he had spoken with “other experts” [no mention of who these “other experts” might be] and that he disagreed and felt the force was out of policy.
Our new Chief clearly had problems with the impact push. He told us he had watched the video several times and seemed to be caught up with the fact that the suspect had been knocked off her feet when the officer struck her (that’s probably why its called an impact push). The suspect was walking away from the scene when the officers arrived. The officer, in his interview, articulated that his intent was to grab the suspect and that as he ran up to her she turned with arms raised and fists clenched. A slow motion review of the video revealed the officers recollection to be accurate. As he ran up to her, his arms were out with hands open as if attempting to grab on to her. As he got closer, she twisted her torso, lifted her arms and clenched her fists. The officer perceived the threat and immediately transitioned to an impact push. We actually showed the Chief some color 8 X 10 freeze frame photos lifted directly from the video that showed the suspect turning towards the officer with her arms raised and fists clenched. We showed these same photos during the IRP process to explain why the officer’s application of force was justified. The PSB Commander seemed to feel they were irrelevant and wanted to discount them. He told us PSB was going to look at the video in its totality and not individual freeze frame sections. When ridiculous statements such as these are made it does nothing more than confirm that PSB isn’t really interested in certain pieces of evidence being presented, no matter how valid, if it doesn’t square with their pre-determined outcome. PLEA felt this evidence was extremely important since it corroborated the officer’s account of what happened and what he had seen just prior to the application of force. To the casual viewer watching the video at normal speed it appeared as if the officer had simply run up from behind with the intent of knocking the suspect to the ground.
In the second situation involving a lethal force incident that occurred on June 14, 2011, the officer shot a female suspect through a window on a hostage barricade. The suspect who was shot turned out to be the quasi-victim. It was later determined that the suspect and her girlfriend were playing games with the police by switching clothes and altering hairstyles etc. The suspect was armed and had demonstrated her willingness to use force by firing her handgun twice during the stand-off with police. In the ensuing on-scene investigation, the officer was essentially given a “thumbs up” by criminal investigators as well as an on scene representative from the County Attorney’s office indicating they had no problem with the shooting. Nine months later, February 2012, a use of force board convened to review the incident and the officer was found “in policy” by the board.
Not too long after the Use of Force board, we heard rumblings through the department rumor mill that police management was looking to reverse the Use of Force Board recommendation on the incident. A decision on the incident was delayed until the arrival of Chief Garcia.
PLEA had meetings with the Chief on June 15th and July 3rd to discuss a variety of issues. Both times the barricade incident was briefly discussed and both times the Chief gave no indication a decision had been made. During the second meeting on July 3rd, he told PLEA Board members Joe Clure and Will Buividas to have me call his secretary to set a meeting to discuss the issue, again indicating he had not yet decided.
After a long July 4th weekend my plan was to call the Chief’s secretary the following Monday, July 9th. That Monday morning, I received a call from the involved officer who informed me he had just received a letter served on him by his chain of command from the Chief informing him that his use of force was out of policy. I made it a point to call the Chief’s secretary to get an appointment on his calendar. An appointment was set for the following Monday, July 16th. The officer provided me with a copy of the letter he had been served and I noticed it was dated May 23, 2012. This was one week after the Chief was sworn in and prior to the two meetings where indications were given that he hadn’t made up his mind.
Fast forward to July 16, 2012. Jerry Gannon and I met with Chief Garcia for the express purpose of discussing the two use of force incidents. It was at this meeting that we began to get a glimpse into the thought processes of the new Chief with regard to use of force issues. Prior to his arrival in Phoenix, I had heard that the Chief was a firearms guy and had even done some competitive shooting. This gave me a sense of relief since folks with this type of background tend to understand use of force dynamics pretty well. My relief was short lived.
The Chief told us that the Tactical Training Detail should not be rendering opinions on whether an officer’s use of force is in or out of policy. He stated that the right to make a determination on whether an officers force is in or out of policy should be reserved to him exclusively and that the Tactical Training Detail should only determine whether or not the officer used a departmentally approved tactic or technique. The Chief also went on to tell us that we teach “distraction blows” at the academy.
