Are the Actions Taken in Ferguson and New York City by Protestors Having a Negative Result on Officer Safety Already?

By Dr. Peter A. Barone, Esq.

In review officer involved shootings everyday in my effort to complete my study of 6,000 OIS's cases nation wide. Today when I was reviewing a couple of cases two in particular caught me attention, and they really made me stop and think about what trainers have been saying is one of their worst fears concerning officers encountering deadly force situations on the street.

CASE ONE:

The first case comes out of the City of Chicago and eventually ended up as an OIS where the subject had to be shot and killed to stop his attempted murderous actions against law enforcement officers.

The officers were dispatched to a call where a troubled 25 year old man was threatening to commit suicide. When the officers who were dispatched to this call arrived on the scene they observed a young man sitting there with a knife in his hand. As soon as the officers exited their police vehicles the young man immediately left the area where he was standing and literally charged directly at the officers who were dispatched there to try to assist this 25 year old man.

This 25 year old man focused on one of the police officers, for no apparent reason,  and actually came up on him and then stabbed the officer not once, but two times in his vest. After stabbing the officer two times in the vest he was allowed to walk away and began to walk, still with his knife in hand, in an eastbound direction from the area where he had just stabbed the Chicago Police Officer in his vest two times. At this time the officers decided they should engage him since he did still have the knife and did demonstrate that he was a danger to them and anyone else that might be around the area he was walking in at the time. The officers engaged him and asked him to put his weapon down at which time his response to the officers request was to once again charge at the officers trying to stab one of them for a second within minutes. It was finally at this point in time that the officers used deadly force against their attacker. He was shot twice in the torso and was transported to the hospital where he was later pronounced dead.

The part of this that concerns me is the question which goes like this: "Did they wait too long after having one of the officers stabbed twice and then being charged a second time to actually use deadly force, or any force at all?" and if so "did they do this due to what has been happening all over the country with the major focus being in Ferguson and New York City?"

SECOND STORY:

The second story comes out of Dallas Texas and in this incident the officer was very lucky and did not have to fire his weapon to subdue the armed subject.

Tuesday night while on his way to work in an plainclothes capacity this officer noticed out of the corner of his eye that there was an altercation going on outside of a liquor store and so decided to pull into the parking lot of the store. He later stated: "I really did not want to get out if I didn't have to" and he then advised "I very quickly figured out that it was possibly a robbery and the guy had a gun."

The suspect was fighting with two store clerks as the officer approached them in front of the store. The officer tried to intervene by struggling with the suspect for almost five minutes. The officer advised that the suspect then pointed his revolver at him and tried to shoot him. The officer was able to place a finger between the trigger and the back part of the trigger guard so when the suspect pointed the gun at his head and tried to shoot him he was not able to get the trigger back far enough to have the weapon fire. The officer was able to grab hold of the extractor rod of the revolver and was able to empty out the rounds in the revolver rendering the weapon safe. The suspect was taken into custody and the officer received high praise from his agency.

I absolutely understand that what he did was heroic and I also totally understand, from studying the marshal arts for decades, what it takes to do something like he did. However, my concern again is "Was his desire to not really want to have to get out and get involved and then not use any weapon of any kind risking his life and possibly the lives of those clerks and anyone else around him because of what has occurred in Ferguson and New York City?"

I cannot answer this question because I am not either one of these individuals and I was not there; however, I review these types of cases every single day and have done so for the past year or so and have interviewed officers, and continue to do so for my studies and book, who have been involved in officer involved shootings and the facts of these two cases concern me. I am also truly very glad that both of these incidents resulted in only one Chicago officer sustaining minor injuries and no other officers were injured.

Do these incident now vividly demonstrate that we now have a reason to really be concerned for the safety of officers?

Commetary on the Events Involving Michael Brown (Ferguson), Eric Garner (New York) and Antonio Marin (Berkley) Regarding Officer Involved Shootings

What is being demonstrated at this time is the inability for a large number of multiracial individuals all over this country to comprehend the reality of a large number of these black males committing crimes, illegally carrying firearms, and actually attempting to use them, and using them, as was the case in New York and Berkley MO.

It is also a very vivid demonstration that many of these Blacks are using these events as nothing but a rationalization and false reason to go out and act out in an anti-social manner against anything they can attack, loot and destroy. The only positive aspect of these issues are that the entire United States is now able to see how these various groups of certain multiracial demonstrators use any reason or excuse to riot, fight, loot and destroy things in their own neighborhoods no matter what the issue may be that provided them with any possible excuse they can align themselves with throughout the United States.

Michael Brown was committing crimes, Eric Garner was committing a crime, Antonio Martin was committing a crime and yet all of these individuals who are rioting and complaining do not mention the fact that these individuals were committing crimes. Their actions are what what initiated the encounters and then the actions of these criminals is what caused the reactions of the officers who were actually doing their jobs protecting the communities they were sworn to protect.

In addition, when ill informed media commentators ask questions as to whether the weapon was loaded or if the suspect actually fired at the officers before the officer fired at them and killed them continue to put non-relevant ideas into the minds of these already law breaking individuals who are rioting and looting, this causes an additional exacerbation and provides these rioters with more ignorant questions to ask and more ignorant information to use as their fodder for their ill conceived and irrational rioting and lawless actions. That is the other aspect that is inconceivable to view and try to comprehend when mayors sit back the allow these individuals to commit crimes out in the open in a notorious manner on television and order their officers to not take any police action at the peril of the officers on the scenes and the residents whose property and belongings are being looted and destroyed. Is this justice and is this what mayors are elected to do during their tenure?

These mayors are telling the other individuals in their cities to just sit back and not worry because, as one of the  borough leaders from New York said "these individuals are just frustrated." I study the law every day and create course, teach university students and law enforcement officers all year long and have a license to practice law and have been an attorney for the past 22 years and I have to tell you that I have never seen an amendment to laws that allow for FRUSTRATION  as an affirmative defense to looting, burglarizing, assaulting police officers, delaying traffic, delaying ambulances, fire trucks and police in their response to emergency calls. This is a crime to prevent these responses due to illegally protesting without a permit in the middle of traffic when everyone who is need of these services have the same rights, and in these cases more rights, as the individuals who are illegally demonstrating and rioting. Let there be no mistake of which label needs to be applied to these activities because it is not demonstrating under the First Amendment, it is RIOTING, as was called for by Michael Brown's step-father and was responded to by the crowds present at that original demonstration the night of the verdict which then turned into a complete riot.

