Comment Of The Day: “Unethical Quote Of The Month: Wisconsin Governor Tony Evers”

The current effort by a large segment of an entire political party to denigrate the character and motive of police is one of the most bizarre and self-destructive episodes of cultural madness I have ever seen or read about. I place it right below the Dutch tulip mania of the 17th Century. It makes as much sense  as  if a movement developed to eliminate the medical profession as  a reaction to some egregious examples of medical malpractice. The Boston Red Sox, to name an example prominent in my consciousness, used to regularly host special “days” for law enforcement personnel. As recently as 2013, the team honored the Boston police for its  response to the Boston Marathon Bombing. Now a giant banner is plastered across the empty bleachers in Fenway Park extolling “Black Lives Matter,” a direct and calculated attack on the integrity of law enforcement. I keep expecting to read that CBS has cancelled its long running hit drama “Blue Bloods” after the netwrork headquarters at 30 Rock was attacked by a mob. That show, anchored by conservative Tom Selleck, now appears to exist in some kind of weird parallel universe where police officers are respected and trusted.

In his timely Comment of the Day, James Hodgson begins,

It is my intent to comment on prior remarks that have been made concerning police use of force, including the “objective reasonableness” standard, police use of force training, the dangers of police work, the issue of whether a police officer’s life is “worth more” than the life of any other individual, and the speculation that police officers’ use of deadly force is treated less seriously than similar non-police uses of force.

What’s this? Someone who actually knows something about how  the police operate? What a unique and exciting concept!

James Hodgson’s Comment of the Day on the post, “Unethical Quote Of The Month: Wisconsin Governor Tony Evers” continues…

During my career (1974 – 2014) I saw the use of force by police curtailed substantially. First, out of the civil rights era and the Vietnam War protest era, much-needed internal changes in police management and training produced officers better trained and more adept at handling themselves and others with greater skill to avoid the necessity of using force. In 1985, Garner v. Tennessee eliminated the “fleeing felon: rule and restricted the use of deadly force to cases where “”the officer has probable cause to believe that the subject “poses a significant threat of death or serious physical injury to the officer or others.” Although state law prior to Garner had permitted the use of deadly force to stop a fleeing felon if all other reasonable means of apprehension had failed, in practice very, very few fleeing felons were ever shot, either because agency policy forbade it, or because (in the absence of such policy) officers employed more personal poise and restraint in the execution of their duties.

The standard of objective reasonableness has been problematic since Graham v. Conner first applied this standard to police use of force. (The same standard had previously been applied in other areas of the law, like determining whether an attorney’s assistance of counsel was ineffective.) As courts and juries in excessive force cases began applying the standard, it quickly became evident that in determining whether a particular use of force was objectively reasonable, courts and juries across the country were arriving at widely varying results. So, rather than having a clarifying standard for when use of force was righteous, much ambiguity remained. (The Court itself had noted in Graham that the concept of objective reasonableness “is not capable of precise definition or mechanical application.”)

For the police trainer, this posed a new challenge. Agency administrators, reacting to Graham, began pressing us to provide training to ensure that officers’ use of force would be judged reasonable. Our collective response (mine, along with the training personnel with whom I worked and whom I supervised) was that the real use of force standard had already been set with Garner. The new task for trainers was to better teach not only the thought processes by which an officer determined that a subject “poses a significant threat of death or serious physical injury,” but also how to fully and articulately communicate the situational facts and circumstances that precipitated the officer’s decisions and actions. This begins with a thorough understanding of the law concerning assaultive offenses, self defense and use of force. Next requirement is a review of agency policy and procedure regarding use of force. (Agency policy may be and frequently is more restrictive than state law.