All of this was a bit concerning. The Chief was correct on one point; as the head of the organization he does have the ultimate say and the right to overrule decisions with regard to disciplinary and use of force matters. However, this should only be done after careful consideration backed by sound evidence indicating the prior recommendation given by the DRB and or the UFB were incorrect. This also raises the question; why have a resource like a Tactical Training Detail with expert knowledge if you aren’t willing to solicit their opinion? Distraction blows? We apply and escalate force because there is a legitimate reason and or articulable threat to be able to do so based on the provisions of state law or department policy. In my 24 years on this department I’ve never heard of or been trained that we have a law, policy or methodology that addresses or advocates the use of “distraction blows.” What this does call to mind is all of the recent cases where we have seen officers disciplined for striking subjects for what they perceived to be legitimate reasons, including an officer who recently got an 8-hour suspension for striking a suspect who spit in his face. I can only imagine what the DRB would have said if any of these officers had claimed they were simply administering a “distraction blow.”
At our July 16 meeting, the Chief led off by stating it was his belief that the officer involved in the lethal force incident had an accidental discharge. I found this statement by the Chief to be nothing short of astounding as there was nothing in the criminal investigation, internal investigation, or Use of Force Board hearing that would indicate this was the case. Information contained in the reports and interviews as well as the officer’s statements at the Use of Force board indicated he had pulled the trigger with deliberate intent.
The Chief then dropped this bombshell: in a use of force situation there are only three entities that will ultimately determine whether an officers use of force is in policy: the media, the citizens and the Police Chief. Neither Jerry Gannon nor I are usually at a loss for words, but I think this statement equally dumbfounded both of us. So much for minor stuff like state law, department policy, Supreme Court case law, criminal investigations, internal investigations, and use of force review boards, all entities that are supposed to be used in determining whether an officer’s force is in policy.
I showed the Chief a copy of the dated memo served on the officer with the other key dates written in. I laid out the timeline and asked if a decision had been made on May 23, why he led us to believe, in two separate meetings held on later dates that he hadn’t made a decision? The question was legitimate and it certainly wasn’t my intent to play the gotcha game. I figured he would have some sort of plausible explanation for us, but after pondering the information for a moment he said: “Ken, if this is the way we’re gonna do business I’m just not gonna talk to you guys anymore.” “Are you trying to tell me that every time we sit down over a cup of coffee that it’s some type of official meeting?”
This was the third time in the meeting that we were floored by the Chiefs response. My viewpoint on this was twofold. First, that if anyone has the gall to ask the Chief a hard question or do anything that might remotely put him on the spot; his solution is to threaten to cut off future communications. Second, it would seem that according to him, there are now “official” meetings and “un-official” meetings. My take in this part of his comment is that if it’s an “official meeting” that we need to be truthful in our dealings with one another but that if it’s an “un-official” meeting both sides have a green light to blow sunshine up each other’s backside. There is only one word for comments such as these made by the chief executive of the organization. UNREAL.
In the memo to the officer, the Chief listed three reasons that he was finding the officer out of policy. I pointed out to the Chief that the reasons listed weren’t actual policy violations and that one of the reasons listed didn’t even make sense. It seemed the Chief had merely come up with arbitrary reasons not grounded in fact for justification to find the officer out of policy. He also seemed to have forgotten that, per Supreme Court case law, police use of force is judged using the “reasonable officer” standard combined with what the officer knew at the time force was applied and not what became known after the fact.
I personally cannot recall a time on our department when a Use of Force Board found an officer in policy where the Chief then reversed the board. The reason reversals on UFB recommendations are almost non-existent is that the facts of the case are reviewed by a panel consisting of an Asst. Chief, two Commanders, peer officers, citizens and police department subject matter experts. PSB is on hand to present the case to the board and the involved officers are also on hand to recount to the board what happened in their own words and to answer questions. Most Chiefs aren’t going to go down the path of reversing a decision made by a panel with this many people and this level of expertise that has reviewed the case in depth. To reverse a decision in this manner without factual basis is unconscionable and nothing less than an indictment against the process itself.
These two use of force cases represent only a fraction of our concerns. The following list summarizes our concerns based on recent and or continuing trends:
- DRB recommendations are being routinely overturned in favor of higher discipline.