It is truly amazing that some of the Borough presidents were actually elected to their positions because they were supposed to be intelligent and sensitive to their all of their constituents. It is mind boggling that theses individuals are blind to the demonstrated facts which were posted on social media by the subject himself who executed the two New York Police Officer. He himself stated that he was going to New York to kill two cops to make up for and in revenge for the killings of Brown and Eric Garner. How much clearer can this be that the Mayor allowing the crowds to break the law in New York when they were demonstrating without a permit and allowing them to make statements about killing cops now had no nexus to this subject deciding to go from Baltimore Maryland to New York City to kill two cops. This subject went through several states before he arrived in Brooklyn and did not kill a cop anywhere except where the crowds were chanting What do we want to kill a cop and when to do we want it now."  However, the one consistent black Borough Leader, whose name escapes me but I have watched now for 6 days on CNN, still claims, as does the subject's family that there is no proof that he went to New York to avenge the deaths of Brown and Garner. Can they really expect intelligent and educated people to buy their misrepresentations when the proof is there in writing from the subject himself.

These Borough presidents are also part of the problem because they cannot be open and honest and admit that the people are breaking the law and that comments, and I am so tired of hearing the word rhetoric being used by many people who more than likely never used it before they heard it on the CNN broadcast, that were made directly caused this subject to come to New York. In addition, why did the  suspect in Tennessee, who has advised he is going to go to New York to kill cops, choose New York as to where he is going to go to kill cops? I truly believe that someone in 10th grade can figure this out and yet adults cannot do this in a proper manner. Or is it that they do not want to do this because they are more interested in using these events for their own benefit and look good in front of their constituents?

The officer in Berkley Missouri was there on a call he received from his dispatcher and while speaking with the suspect he had a firearm pulled on him and took the proper action he needed to do, and that anyone else would do who was carrying a gun, if someone pulled a firearm on them threatening their lives would have done. Yet, even though this was a clear cut and blatant criminal act perpetrated by an 18 year old Black criminal there were Black rioters that came out immediately seeing another opportunity to show their FRUSTRATION to burn, riot and injure police officers who were doing their job to protect them and their community. This entire event was captured on a neutral video camera and still a Borough leader from New York comments on the response by the rioters spawned by this valid and justified shooting as being an act of these people based upon them being FRUSTRATED. Again, someone please provide me with the reference to see where FRUSTRATION is now an affirmative defense in the United States Legal System.

A very unique idea here would be to approach this from a very logical and legal perspective, which I truly do not, based upon all of the research I have been conducting, and examine how these things occurred and how they would have been different.

Michael Brown; If he did not commit a strong arm robbery and not bully and threaten the store owner after committing this entire situation may have had a completely different outcome due to the Officer seeing the cigarillos in his hand while walking down the middle of the street. If he would have not been walking in the street when there were sidewalks available. It should be noted he was not just walking in the street, he was waling in the MIDDLE of the street. If he would have spoke to the officer, if he would have not attacked the officer and would have followed the orders of the officer where the person being arrested knows the officer is making or attempting to make an arrest and if you are being unlawfully arrested you DO NOT have the right to resist in accordance with the statutory laws in Missouri. Why do so many states in the United Stats have these statutes?  Because they wanted to prevent exactly what is happening in these cases with resistance leading to confrontations and the need to use force to the extent of deadly force.

Lets examine the actions of Eric Garner in New York City. He was committing a crime and was told he was going to be arrested and resisted. This was not his first time that he was performing these criminal acts. If he would have complied with the officers orders and allowed them to take him into custody then there would not have been a need for the officers to have had to use force to take down this very big and very heavy man, who was similar in size as Michael Brown. It is very difficult to explain to anyone who has not tried to arrest an individual who is resisting and fighting and to try not to injure or hurt the subject. When I began police work in 1975 and someone was really resisting arrest you would punch the person in the jaw and knock them out and take them into custody. I was in a training session last week for an Under 100 class and one of the videos showed a good sized and in shape officer have a subject come at him and he punched the subject in the jaw and knocked him out and that was the end of the issue. This type of action does not allow for these types of extended altercations usually resulting in the officer being hurt or the subject being hurt or killed. Just complying with the officers orders would have caused the confrontation not to occur and if it down after he complied then the officers would have been in trouble for their actions.

If the rioting which was allowed to occur in Ferguson would have been stopped by the orders of the Mayor and Governor it may have placed a different idea in the mind of Eric Garner to decide to resist and draw a crowd around him during his arrest for him committing a crime. If the rioting in Ferguson and the out of hand illegal demonstrations in New York, with the calling for the killing of cops now, would have been quelled then maybe the subject from Baltimore would not have decided to post that he was going to New York to put wings on two pigs as revenge for the killings of Michael Brown and Eric Garner.

A person yelling fire in a movie theatre is responsible for the results if there was no fire and this is taught in law schools all over the country for decades Schenck v. United States 249 U.S. 47 (1919). However, no one wants to make the nexus or connection between these comments and the resulting actions which were exactly what each called for such as 'Burn this Bitch down" in Ferguson and '
"we want cops to be killed now" in New York. How interesting that the burning occurred a little while after these  comments were made in Ferguson and a few days after the comments we want cops killed now two cops are executed in New York City where the comments were made; however, the astute borough presidents and representatives in this area in New York do not see this connections. Is this self-imposed blindness or their real true feelings and mindset coming out notwithstanding them being on world wide television and intelligent and educated people listening to these individuals making these ridiculous comments.

The actions of the New York City Mayor are unprofessional and also biased. You do NOT bring your personal life or family issues into your profession. This is especially true when you are in the middle of a controversial issue which is occurring across the nation. You need to support your employees and need to support the residents you have been elected to represent. You do not have the responsible to take the side of a group of people who are protesting in an illegal fashion, committing crimes by closing down streets and closing down bridges. You do not need to be making comments about how you had to tell your biracial son how to act when encountering police like other parents with black children have had to do for decades. It appears that the mayor is not really prepared to perform the duties of his office and unless he takes a crash course and gets his mind properly focused he is going to have a great deal of issues in the future to deal with on a continuous basis.

How can any progress ever be made if these borough leaders cannot be honest and see the reality of what is occurring and place the blame where it belongs and then move forward.?


                                                                     References

Schenck v. United States 249 U.S. 47 (1919).

