Essential Points Involving a Way to Better Understand Police Use of Force and Officer Involved Shootings 

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

It is next to impossible today to open a news paper, turn on the television news or open your internet account with out being presented with a breaking story pertaining to law enforcement having to use force and more often the stories being presented involve officer involved shootings.  

It is common knowledge now- a-days in our society that via word of mouth, television, radio, people taking to each other, people enrolled in criminal justice courses at local colleges and individuals doing research on the internet that law enforcement officers are authorized to use force in specified circumstances. Is also common knowledge today that there are more and more claims by individuals that police are abusing their discretion in administering the force they are authorized to use in fulfilling their oath of office to protect and maintain social control in today’s society? In this day and time, more so now than in yester years, law enforcement officers are also provided with various levels of training in the use of force due to new laws and legal decision in how, when, what type, and to what extent force can be used in performing their sworn duties to uphold the law and maintain peace and social control in communities all over the world. The training that the officers receive varies in type, frequency, quality, quantity and relevance. The issue with training is number of personnel and funding. Some agencies either cannot fill their positions that are vacant due to lack of qualified personnel applying, lack of funding to actually provide the necessary monies to pay for the open position(s) or just a complete hiring freeze place upon the city, county or state in general. These varied factors all have an affect on the type, amount, quality and frequency of training that is able to be presented by a law enforcement agency. 

 Even when an agency does not have these impediments to providing frequent, quality, and relevant training there is the major issue of being able to address every single type of scenario possible that an officer might encounter. One of the things this writer came to realize earlier in his career and also by being a Explosive Ordinance Disposal Technician in the United States Army is that the uniqueness, creativeness, and ingenuity possessed by individuals minds and imaginations are endless; thus creating an bottomless pit of novel scenarios that can be presented to law enforcement on a daily basis and as such provides for too many possible scenarios to realistically train for by a law enforcement agency with budget requirements having to be kept in mind. Agency trainers do the best they can to keep up with new scenarios that transpire across the country and try to incorporate the common and the unique situations into their annual or semi-annual training programs.  

This writing is currently completing an Active Shooter Scenario for an agency in Central Florida and also just completed another 4 hour required Use of Force Training block as recent as 05-21-14 and negotiated and successfully completed the Physical Agility Test for his department on 04-23-14. This information is being presented to provide the reader with an understanding that the subject matter being discussed is not something recalled from decades ago, but from recent and active involvement in the law enforcement field. Researching the information, teaching in service and in a university setting, along with living it, provides an individual with a different perspective to discuss and present on these crucial and critical topics.  

If one truly is interested in obtaining a true understanding and a realistic sample of what law enforcement officers face each day throughout the world one only has to take the time for one week to research online the police use of force and officer involved shooting cases to see the plethora of varied scenarios that instantaneously present themselves, and most of the time without warning, to an officer who is just performing their duty to maintain social control and keep the peace in their own neighborhoods. One of the most common threads that this writer has seen throughout the past five decades of being in law enforcement, and has also seen via his research is that the officer is not the one who creates a shoot or do not shoot situation; it is the individuals holding the knife, gun, machete, baseball bat, or any other number if items as vividly listed in a detailed paper which was accomplished in coordination with the Santa Barbara Office of the State Attorney where they list in the report the following types of weapons presented by suspects against an officer who was responding to a call for services or investigating a suspicious incident.  

Officers are confronted with numerous circumstances during their careers when the use of force is appropriate. Some times, as has occurred with this writer, there are situations where the use of force, even deadly force, is warranted and instead somehow you are able to employ some other tactic and it works; however, still understanding that the use of deadly force was warranted and justified. Officers find themselves in situations such as:   making an arrest, attempting to restrain unruly combatants, attempting to quell disruptive demonstrators or when interceding in a domestic situation. Many times officers are conducting daily activities they have performed thousands of times before and it turns out to be one of the most horrific incidents of their life. Many of these officers live to discuss it and too many succumb to the deadly actions of subjects who appeared to be the average person that officers have interacted with on numerous occasions through their careers.   

 If an officer is confronted with a situation where someone has presented them, or someone else with a threat of force, then the officer must take control of their emotions and the situation at the same time while running through the rules, regulations, requirements, policies, and state statutes on the use of force. All of this must take place  while trying to assess the situation unfolding in front of them to determine what they are being presented with, and if force is necessary and if it is, then they must determine what level of force they are being presented with and what level of force is proper to stop the threat.  

In the back of the officers mind there is also the thought of how will this be judged by the individuals who were not here and not part of this emotional upheaval. If the officer does make it away from this event, which the suspect the vast majority of time, (statistics are being compiled by this writing to be presented which at this time appears to be more than 97% of the time) has created, they are fully aware that whatever force they implemented will be assessed, scrutinized and judged, and many times blamed for action they did not initiate. In addition, they will be blamed and criticized with comments by individuals proffering ridiculous alternatives that these inexperienced individuals feel should have been used in place of the actions they took which were in accordance with the situation presented to them; within the bounds of their training; within their policies and procedures and within the bounds of the law. Officers must be assessed on a consistent basis using the same standards so that there will be a consistency for performing the assessment, the public will understand what the standards are and more importantly the officers taking the action will know what the standards are when they make the decision, many times forced by the suspect, to take action and use force.  

A valid, justified, legitimate, and required assessment must center around the critique of  level of force exerted and whether or not the level of force used by the officer in this situation, taking into account the totality of the circumstances, exceeded the level of force considered justifiable under the circumstances, departmental policies and the law to effectively address the threat presented by the suspect. One of the major issues with this process is when the activities of the police come under public scrutiny, which at times can be compared to a shoe maker trying to assess and judge the actions of a brain surgeon, this activity is contraindicated since the former has not gone to medical school, never performed a residency and has never performed an operation in their lives, is done by individuals who have no inkling as to what it is like to perform the job of a law enforcement officer.  