One example is the case of “warning shots” which are not typically against the law but are almost per se reckless endangerment.) Additionally, accurate, articulate report writing is necessary to fully and thoroughly document use of force incidents. Officers typically react to the aggressive behavior of other people and are not the initiators of force scenarios. Thus they are also taught about the disadvantages of reaction time and learn how to tactically move away from a force hazard while reacting effectively to counter it. Officers are also taught a variety of skills of which the average person is not even aware. For example, I taught a course called “Characteristics of Armed Individuals,” which trains officers how to detect subjects armed with concealed weapons by observing telltale mannerisms and habits that “telegraph” the presence of a weapon and/or signal that a person is about to produce a concealed weapon. (This instruction was developed by the U.S. Secret Service for training their agents)

All this training (and more) is designed to guide officers in making good use of force decisions and reduce the tactical disadvantage officers face in reacting to a subject’s aggression. Establishing what is objectively reasonable calls for agencies to provide as much training and guidance as possible for officers making force decisions and to establish a healthy organizational culture that promotes accountability for following laws and well thought-out procedures. Building trust in the community establishes a good reputation for proper policing and a climate that presupposes good will on the part of officers, absent evidence to the contrary. All these things together can help establish that an officer was fulfilling the standard of objective reasonableness.

It has been pointed out that policing is not statistically the most dangerous occupation when it comes to the full range of line of duty deaths. Of course, this is true, but one aspect that is often overlooked in that assessment is that a significant number of line of duty deaths involve an officer actually being murdered while on duty. This is a hazard not commonly experienced by most other “dangerous” occupations and certainly one that weighs upon an officer’s mind to a greater extent than the possibility of falling from a height, being struck by lightning or run over by a streetcar.

Concerning the nature of line of duty deaths, I was an instructor for another course called “Below 100,” a national training initiative intended to reduce U.S. line of duty deaths to below 100 per year, which has not occurred since 1944. The primary concepts taught in Below !00 are “Wear your (seat) Belt, Wear your (ballistic) Vest, Watch your speed, WIN – What’s Important Now, and Complacency Kills.” These concepts, in recognizing the significance of traffic related deaths, encourage officers (and their supervisors) to reduce high speed driving to the necessary minimum and utilize safety protocols and equipment that reduce injury and death. “WIN” and “Complacency Kills” address exercising good decision making skills and maintaining situational awareness during all work activities.

Is a police officer’s life worth more than any other citizen’s life? In the abstract, of course not. The difference is in the role that each person holds in society. In the keeping of public order police are first on the scene. A police officer on duty, following the law and the rules of his or her agency in the public interest, is representing not himself or herself, but the legitimate police authority of the state. In employing that authority, the officer must be held to a high standard of accountability, but the state has an interest in emphasizing the importance of the officer’s role in serving and preserving our laws and justice system and by extension, our way of life. Any assault on an officer is attacking more than an individual, it is an attack on our orderly way of life. Going so far as to kill a police officer is viewed as a most heinous attack on our system of laws. In our current times, we also see some attacks on police conducted as acts of domestic terrorism. These are the reasons why we have specific laws against assaulting / killing police officers. (Other countries not having such laws per se, often list the killing of an officer as an enhancement factor to a charge of murder, ensuring a harsher sentence,) Killing a police officer is usually prosecuted with great vigor, to make it clear that our society considers violence against police as an intolerable act.

I would also point out that, counter to any allegation that police “get away with murder” or are somehow given carte blanche by courts and juries in the use of force, in my experience often legitimate “civilian” uses of deadly force receive much less intense scrutiny than those of police, absent clear evidence of criminal intent. It seem to me that police are -and should be- held to a higher standard.

Policing in America is a highly localized activity. There are over 700,000 officers serving in 18,000 agencies in the US. Almost 90% of agencies have less than a few dozen officers. Agencies of ten or fewer are common. Most communities (cities, counties) have the quality of law enforcement that they insist upon and are willing to pay for.

All of the above is based on my own experience in the organizations I worked for, your mileage may vary.

18 thoughts on “Comment Of The Day: “Unethical Quote Of The Month: Wisconsin Governor Tony Evers”

  1. All of the above is based on my own experience in the organizations I worked for, your mileage may vary.

    Of course it does.

    I would understand a desire to eliminate the very institution of law enforcement if one’s only experience with law enforcement was the Chicago PD.