Rest in Peace Officers Ramos and Liu

May these officers, our brothers, rest in peace and may their families find peace and strength to get them through the senseless tragedy they are being put through due to this horrific, mindless act.

This picture was created by someone on fact book.

Dr. Barone

Ferguson and Michael Brown: Taking the Time to Understand the Actual Law which is Applicalbe to Use of Force PART II

Use of Force and Supreme Court Decisions

It is critically important to understand the legality of the use of force, to include deadly force, and the 4th Amendment as being absolutely critical to an officers ability of doing their job, abiding by and acting in accordance with the 4th Amendment and case law, and also staying alive to come home every night. Understanding the use of force case law assists officers in making sure that they are performing their duties in a manner that is legal and in accordance with the law. This understanding also assists them in not having to be overly concerned about being indicted, going to jail and being sued and subject to monetary loss if they are accused of having violated someone's rights. Understanding the law and case law also assists officer if they are involved in an officer involved shooting, on or off-duty, while trying to do their job and protecting the public and accused of acting in an illegal manner. Knowing what you can and cannot do legally is something that assists you in taking the proper action required under a variety of circumstances faced by officers in the performance of their duty.

Incidents like the ones occurring in Ferguson and New York City, where the law enforcement officers did their jobs and did it in the proper fashion, and then the officers saw various city officials allow the types of demonstrations and violence which were perpetrated without repercussions was no the proper or even legal message that should have been sent to the community and to the officers who again were caught in the middle of the issues. This type of non-action directed by the top city officials simply adds to the problem and also creates a very dangerous mind set for the officers when performing their duties and in the communities they are policing. These top officials violated the rule of law and assisted in tearing down the social control of which we have been working to maintain for thousands of years. These top officials stood by and ordered the law enforcement officers to stand y while demonstrators caused traffic delays, looted, burned, burglarized, and destroyed property with the mindset of the top officials being that it would be better to let these people get it out of their system. Could there be more of a mixed message to law enforcement officers and a definite message of non-support for the legal and lawful actions of the officers in the performance of their duty?

The Courts have answered the questions, just as the grand juries in both states answered the questions, concerning when officers can use deadly force in the performance of their duties. However, because of the fall out from Ferguson and New York City, due to top officials allowing the breaking of the law by allowing people to riot and stop traffic and protest without permits, officers are now second guessing what the Court has already vividly stated in their decisions due to the irresponsibility of the top officials. When you have top officials siding with the demonstrators and not supporting your law enforcement officers and supporting demonstrators that have injured your police officers. When a mayor actually makes claims of an alleged attacks on police officers when they were injured and there is actual film of these attacks against the officers there is a very negative message being sent to not only the officers but to the community.   

Even though the officers are taught and know the answers to the questions involving the knowing of the answers to :Can I shoot someone in the back under certain circumstances?" "Can I someone going into the bed of a pick up truck during a traffic stop when I have told them to show me your hands and do not go into the bed of your truck?" "What I can I use as a weapon if I cannot reach my Asp or my CO spray or my firearm during an encounter when I have reached the point of absolute fatigue and I am experiencing what is medically know as Fatigue Threshold, at this point can I shoot them, or use my radio to stop them before I pass out?" The actions by top officials who ignore the Courts holdings and acquiesce to the illegal and riotous actions of demonstrators cause the officers to question the actions they need to take at the time the situations arise due to the lack of support and anti-police position taken by top officials such as we have seen in New York and Ferguson.

The United States Supreme Court has addressed many of these issues and questions. In the case of Jean Baptiste v. Gutierrez (2010), the Court of Appeals for the 11th Circuit advised that the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the subject who is taking the deadly action against them. The court is advising here that officers do not have to wait until it is too late to do anything because the threat has not just manifested itself, but has already been engaged in and is on the way with no time for the officers to actually and effectively react to the deadly threat. The Court understands that the suspect has the advantage of knowing what they are going to do and intend to do, and the officers have to try to interpret the threat and then provide a response and there is not enough time for them to actually respond in time to save their lives and the lives of the people they are trying to protect.

In the case of Wilkens v. Gaddy (2010), the United States Supreme Court advised that claims of the use of force on a suspect are to be evaluated on the basis of the nature of the use of force used, not on whether the individual suffered any injury during the incident. The MAJOR ISSUE is whether the FORCE used was reasonable in that situation, and not the extent of the injuries sustained by the suspect. A police officer is entitled to continue his/her use of force until a suspect, thought to be armed, is FULLY SECURED. People in Ferguson and in New York, who supported the protesting in response to the Grand Jury decisions need to take time away from making their signs and do some reading of these cases. It would be very highly suggested that the attorneys for these individuals also take some time and read the decisions in that the information contained within these and other decisions can be very informative and enlightening to them.

In the case of  Garcyznski v. Bradshow (2009), the 11th Court of Appeals held that at least where orders to a suspect to drop a weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force. The word weapons in this case does not limited it to be a firearm. It can be a cane as used in a case in New York City, it can be an end table as used in a case in Florida early this morning, it can be a motor vehicle or even a fence pole as was used against two Jersey City Police Officers a couple of days after a Jersey City officer was ambushed and killed.

 

 Understanding the relevant Circuit Court and Supreme Court decisions because the fact is that a shooting is now absolutely considered by the United States Supreme Court to be a 4th Amendment issue involving a seizure and could also be a Civil Rights violation if they are not in conformity with the law and court decision. It is important to understand that in the U.S. Supreme Court decision of Tennessee v. Garner (1985) the defendant in that particular case was not only unarmed, he also  posed not threat to the officers or to the community. The two pronged test that was a result of this case is as follows: The infliction of physical harm or the threat of infliction of physical harm by the subject and also the level of proof required here is "probable cause" and not of certainty; therefore, the threat of bodily harm is sufficient to satisfy this prong of the test. The Second prong of this test deals with the "necessity" of the use of deadly force. Here the court explained that the presumption is that a dangerous subject will continue to be dangerous even while escaping or running from the scene and the court accepted that this and the capture of this individual becomes very important and issues of "necessity" is now how, as opposed to whether, a dangerous subject will be seized. If an officer allows a subject to escape after demonstrating this type of action the officer has notice that this person has the potential and propensity to commit violent acts and to possibly harm, injure and kill residents, and if the officer allows this person to escape then the officer will now also be susceptible to a malfeasance charge and dereliction of duty and possible law suit by the victim of the suspects subsequent actions.  