In addition to individuals with no legitimate credentials making after-action assessments of law enforcement action during a fluid dynamic and rapidly changing event, there are other group of individuals that weigh in once they see the opportunities presented to them and they would be the media, legislators, and, in some instances, civil attorneys. Many times it appears on news presentations or in news papers that whether excessive force is aberrant behavior of individual officers or is a pattern and practice of an entire law enforcement agency, both the law and public opinion condemn such incidents. It is understandable that both the law and the public condemn such actions; however, from the current research, and also from the research being conducted by this writer, the comments pertaining to “whether excessive force is aberrant behavior of individual officers or is a pattern and practice of an entire law enforcement agency” that the first part of this statement, dealing with individual officers, might possibly have a modicum of validity; however, the second part of this statement espousing that aberrant behavior is a pattern and practice of an entire law enforcement agency is a truly incredulous statement that thus far, in the existing literature and in the research by this writer, is a contraindicated and a very dubious statement.

As society moves further into the future, more violent scenarios, such as the one which transpired in Isla Vista California last night, as this writer observed while conducting research on officer involved shootings, are going to occur and are going to require police response and the use of force and more than before deadly force. In the cases that I reviewed from other studies, and the cases I myself have reviewed from my study, have had the initiator being the suspect. The shooters in these particular cases obtained the weapons, carried the weapons, used the weapons to kill innocent people and then presented the officer with a scenario and situation where they had no choice to use force and up to and including deadly force to stop the threat and maintain social control in society. 

                                                  Conclusion

Use of force, and use of deadly force, is something that is necessary to be used by law enforcement in the performance and execution of their duties. Our society has seen more gruesome displays of mass victim shootings by single shooter suspects than ever seen before in the history of the United States. The ages of the shooters are younger and the randomness of the shooters actions are more and more widespread. The ability to become a victim of one of these types of senseless and random shootings is increasing daily and the actions of the shooters are placing law enforcement into use of force situations, and deadly use of force situations, on a very frequent basis. Whether the officer is shooting at a suspect who randomly opened fire on an innocent crowd of unsuspecting people or is an 85 years old male with a firearm that has pointed a weapon and fired at law enforcement officers, the assessment of the existing threat, the actions of the suspect, the violation of the law, the threat to the officer and the actions of the officer to administer proportionally legal force must be accomplished in the same manner in every case.

 

 

 

                                                                       

      Officer Involved Shooting: You as the Crime Scene

By Dr. Peter A. Barone, Esq.

       Understanding the OIS Crime Scene and What to Expect in the ensuing Investigation

Being involved in an OIS is one of the most traumatic and most uncomfortable experiences for a law enforcement officer to encounter when they are the shooting officer. It is so uncomfortable because they are now immediately placed in a role reversal and it is one they are just not used to being in or familiar with in the performance of their normal duties. They go through an instantaneous transformation from being cop to subject. In fact, they are now officially the SUBJECT in a criminal investigation and if the shooting resulted in death, then they are the subject of a homicide investigation. The more knowledge they have concerning the law, the process and the procedures that will be used by the department investigating their actions the less stressful the experience can be for them.

Another very difficult mind-set for the shooting officer to acknowledge is that in addition to being the subject in a criminal investigation them themselves, their clothing, their weapon, their gear, and their shoes, and sometimes their body itself, are all a potential crime scene and potential evidence that needs to be impounded and processed. In addition, the department may ask for a urine sample as is done in the cases where an officer is involved in an automobile accident where the officer was driving. In the immediate moments after an officer involved shooting, as an officer you may still continue functioning as an officer and looking to make sure the subject is no longer a threat to yourself, to those around you, or to the person the suspect may have been originally threatening which caused you to have to take the action you were required to take that resulted either in injury or death to the suspect.  

In officer involved shootings incidents the shooting officer sometimes immediately after the shooting ends, may even be collecting evidence or gathering individuals together for statements, and this may go on until the initial responding officer, supervisor or investigator arrives on the scene. When the first officer arrives on the scene it is at this time when the reality of the shooting officer changing from the officer being part of the group of officers on a scene, which he or she is used to being part of, and now changes into “ we cannot speak with you, you cannot be with us, it is better if you do not say anything to us about what happened and you need to go over there, give us your duty weapon, and we are calling your union representative and your attorney.” An officer must be prepared for this to happen and if are not they may feel alienated and may feel that they are in some type of trouble when all the other officers are doing is following orders or protocol. As the shooting officer you must expect this to occur and you want this to occur for your own good and for the required investigation which is going to follow the shooting.  

You, as the shooting officer in an OIS, must understand that there is a great chance that you have experienced a traumatic event and that experience has the great potential to have a negative effect on you and on your memory. The result of experiencing this traumatic event may not actually manifest itself for several days, however, at the time it occurs there are physiological activities happening that you may not even be cognizant of that have an effect on your memory and ability to provide an accurate account of what actually occurred. This is exactly why it is best to not make a statement at the scene. It is important to take some time to be alone with family, your attorney and a psychological counselor and to also get some rest and a real cycle of deep sleep before you make any statement concerning the shooting. You should take advantage of the 4^th, 5^th and 6^th amendment rights; take the time to speak with your union representative and attorney and a counselor if one is available. Take the time to go home, speak with your family, feel comfortable in your familiar environment, and try to get some time to put things into perspective. Without getting normal sleep and reentering into your normal sleep cycle you cannot get back to a homeostasis and your memory cannot come back with the clarity of what you attended to during the shooting event.