    • Right…. But at some point, who’s fault is that? Chicago has been a Democratic stronghold longer than either you or I have been alive (unless you’re 80 years old and remember the Thompson years). A Democrat Chief under a Democrat Mayor with a Democrat City Council and a Democrat State House and Senate, with a Democrat governor can’t root out corruption and racism in one of the most Democrat-voting districts in America, even given the better part of a century. Blame Trump.

      The fact is that in a population of 800,000 officers, some of them are bad. Those bad ones have to be dealt with. I’m all for empowering police departments and dis-empowering police unions to make that happen. But there’s no logic behind the idea that because Democrats can’t get their poop in a group in the cities they hold, that the problem is the institution of policing.

    • I would understand a desire to eliminate the very institution of law enforcement if one’s only experience with law enforcement was the Chicago PD.

      I’ll hold you to that.

  2. I already replied to this comment in the original thread, but I’d like to take the opportunity here to point out how seemingly benign terms, when only vaguely construed and taken in isolation, can mask very real problems that arise from specific applications and their interaction with one another.

    Let’s start here:

    All this training (and more) is designed to guide officers in making good use of force decisions and reduce the tactical disadvantage officers face in reacting to a subject’s aggression

    What is meant by “reduce the tactical disadvantage officers face in reacting to a subject’s aggression?” The disadvantage is rarely one of numbers, or firepower. We’re talking here specifically of the disadvantage of reacting, as opposed to acting. In other words, we’re talking about pre-emptive action. Since we’re talking about “good use of force decisions”, we’re talking about the pre-emptive use of force. Since this is offered as the alternative to “reacting to a subject’s aggression”, we’re talking about using force against people who have not yet offered any aggression. That’s highly problematic, especially knowing that this force may rise to the level of lethal force.

    Let’s take a look at another interlocking part of this puzzle:

    Officers are also taught a variety of skills of which the average person is not even aware. For example, I taught a course called “Characteristics of Armed Individuals,” which trains officers how to detect subjects armed with concealed weapons by observing telltale mannerisms and habits that “telegraph” the presence of a weapon and/or signal that a person is about to produce a concealed weapon. (This instruction was developed by the U.S. Secret Service for training their agents)

    As it happens, I am aware of some of these “telltale mannerisms”, which include things like swinging one arm but not the other while walking. This happens to be a mannerism I myself acquired years ago from marching at the “Shoulder Arms” in the Canadian Forces Reserves, and never quite lost, even though I never carry a concealed weapon. So obviously, these aren’t reliable indicators of an armed person, and that’s just one supposed indicator out of many. What percentage of people who swing only one arm are carrying a weapon? What’s the false positive rate? Nobody knows, it’s not a teaching derived from scientific study. Further down, we find another clue:

    Concerning the nature of line of duty deaths, I was an instructor for another course called “Below 100,” a national training initiative intended to reduce U.S. line of duty deaths to below 100 per year

    Nobody knows the false positive rate, because nobody cares. The training is designed to minimize false negatives, to keep officers safe, not to protect the rights of civilians. Putting it all together once again, it’s designed to keep officers safe, by triggering the use of force, against non-aggressive civilians, based on any number of cues of dubious reliability.

    • > What is meant by “reduce the tactical disadvantage officers face in reacting to a subject’s aggression?”

      There’s a lot of literature around aggression/response patterns, “OODA-loop” is probably the most well known.

      > marching at the “Shoulder Arms” in the Canadian Forces Reserves

      Nice strawman. Specifics weren’t elaborated upon, so you had to provide an absurd one to beat upon.

      > triggering the use of force, against non-aggressive civilians

      Well, now you’ve flipped the whole argument on it’s head. We’re talking about responsiveness to aggressive suspects here, but please do bring facts and arguments about invalid initiations of aggression by police. All drug raids are inherently so, and Breonna Taylor is dead because of it. Police training targets like those seen at the top of the post are others–look closely–it’s actually an aggressive pose disguised as non-aggressive. Other examples I’ve seen are “no shoot” targets holding caulking guns, and this is well represented in popular culture, the “Men in Black” trope where Will Smith’s character shoots the school girl in the head while leaving all scary looking aliens alone because they “weren’t aggressive”.