In the seminal case of Graham v. Connor (1989) there is a specific delineation pointing out the differences between the cases and how shooting a suspect in the back can be legal and not go against the decision in Tennessee v. Garner  (1985). Understanding when deadly force is necessary and required in realistic situation, rather than continuums, and also understanding what officers can do when tactics and techniques which are taught in defensive tactics are not working or are not applicable when officers are facing a violent offender on the street, in an apartment or during any type of situation where the officer is facing serious injury or death. The United States Supreme Court does not intend for an officer be shot at before the officer can use deadly force to protect themselves and to protect others.

Again using the case of Graham v. Connor (1989) it is seen that the United States Supreme Court has advised that an inquiry into the actions of a law enforcement officer's use of deadly force must be "limited to the facts and circumstances confronting them (the officers involved in the action on the scene) at the time..... and judged from the perspective of a reasonable officer on the scene..... rather than with the 20/20 hindsight" which is "not capable of precise definition or mechanical application." The United States Supreme Court was very clear and vivid on the standard of being "reasonable at the moment." The amazing part of the actions that took place after the grand jury's decision not to render a true bill against officer Wilson was that the Brown family and the attorney for the Brown family totally disregarded the decisions by the Circuit Courts and the United States Supreme Court. In addition, these individuals also questioned the investigation, the prosecutors assessment, review and then presentation of a copious amount of documents to the grand jury to make their informed decision as not being justice. Again we have the self-created definition of the Brown family and their attorney of the word justice and their reaction to what they felt was not justice per their definition  when the grand jury returned a no true bill. This also holds true for the case in New York City when that grand jury returned a no true bill in that particular use of force case.  

In addition to what has been already discussed the United States Supreme Court went further to say that "We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make split-second decisions between action and inaction in circumstances where inaction could prove fatal (Graham v. Connors, 1989).

In addition to these cases we are going to also discuss the "stop and frisk and reasonable suspicion standard used to conduct stops on the street within the confines of the law and within the legal parameters of the 4th Amendment of the United States Constitution and the Bill of Rights.

Dr. Barone

                                                        References

Jean Baptiste v. Gutierrez, 627 F.3d 816 (2010).
Wilkens v. Gaddy, 130 S. Ct. 1175 (2010).
Garcyznski v. Bradshaw, 573 F.3d 1158 (2009).
Tennessee v. Gardner, 471 U.S. 1 (1985).
Graham v. Connor, 490 U.S. 386 (1989).

Fergson and Micheal Brown: Did Anyone, to include Brown's Attorney, ever take the Time to READ the Case Law Regarding Use of Force? PART I

It is really sad to see that when, even a very cursory read of the Court decisions for the past several years, anyone who is not legally trained would be able to see and truly understand that actions taken by law enforcement in both New York City and in Ferguson Missouri were totally within the legal norms and parameters outlined by the laws, legal system and major Supreme Court decisions.

The word justice has been bantered about without any realistic understanding of its actual meaning. The word justice is being used by a group of individuals who have expressed that as long as the decision they wanted to have made as an outcome to two separate grand juries in two different states were what they wanted then they would have been satisfied that justice had been done. That, I am sorry to inform these individuals to include the attorney for the Brown family, is not what we call or is known as justice in the Untied States of America.

They also continuously criticized the State Attorney for providing so much information and documents to the grand jury for them to make an informed decision. If the State Attorney had not provided all of the documentation they did to the grand jury it is a very good bet that these same people, to include the attorney for the Brown's, would have made the comment that the grand jury was not provided with all of the information they should have been provided with to make an informed decision.

In my 39 years of being in the field of law enforcement, and a former prosecutor, I have never heard of a case where there were 3 autopsies performed in one case and still have individuals involved in the case not be satisfied with the results because the results from all the autopsies did not support their emotional, illogical and non-legal position they have taken 

The individuals in the Brown camp still are not satisfied with the mounds of proof, to include the video of Brown committing a strong armed robbery and bullying of the store own some 9 minutes prior to being spoken to by the Ferguson officer and the blood and physical evidence provided from the in depth investigation conducted by the officials in Ferguson. The attorney for the Brown family also acted in a way that he facilitated the questioning of the results of testimony officially on the record provided by eye witnesses to include the recanting of prior incorrect statements by witnesses and admissions of out right lying to police at the onset of the investigation.

In case the supporters and Brown's attorney are not aware of the case law that exists concerning the actions of Brown and his trustworthy companion in crime I would suggest that they take some time to read the cases and then they will see that the officer's actions in Ferguson and New York met the exact criteria rising to the level of reasonable suspicion for a stop and frisk which never did develop due to the aggressive behavior of Brown which was verified by witnesses and forensic evidence; which of course did not satisfy the definition of the Brown family, their supporters and their attorney, who should know better being a licensed criminal attorney. The actions of the officers in New York also met the requirements of state law and Supreme Court decisions notwithstanding the results of the grand jury not meeting the self created definition of Justice created by the Brown family and their attorney and the individuals in New York who wanted a true bill indictment against the officer.

In the next part of this commentary, addressing the legality of the actions of the officers in Ferguson and New York, there will be a presentation and a discussion of the various Court decisions supporting the actions of law enforcement in these incidents and also supporting the valid and legal decisions of the two different grand juries in two different states.

Dr. Barone, Esq.

May the Souls of our Brothers NYPD Officers Ramos and Liu Rest in Peace and may their Families find Peace for this Horiffic Loss

Today's actions, the senseless execution of NYPD Officers Ramos and Liu, were completely senseless. These executions further demonstrates the ridiculous claims by the individuals demonstrating in that these officers were in a black high crime area on a special assignment in an effort to make the area safer for the black residents and had a success rate of a reduction in crime by 33 percent. This is a demonstration of, and example of, some of the people who are claiming that they want change due to a use of violence against individuals who initiate the hostile actions against law enforcement and force officers to use force to quell the situations they initiate. To these individuals, who support the executing of two officers in an area where they do not normally work and were there to assist with providing extra protection to the residents living there so that they can have the crime rate reduced so they can have a better quality of life, it vividly appears that they are demonstrating their inability to be logical, rational and truly seek peace and justice. It appears that you have not done such a very good job demonstrating your desire to effect change via a non-violent manner. These actions, and the actions of those supporting their violent acts further demonstrate their ability to be able to be cold blooded murders and most of all cowards.