- Use of Force board recommendations being reversed.
- Regardless of whether force used is legal and in policy, apparently citizens, the media and the Chief will ultimately determine your fate.
- We’ve been told the new viewpoint with regard to DRBs that if an officer goes before the DRB they will receive a suspension. Apparently the board can no longer decide that a given case doesn’t warrant a suspension and recommend that it be sent back to the officers chain of command for a written reprimand.
- The fact that PLEA has actually seen a trend in increased discipline for same or similar misconduct depending on the amount of media exposure.
- The arbitrary use of “causing major impact to the department” which is a vague, grey, subjectively applied standard at best.
Police management and city government expect you to go out on the street and put it all on the line daily and most of us don’t have a problem with that. It’s why we became cops in the first place. We all knew we weren’t going to get rich doing this job and we knew going in that it was a high-risk profession. Most of us signed up because we wanted something more exciting than the typical 9-5 office grind. We also did it out of a desire to serve our fellow man. As cops we are the sheepdogs protecting the sheep, keeping the wolves at bay. We take care of the unpleasant tasks that the vast majority of society just can’t handle. It takes a unique cat with unique DNA to do the job. Noted author George Orwell summed it up best with his famous quote: “People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.”
I challenge anyone to tell me what other career professional out there, other than a military soldier in combat, starts their day walking out the door locked and loaded with 40 rounds of live ammo knowing, that in the course of their work day, they may have to make a split second decision resulting in the death of a human being, a fellow American citizen no less, and, knowing that in a dicey situation you could be the one in a body bag before the end of your shift.
The least an officer can expect if they have to use force is that their management team will have their back. On that topic, let’s be clear. When I say, “have their back” I’m not talking about engaging in a cover up. I am talking about treating the involved officers, even those accused of criminal conduct, professionally and with dignity and compassion regardless of how controversial. I’m talking about not fanning the flames by “throwing officers under the bus” because it is the politically expedient thing to do. It also means doing complete, thorough, accurate and UNBIASED investigations without high-ranking police officials or politicians trying to insert themselves into, or exerting influence over the process.
What we have seen in the last several years seems to indicate police management isn’t necessarily interested in due process, fairness, or the basic judicial concept of “innocent until proven guilty.” Unfortunately, police administrators are politicians who work for other politicians. They will sometimes cave to political pressure or their own biased opinions, formed in the heat of the moment, before all the facts are known. Oftentimes, they will react out of a sense of doing what’s politically expedient to protect themselves, the department or the city. In many cases, police administrators won’t hesitate to look for a scapegoat at the lowest level if they believe it will keep politicians and citizen groups off their backs.
These are definitely concerning times in our organization. It can be hard to stay motivated, have high morale, and “put it all on the line” daily when one unintended misstep can make you the next casualty of your own department. My advice to my fellow officers who work the street is to do what you can to minimize your exposure to use of force incidents. Some may interpret this as minimizing OV work or not going code-6 unless absolutely necessary. Everybody will have to apply his or her own interpretation on how to minimize risk. This can be difficult when balancing personal safety and career survival against unnecessary exposure while still serving the community. This is made more difficult considering the current push department wide for officers to increase recap numbers. The one thing that cannot be sacrificed is answering the calls to serve the citizens we are sworn to protect and making backups for your fellow officers.
Although lengthy, the purpose of this article is to keep you informed and up to date on some of PLEA’s issues and concerns with trends on use of force. Some of the things mentioned are my opinions based on my training, experience, observations and my current position as PLEA’s VP and Grievance Chair. I’m sure some in management might disagree with some of my viewpoints and perspectives and that is certainly their prerogative. For the officers reading this you are smart enough to draw your own conclusions.
If you find yourself involved in a use of force incident, call PLEA immediately.
IT IS OUR STRONG RECOMMENDATION THAT YOU DO NOT GIVE STATEMENTS TO CRIMINAL INVESTIGATORS UNTIL YOU HAVE FIRST CONSULTED WITH AN ATTORNEY.
A portion of your monthly PLEA dues goes for legal coverage. USE IT!
Stay safe, keep your powder dry, and watch your six.