      • Yes, I know all about OODA loops. That has precisely nothing to do with what we’re talking about here. The idea that swinging only one arm is an indicator of a concealed weapon is not a strawman, see Murray v. State of Delaware (2019). Specifics were not elaborated upon for a very good reason, because those specifics are incapable of standing up to scrutiny.

        This is NOT flipping the argument on its head. The argument is about nullifying the tactical disadvantage in reacting to aggression. The nature of the disadvantage lies explicitly in having to react to what has already happened, and it is therefore logically unavoidable that nullifying that disadvantage relies on taking pre-emptive action. It’s just that “reduce the tactical disadvantage officers face in reacting to a subject’s aggression” sounds better than “using force against people who haven’t yet done anything aggressive”.

        • What non-aggressive false positive deadly force scenarios are you referring to?

          Sure, there’s the occasional wallet and cellphone being mistaken for a gun–but shoot/no shoot training is in place to mitigate the “false positive” here, but you are implying that this type of training does not exist. Do I have to find these edge cases for you, like Daniel Shaver?

          • Daniel Shaver and Terence Crutcher are two examples I’ve brought up recently. There was Sureshbai Patel, the Indian grandfather who got flattened for not obeying police commands (he doesn’t speak English) – disobedience to commands is ALSO on the list of threat indicators. Even if those commands are unintelligible, impossible or contradictory. That’s what got Philando Castile.

            But most of the false positives we’ll never hear about, because they don’t result in fatalities or serious injury, but remain nonetheless unjustified uses of force against US citizens. NYPD’s Stop and Frisk program was ostensibly to take weapons off the street, but only ever found any in a tiny percentage of stops. They only found [b]any[/b] evidence of an offense in about 25% of cases, making [b]most[/b] stops false positives.

          • And need I remind you that, while you may like to call unjustified killings “edge cases”, the same is true of the murders of police officers. Except the we pay police to assume personal risk for the protection of the public, not the other way around.

  3. I echo “Excellent comment.”

    Lest we overlook the mindset that predominates the actual thinking of current enemies of current police, I took part of one of Hodgson’s paragraphs and substituted terminology accordingly.

    “Is a rioter’s life worth more than any other citizen’s life? In the abstract, of course not. The difference is in the role that each person holds in The Revolution. In the keeping of public disorder rioters are first on the scene. A rioter, ever on duty, following the aims of The Revolution and the mandates of his or her agency in the interest of The Revolution, is representing not himself or herself, but the righteous authority of The People and Leaders of The Revolution. In employing that authority, the rioter must be permitted unlimited liberty to wreak anarchy, but The People and Leaders of The Revolution have an interest in emphasizing the importance of the rioter’s role in serving and preserving the aims and desired outcomes of The Revolution and by extension, The New Way of Life to be afforded by The Revolution. Any assault on a rioter is attacking more than an individual, it is an attack on The Revolution. Going so far as to kill a rioter is viewed as a most heinous attack against The People On The Right Side of History.”

  4. “What is meant by ‘reduce the tactical disadvantage officers face in reacting to a subject’s aggression?’”

    I was NOT talking about preemptive action. Preemptive strikes are part of warfare, not of policing. Forgive me if I was being inarticulate. I was referring to the very knowledge and skills (among others) that I listed in the preceding paragraph, teaching officers to be better prepared to react to a suspects actions. Want a few more examples? If a subject in a traffic stop pulls a gun, it is helpful to understand the mechanics of shooting from inside a vehicle so the officer can move in a manner and direction that makes him or her less of a target. If a suspect pulls a knife, it is useful to understand the necessity and skill of putting distance between the attacker and officer, even as he or she prepares to employ deadly force against the attacker (it would be so embarrassing to fatally wound a knife attacker but still be seriously stabbed before he dies). Officers also need to know the psychological effects of being shot, learning that just because they are wounded does not mean that they are out of the fight, and the mental process of pulling through the shock and surprise to continue their defense. Again, these concepts, taught in the classroom and ingrained through extensive stress-induced training scenarios, are part of a process to help officers learn to adapt quickly to unfolding dynamic situations that may work out according to plan or may go south in an instant.

    Jack, thanks for the COTD.

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