In addition, the actions of the very intelligent professor who attacked two NYPD Lieutenants a few days ago further demonstrates again the types of individuals we are dealing with that espouse peaceful demonstrations and then attempt to throw items on the heads of police officers and then attack two police lieutenants, all of whom were assisting them to exercise their right and ability to peacefully demonstrate on behalf of their cause. These individuals are not only hypocritical they are inept and lacking of the ability to formulate a valid reason for their actions and have to use the deaths of two individuals who were committing crimes, and who cases were presented to separate grand juries who issued no true bills and the right to peacefully protest as a rationalization for them to attack law enforcement, be violent and kill officers in the name of these individuals while espousing the desire for a more regulated criminal justice system. How much more hypocritical can these individuals possibly be?

May the souls of both of these officers rest in peace forever and may their families find peace and find a way to move forward day by day in this chaotic world.

Dr. Peter A. Barone

Officers Use of Deadly Force When Reaching the Fatigue Threshold

 By Dr. Peter A. Barone, Esq. Ph.D., LL.M., JD

 

There is a physiological phenomenon that has a great deal to do with Officers Use of Force and can be a major factor in why law enforcement officers justifiably shoot a suspect who is unarmed and engaged in hand-to-hand combat with the officer. There has been a great deal of research and writing conducted in recent years on the physiological factors that come into play when a law enforcement officer uses force. These factors, many of which stem from the “fight or fight” response within the body, will impact not only an officer’s perceptions, but also his or her ability to use force effectively. One of the major factors is known as the “fatigue threshold” (ALE Month, 2007). This is a term actually borrowed from the physical sciences and when examining the engineering branch of science we see that it means the stress level at which steel or wood will crack, bend or break. When using this term when relating to human beings, and in this case to law enforcement officers during the performance of their duties, the fatigue threshold can be understood as the sudden physical exhaustion experienced during a force encounter when an officer cannot effectively perform to either control a suspect or defend himself (Grossman, 2004).

An officer only has a short time in an all-out fight and in extreme cases less than a minute to gain control of a suspect before the officer’s energy is spent. Once the officers energy is spent or depleted that places the officer in a very precarious position which can be life threatening. If the officer continues on trying to fight or gain control of the subject without implementing some type of weapon this places him or her in a very seriously dangerous disadvantage. Once the officer hits this threshold the officer is unable to defend themselves or anyone else and they are now at the mercy of the person with whom they have been fighting with, and the law enforcement officer is now in no condition at all to protect themselves or others (ALE Month, 2007). 

                                       Physiological Root of Fatigue Threshold
Physiologically, the fatigue threshold phenomenon hinges on the difference between aerobic and anaerobic exercise. Aerobic exertion which is activity like jogging or bike riding are able to be sustained for substantial periods of time due to the body being able to maintain a fixed flow of oxygen and fuel to the muscles in the body involved in the activity. However, when we examine anaerobic exercising such as, strength training in the form of weight lifting or doing spinning drills in wrestling or wind sprints in many sports, we see that these two activities are critically different (McArdle, Katch, & Katch, 1996).     

When examining physiology and how muscles work we see that aerobic exercise primarily uses slow twitch muscles which are physiologically designed for endurance and anaerobic activities   involving what are known as fast twitch muscles. A good way to understand these muscles would be looking at the martial arts and the difference between Tai Chi with its’ slow fluid motions and Tae Kwon Do where the movements are quick and powerful. The slow twitch muscles (Type I Fibers) are slower and are used in Tai Chi and the fast twitch muscles (Type IIb Fibers) are capable of moving faster and produce more explosive motion such as those used in Tae Kwon Do (McArdle, Katch, & Katch, 1996).  

We can also understand that if we walk for 6 miles at a very slow moving pace we can keep going and do not really feel the stress in our muscles. However, if we sprint for one-half mile we can see the perspiration and feel the burn in our muscles and feel the fatigue. The fast twitch muscles burn much more energy and are insatiable for fuel.  When we examine slow twitch muscles we see they are the ones used in firing a weapon; however, the fast-twitch muscles are those you use and need to work when you are involved in a physical altercation such as a fight. The fast twitch muscles are also the ones used for explosive motion when an officer is swinging an asp, or as in the hard martial arts and they are blocking, punching, kicking, grasping, and clutching an opponent’s arms or hands.  These fast twitch muscles are used for forceful contraction or tension which are employed for activities such as an officer attempting to pry the arms out from under a suspect, (if you have had an occasion to do this you find our quickly that it can be a very difficult, arduous, and exhausting exercise) keeping him from grabbing you or your weapon or attempting to handcuff him. Slow-twitch fibers contract slowly and release energy gradually as required by the body during steady-state activity such as jogging, cycling and endurance swimming. These fibers are efficient in using oxygen to generate energy making them resistant to fatigue but unable to produce the power of fast-twitch fibers (McArdle, Katch, & Katch, 1996).   

Type IIa Fibers) which are seen as being on the fence and are somewhere halfway between type I and Type IIb and they are equal parts aerobic and anaerobic where they are not great at long distances, not great at sprinting, but pretty good for either or both such as when taking a Physical Agility Test. When a person is born they are born with these fibers in certain proportions, and they will affect how successful you are at either developing as a long distance guy, or a sprinter. Most bodies have 50% of Type 1 and 50% of Type 2 (A and B), but many elite athletes (world class marathon runners and Olympic sprinters) can have up to 80% of one or the other (Gollnick, Armstrong, Saubert, Piehl, & Saltin 1972).        
The energy that these fast twitching muscles need during anaerobic activity while they are quickly contracting is oxygen. The problem that occurs here is that the oxygen the body is taking in cannot provide enough fuel to sustain these muscles for a long duration and that is what is needed during these encounters. In order for the body to sustain the muscles it tries to compensate for the lack of necessary oxygen by drawing on sugar which is (glycogen), but again even this process is not sufficient for the long-term. The result: a waste product (lactic acid) builds up faster than the body can expel it. The problem that occurs here is if the body is unable to properly feed the muscles with what they need or remove the lactic acid then at some point in time during the extreme physical exertion the muscles will just stop contracting and it is at this point that the muscles just shut down. What has happened at this point in time is the depletion, starvation and suffocation of the muscles and when this happens the muscles are now non-responsive and the fatigue threshold has now been met (Gollnick, Armstrong, Saubert, Piehl, & Saltin 1972).        

When an incident occurs and civilian witness are viewing the event as it unfolds they may not realize how much exertion an officer is expending and they will more than likely not fully comprehend what fatigue threshold syndrome is and how it works.  Civilians have no real concept of what it actually takes, in the way of force and exertion, to force a person's hands into handcuffing position if the subject doesn't want to go there and is resisting with all of their might. If a suspect decides to lock their hands under their body and only provides minimal resistance a continued struggle with the suspect by an officer can lead to the officer to his or her fatigue threshold. Unless you have experience this activity it is very difficult to fully appreciate and understand this situation.  
Proper training, which involves very intense high impact and very task-specific training, can possibly extend an officer’s fighting ability somewhat; however, it does not eliminate the fatigue threshold, it may however provide the officer with some additional time to accomplish the objective or for additional assistance to arrive. According to Baylor and Hollingsworth (2012) it appears that sport specific training will assist in appropriate development and adaptation of each type of muscle fiber. The authors advise that fast-twitch muscle fibers benefit most by anaerobic training, such as sprint and some type of resistance training. They also advise that slow-twitch muscle fibers benefit most from endurance type activities that engage the aerobic system, such as running, cycling and swimming (Baylor and Hollingsworth, 2012). It appear that a combination of both of these methods will be beneficial to the development of the fast twitch and slow twitch muscles.  

           Variables that Effect the Time it takes to reach the Fatigue Threshold

Because each person’s physiology is different there is no absolute way to measure the exact amount of time it takes an officer to reach the state of fatigue threshold. There are a variety of variables that can also affect the amount of time it takes for the officer to reach this threshold and each individual officer in and of themselves constitute a major variable in the equation. Factors such as the age of the officer, their physical make-up such as height and weight and whether the officer works out and is in fair or good physical condition. The distance the officer has run prior to engaging in a fierce physical encounter with the assailant; not to mention the weather which could be 90 – 100 degrees with high humidity in some states and it can also be 2:30 in the afternoon in the summer in Miami as an extreme example. All of these conditions can and do have an effect on how quickly an officer can reach their fatigue threshold.  Other factors, which also must be considered, are the type of uniform the officer is wearing, the amount of equipment on their duty belt and the fact that they may be wearing a bullet proof vest with an armored plate all have a direct effect on how long it will take for the officer to meet their fatigue threshold.  

This condition, meeting the fatigue threshold, will be experienced despite the added strength adrenalin provides to the officer. The suspect will also be experiencing an adrenalin rush and the suspect will not have on a polyester uniform with a 20 pound gun belt and a bullet proof vest. When we speak of fatigue threshold we can sometimes better understand it as something that is called “hitting the wall,” which is experiencing a sudden depletion of all one’s strength and energy. When this happens it is over for the officer and there is nothing else the officer can do to include being able to pick themselves up from the ground. To support the claims made regarding fatigue threshold a study was conducted by Dr. Lewinski through the Force Science Institute (Lewinski, # 174).                                                         

                                                          Dr. Lewinski’s Study          
To fully explore this phenomenon of the fatigue threshold Dr. Lewinski, from the Force Science Institute, used a research team and conducted several unique tests with police volunteers to determine how long officers can typically endure in all-out fights with suspects and how a desperate struggle can affect memory. This specific testing was conducted under the guidance of Dr. Bill Lewinski, executive director of the Force Science Institute, the tests involved 52 officer volunteers from the Winnipeg (Manitoba) Police Service in Canada (Johnson, 2010; Lewinski, #174).

Dr. Lewinski had been contemplating research into officers’ capacity for sustaining a physical fight-for-life since he was previously consulted in a case in which a law enforcement officer from the West Coast was overpowered during a struggle and was handcuffed by a violent offender. He decided to move forward with the project after Commander Jeffry Johnson of Long Beach Police Department in California published an article questioning just how long the average officer can fight to control a combative suspect before succumbing to fatigue.
The article describes the physical fight for his life that Commander Johnson was involved in  when he was called to a scene where a subject was banging on his girlfriend’s door trying to break into the apartment. The subject was very large and was on PCP. There were several officers wrestling with the subject attempting to cuff him. The subject thrashed around and was able to get one arm free and grabbed Commander Johnson’s firearm and Johnson advised that he fought with all that he had to maintain his weapon in its’ holster and suddenly he was completely depleted of all of his energy. He was lucky that there were other officers there with him or he could have been killed by the subject. What the commander experienced during this encounter was exactly what has been discussed in his article which is "the fatigue threshold syndrome" and what runners have come to know as "hitting the wall," a little-researched phenomenon with profound implications for use-of-force decisions and courtroom testimony (Johnson, 2010).

During a certification class in Force Science Analysis, trainers attending from Winnipeg volunteered their academy facilities and assistance, so Lewinski decided to conduct the research there across 3 long days. Dr. Lewinski advised that the ultimate goal of the study was to follow up on what Officer Johnson comments on in his article and to determine how long it took an officer to drive himself or herself to exhaustion and to measure the physiological and cognitive consequences from this exhaustion or fatigue threshold (Lewinski, #174).

The study began with the officers being informed about an armed robbery crew that had attacked 3 locations. The officer were then directed to launch a full-force physical attack on a 300-lb. hanging water bag with a group of observers standing by to observe as the action took place. The bag drill realistically replicated a full-force fight by a moderately trained officer to control a strong, dynamically resisting suspect which is what occurs in a struggle with a suspect who is actively resisting being taken into custody. Dr. Lewinski advised that during this testing a couple of officers collapsed and the remainder were severely taxed as they moved forward in the exercise (Lewinski, #174).

During this experiment the issue that was most critical and most alarming was the observed rate at which the exerters depleted their physical resources. Dr. Lewinski reported that the average officer spent 56 seconds hitting the bag and some were exhausted after only 25 seconds and some actually just quit. The blows they were able to deliver averaged 183 with the overwhelming majority being fist punches. The average officer peaked at 15 seconds with the frequency of strikes falling sharply with a steady decline. By 30 to 40 seconds of the officers were significantly weakened and had difficulty breathing. At this time the blows the officers were presenting hardly moved the bag. It appeared that they were resorting largely to very weak, slowly paced blows that would have had little impact on a combative assailant (Lewinski, #174).

In addition to the officers depletion of their physical abilities they also demonstrated incomplete and faulty memories of what they experienced. They recalled less of auditory and visual activities and they made great errors in what they did attempt to recall. This study demonstrated that as exhaustion takes over, cognitive resources tend to diminish. ” Lewinski explains. “The ability to fully shift attention is inhibited, so even some potentially relevant information tends to get screened out. Ultimately, memory is determined by where the focus of attention was during an event. Dr. Lewinski’s study demonstrated that a substantial aspects of visual details may go unattended by the participants. This is critical because if investigators and reviewers of a use of force or officer involved shootings do not fully understand the findings of this study they can doubt what the officer has related about the incident to the investigators (Lewinski, # 174).

                                                   A Lone Officers Worst Fear

In engineering, the fatigue threshold is the stress level at which steel or wood cracks, bends, or breaks. In law enforcement, the term can be understood as a condition which the onset is sudden and it is actually the state of physical exhaustion which is experienced during an encounter where the use of force is exerted by the officer and when this state of physical exhaustion appears the officer can no longer physically perform in an effective manner nor can they control a suspect or defend himself themselves or others while in this state. It is very important to truly understand that this state is not the same as just being extremely tired; it is a state that arise in a very abrupt matter and it is also the utter and complete depletion of energy to the point that you cannot physically function.  As was previously discussed this state can come at any time during the time of an extreme encounter and it can occur between 30 seconds and several minutes based upon the variables previously discussed.

The closer an officer gets to his or her personal fatigue threshold the more dangerous the situation becomes. This is simply because human beings are wired to want to survive and to use whatever means available to keep themselves alive. With this mind set it creates a very dangerous situation for both the officer and the subject. The officer must fully understand what is going to occur if they actually do reach this state and take whatever action necessary prior to this condition setting in because once it does the officer will not be able to defend or protect themselves. It is dangerous for the subject because it is at this time that the officer is realizing that they are now fighting to save their lives and the survival mode will kick in and they will do what they need to survive. If an officer is reaching this level of physiological and physical depletion then there is no excessive force in keeping yourself alive when you feel and truly believe you are about to die.  

A person can sense when they are reaching their physical limit, although they may still be surprised at how rapidly you can fade, especially where upper-body strength is concerned which is what is mainly being used during struggles to take a person into custody. When the officer senses that they are nearing their threshold they must take whatever action they can and they must do it quickly and decisively to control the suspect and prevent a catastrophic result. There are times when the action that must be taken it the use of deadly force even against an unarmed assailant before the complete fatigue threshold is met. Before the officer reaches complete fatigue threshold the only strength they may have left is the four pound pull of the trigger of their weapon.  

If an officer arrives at the fatigue threshold and uses deadly force it must be remembered that it is the totality of the circumstances that must be examined at this time during these types of situations as far as the reasonableness of the amount of force used. It is reasonable to use deadly force in this situation if you are reaching this threshold and you know you are going to be helpless in the hands of the person who is physically struggling with you or trying to grab your weapon as was the case with Commander Johnson. The courts have advised that in cases like this the defense of qualified immunity is granted or withheld not on the basis of hindsight, but on the basis of what the police officer reasonably believed at the time of the shooting, given what they knew and perceived at the time the event was unfolding. The United States Supreme Court has made it very clear in the case of Terry v. Ohio (1968) that It would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. As far back as the case of Tennessee v. Gardner (1985) the United States Supreme Court held that when an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, the Court stated, it is not unreasonable to prevent his escape by using deadly force. It is imperative for the officer who is experiencing the reaching of the fatigue threshold and knowing they are about to lose all the ability to do anything against their opponent, that they provide a very detailed account of what transpired and exactly how they felt just before they reached the fatigue threshold. It is the totality of the circumstances that will be reviewed and examined concerning what occurred prior to the use of the deadly force being applied.  

      Documentation of what the Assailant did and what you experienced is Critical 

Due to the fact that every officer involved shooting comes with a media frenzy and comments by a plethora of Monday morning quarter backs it is critical that the officer involved in the shooting be as accurate as possible in describing force encounters in as detail as possible to include each and every action of the assailant and what they, the officer, was experiencing and feeling regarding their belief of the total fear of losing their lives.  

It is very important to vividly explain exactly how the officer felt and that the officer was  completely out of gas, had no energy left inside them and how vulnerable the officer felt when fatigue threshold totally set into place. This detailed information can be a vital factor in justifying an escalation of force if and when the officer feels they are approaching a dangerous level of exhaustion and believed that if they went unconscious, or could not even stand up of lift their hands and arms to defend themselves, that their assailant could have taken their weapon away from them and killed them and anyone else the assailant came in contact with once he took the officers weapon. As recent as June 13, 2014 a suspect who was wanted for questioning in a homicide by law enforcement in New Jersey decided to go into a Wal-Greens Drug Store at 4:00 in the morning in Jersey City New Jersey armed with only a knife. After entering the store he approached the armed security guard who was on duty and managed to take him by surprise and obtain his gun from him. The suspect has a plan which was to obtain the security guards firearm and once he did he did not rob the store or the patrons; instead he waited for the arrival for the first Jersey City Police Officer and sprinted towards the black and white police car firing thirteen rounds into the vehicle hitting Rookie Police Officer Melvin Santiago in the head who was later pronounced dead at the hospital. The offender then began to fire at other officers arriving attempting to kill more police officers and they returned fire killing him on the scene. If an officer feels they have met or are about to meet the fatigue threshold their life and the lives of others around them can be in danger and taking the proper action and making sure it is thoroughly documented is the only way to survive unless back-up arrived in time.  

Specifically documenting the suspect’s actions and what you were experiencing physically, mentally and emotionally can be essential to recreating a picture of necessary us of deadly force encounter from the perspective of the officer on the scene. This will go a long way in addressing the requirements for the standard used to assess the reasonableness of the use of deadly force and assist in the understanding of the totality of the circumstances criteria which has been established by the Supreme Court’s landmark use of force decision being Graham v. Connor, (1989). In the case of Graham v. Conner (1989) The United States Supreme Court discussed and addressed the right of a law enforcement officer to make an arrest or investigatory stop and in doing so the Court stated, that these type of action necessarily carries with it "the right to use some degree of physical coercion or threat thereof to effect it." All the law requires is that it be a reasonable amount of force based on the situation encountered by the law enforcement officer. The Court went onto say that such reasonableness, however, has to be judged in light of the facts and circumstances confronting the officer, rather than on the basis of their underlying motivation or intent. The issue that was addressed in this case was whether the officer acted in an “objectively reasonable” manner based on what they knew at the time. This is the exact reason why it is so critically important for the officer who is involved in these situations to convey in a vivid and very detailed manner the situation as it unfolded and developed along with how and what they felt and experienced physically, emotionally and mentally. The Court advised that the reasonableness of each particular use of force has to be judged and the view must be from the perspective of a reasonable officer on the scene, and must make an allowance for the fact that police officers often have to make "split second" decisions about the amount of force that is necessary. 

    Legal Perspective Involving Shooting an Unarmed Subject due to Fatigue Threshold 

In Plumhoof v. Rickard (2014) the attorney who represented the officers argued that shooting at the moving vehicle was constitutional for several reasons.  The attorney here argued that the officers in this particular case were in danger of serious bodily harm or death from the vehicle as Rickard tried to escape. Civilians and officers are allowed to use force, up to and including deadly force, to protect their life or the life of someone else that is in danger of bodily harm as was the case here. The next point the attorney argued in this case was that once Rickard had used his vehicle as a weapon he became a violent fleeing felon such that officers could use deadly force to prevent escape. Lastly the attorney argued that if Rickard had escaped he would have posed a dramatic threat to the public by his high speed flight.  Much of the oral argument focused on this last factor as plaintiff appeared to be arguing that the officers' last 12 shots could not be justified. 

In Robinson v. Arrugueta, No. 04-10856, 415 F.3d 1252 (11th Cir. 2005), the finding by the appellate court was that an officer was entitled to qualified immunity for shooting and killing a suspect in a drug transaction investigation who was slowly moving a vehicle towards him, which threatened to crush him into another car. The vehicle in this case was being used by the suspect as a deadly weapon and the officer was in total fear for his life. The court looked at the totality of the circumstances here and also saw how the suspect used the vehicle as a weapon and understood that the vehicle was not driving away from the officer but into the officer with the intent of causing great bodily harm or death. When examining the case of Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142 (11th Cir.), we see that in this particular case the court found that deputies reasonably believed, at the time they shot at a car attempting to escape them by going in reverse, that a deputy who was positioned behind the car was in serious danger of great bodily harm if the vehicle hit the deputy. Due to the positioning of the deputy and the actions of the individual intentionally driving the vehicle towards the deputy they too were legally entitled to qualified immunity. The court here made a very important statement in that they advised that the fact that officers may be mistaken in considering a particular individual to be a threat to themselves or others will not bar qualified immunity as a defense, provided that the mistake is reasonable under the circumstances. If the deputy would have waited to see if the vehicle was coming towards one of them the time taken to wait to see the result could have been a deadly one which the deputies did not have to take.

These cases represent the absolute need to provide very detailed information pertaining to the actions of the suspect and the reactions and perceptions of the officer involved in the use of force situation. The Court advised that the reasonableness of each particular use of force has to be judged and the view must be from the perspective of a reasonable officer on the scene, and must make an allowance for the fact that police officers often have to make "split second" decisions about the amount of force that is necessary. The courts have provided law enforcement with the opportunity to explain what it is that they themselves saw, heard, felt and experienced during the incident which presented them with the need to use force and at times deadly force. The additional issue here is that officers should not be burdened with having to think about what will the department say or do pertaining to this incident. They should not have to be thinking about whether or not the department will have someone that is familiar with the law and has some Force Science training regarding body movements, cognitive processing and response time. They also do not need the burden of being concerned, at the time they have to make this life threatening split second decision as to whether or not the prosecutor will be aware of and used the required standard to assess their actions properly or be influenced by something outside the law. The main standard here is Graham v. Conner (1989) and we need to be consistent in its application.                                    

                                                   Reasonable or Excessive Force?

In the final analysis, the most important reason we need to have a clear understanding of the fatigue threshold is because it changes the dynamics of a force encounter. If an officer believes or knows he or she is about to reach their own fatigue threshold, and most often they will know it’s coming, they must act quickly and decisively to control the suspect. At that point it may even appear to the casual observer that the officer is winning the battle, but the reality is he’s about to hit the wall. When that happens, all gains are lost; all advantages evaporate. So what will the reasonable officer do? The reasonable officer understands that any suspect who is willing to fight the police with such intensity that he can bring the officer to the limits of his strength is dangerous and cannot be allowed to overcome the officer, gain the upper hand or control the outcome.

Particularly if the suspect has a history of violence, has threatened the officer, or possesses a weapon, it may be necessary for the officer to consider and employ greater levels of force than may otherwise appear objectively reasonable, up to and including deadly force. This will never look good on video, but appearances to the untrained eye should never dictate our standard of objective reasonableness. The law requires we place ourselves in the officer’s shoes, taking into account his physical condition at the time of the encounter. The fatigue threshold may play a prominent role in such an analysis. Again we must revert back to the Supreme Court decision which will be the legal yard stick to measure these actions by to determine the legality of their actions.

                                                              Conclusion

The fatigue threshold is a relatively new concept as relates to law enforcement. As such, there is a void of empirical data documenting specifics on the extent and character of the problem for law enforcement. However, experience tells us that just because a problem may not be considered well 

documented, it does not mean it does not exist. There is no doubt or issue of being able to clearly demonstrate the fact that the physiological process of the fatigue threshold exists and is in multiple disciplines. What needs to be done at this time is to more clearly establish the scope of its impact and also make departments, officers, investigators investigating these incidents and prosecutors who are reviewing the actions to determine the status of the officer’s actions in relation to the actions of the perpetrator. The fatigue threshold is an important concept to understand for the sake of law enforcement officers, their families, the department, the suspects and their families. An exhausted officer who has reached the limits of his or her physical endurance, yet still has not taken a resisting suspect into custody, may often have no other option than that of deadly force. Sometimes the four-pound pull of a trigger is the only force option a threatened, exhausted officer can physically perform. That’s rarely good for the officer and never good for the suspect. We cannot allow the media or interest groups sway the rule of law and the guidance that the United States Supreme Court has put down when reviewing the facts and actions of the suspect and officer. The United States Supreme Court is very clear when it advises that the reasonableness of each particular use of force has to be judged and the view must be from the perspective of a reasonable officer on the scene, and must make an allowance for the fact that police officers often have to make "split second" decisions about the amount of force that is necessary. The additional issue here is that officers should not be burdened with having to think about what will the department say or do pertaining to this incident. They should not have to be thinking about whether or not the department will have someone that is familiar with the law and has some Force Science training regarding body movements, cognitive processing and response time, and will the prosecutor use the required standard to assess their actions properly or be influenced by something outside the law Graham v. Conner (1989). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, at 397 (1989).

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