WHAT
IS THE REAL TRAINING LAW ENFORCEMENT NEEDS AT THIS TIME TO SURVIVE USE OF FORCE
ENCOUNTERS ON THE STREET
Every single day I review Officer Involved Shooting cases
and Use of Force cases for my ongoing studies. Today I woke up and had a
driving passionate need to write something about what I called the Manifestation of Police Trainers Greatest
Fears. I have been in law enforcement since 1975 and I have been a law enforcement
trainer for the past 30 years. One of the main areas I teach is the legal
blocks pertaining to search and seizure and use of force. About 10 – 12 years I
recall having a discussions with other trainers from around the country and a
concern was festering that officers were starting to become concerned about the
legal ramifications of being in a shooting. We, as trainers, were concerned
that they may begin to hesitate possibly causing themselves to be injured or
killed. The old saying of “I would rather be judged by 12 than carried by 6”
was still used a great deal then. Well, I can tell you from the cases I am
reviewing and the non-actions and hesitations being demonstrated by officers
around the country that we have now arrived at the place many of us were very
concerned we would one day come to in our profession.
The use of the federal government in cases that are not
even 2 hours old, the sensationalizing by the news media and the ranting of a
miniscule number of individuals in communities has provided the last push for a
large number of officers to now hesitate in taking action that is clearly
needed. Today officers are encountering
situations that in the past they would not have hesitated to use deadly force
to resolve and now they are risking themselves, the people in the community and
their partners.
Today we have a large number of training companies out
there teaching arrest tactics, OC spray, handcuffing, building entry, swat, and
active shooter, and that is all great and the companies I have dealt with are
excellent. We have seminars taught on the Warrior Mind Set and even with this
mindset we need to understand that part of getting to that mindset is having
confidence in the knowledge you possess to know what to do, when to do it and
then how to do it. However, here is the issue. In order for an officer to use
and implement what is being taught to them by these companies and these trainers
they must first make the decision to use them. Yes, this is the problem. The
neurotransmitters must work and messages must be sent. However, what is
happening is the officers are processing what is unfolding in front of them and
they are seeking out pattern recognitions of what is happening and how they
should respond and that is where the hesitation occurs. It is like Dr. Bill
Lewinski advised in his certification class as far as gun belts. The more items
on the belt and the more options the longer it takes to make the decision. Go
to a restaurant that has a very large menu and has several of your favorite foods
and even if you went there with one special dish in mind once you start to look
at the menu the pattern recognition of the other dishes are viewed and then the
indecisiveness occurs. This is allowable in a selection of what food to eat;
however, it is not so at the time when you need to decide whether or not to use
deadly force. If an officer freezes and does not make the choice then all of
that great high speed low drag special operations training is never gotten to
and is never put into use.
We are not going to be able to change the mindset of some
of the individuals out there who are engaging officers because they are fully
aware of what is going on in most officer’s minds and this will not change until
January of 2017. The way in which we must combat this epidemic and be able to
assist officers in being able to not freeze and either fight or take flight to
regroup until back up arrives is via training in the area of law. Yes, I did
say the law. Not night shooting, not handcuffing techniques, not building
entries; e need specific and intense training in the law. Officers are hitting
their targets when they shoot so that is not the issue. The issue is prior to
them making the cognitive and conscious decision to shoot or not shoot, or use any
type of use of force, is the mental process that takes place to put actions
into place.
The officer I have interviewed that had good shootings, and
were felt comfortable regarding their shootings, knew the law and they were
confident of what they were doing and that the actions they were taking at the
time and for that exact situation were totally justified. These individuals
knew their department Standard Operating Procedures, knew the Use of Force Laws
and knew the case law. We spend a great amount of time on shooting, entries,
handcuffing and defensive tactics. Most officers have not been in shootings so
they cannot go back to what they know or recognized patterns in their mind that
they can identify from prior events. No matter what action or force you use you
must make the decision in your mind and the mind must then send the message to a
specific part of the body to take that action. If you are eating the brain
sends the message to pick up the fork or spoon. If you cannot decide which to
pick up you just sit there while you food gets cold until some decision is
made. If a baseball player can catch, play the ball, throw at a high velocity
and with great accuracy; however, they play short-stop and do not understand
the concept of a force play at second when there is a runner on first to make
the double play then all the mechanical skills mean nothing without the knowledge
of the game. If you do not know the law and you are sitting there searching
through the various patterns of behaviors and actions in your mind you are
exposing yourself to injury or death. Not every job is right for every person. If
this is an issue for some officers then they may need to emerge themselves in
the law or seriously contemplate if the continuation in this profession is
something that is going to be beneficial to themselves, their family and their
colleagues.
Today there is a great deal of pressure on what actions are
taken by law enforcement. If a doctor who is operating on someone hesitates to
take a necessary action during a surgery they could cost the person to be
paralyzed, have brain damage or die. If that doctor does make that mistake and
each time they go into surgery they are scared to make a decision then it might
be time for them to go into general practice. If we do not prepare our officers
with the proper legal knowledge of what the United States Supreme Court has
decided, they, as officers can and cannot do, then we are not sending them out
there as prepared as we should and it is on the administrators and it is also
on the officers themselves.
I say it is also on the officers because personally I know
many officers who send themselves to all types of high speed training and pay
for it themselves. If there are good courses out there on use of force and
legal aspects of use of force courses you need to make that investment in your
career and your future. I am not talking about how to investigate use of force
or officer involved shootings. I am talking about courses that deal with what
to expect if you are involved in an officer involved shooting or a review of
the legal cases pertaining to use of force and deadly force. Armed with this
information, having the knowledge of the law, is the way officers are going to
stay alive and not get themselves hurt as the officer in Alabama did in the
most recent event of non-action. This officer was honest and
admitted what was going through his mind at the time of the incident. He was
very lucky that things turned out the way they did for him. I have reviewed
case after case of officers who had absolutely good shoot situations and they
did not shoot. These offices took some unbelievable chances and risks and some
were lucky with the outcome. Ask yourself if you want your partner to not shoot
and it might cost you your life? What about the family members who are at home
and understand that your life is on the line. They understand that one day you
may be in a gun battle and unfortunately loose the battle; however, how will
they feel when they find out that you could have shot, were legally correct to have
shot, and had the shot; however, you did nothing and died because of your
indecisiveness or second guessing yourself due to the current climate. Being
prepared with knowledge of the statutory law and the legal case law is the new
weapon that needs to be taught and used in this battle. Because without this
tool in your tool box you may never, as was the most recent case, get to use
any of the tools from the special courses.
When a sports official knows the rules by heart they are
not concerned with making the call and they cannot be intimated by a coach
because they have solid knowledge of the rules. They use pattern recognition to
review what they saw, what the rule is and what the action needs to be taken.
They can do this because they are familiar with, and have solid knowledge of,
the rules. They may have good or great mechanics; however, they may never get
to the mechanics if they are not solidly familiar with the rules. It is the
same with law enforcement officers. If you know the statutory law and the case
law as it relates to use of force and use of deadly force you will know you what
can and cannot be done and that you are right when you take the action you take.
Even if the case goes to court the law will be on your side and the case will
be solid. The reviews I have done show that grand juries do not want to indict
officers and juries do not want to convict them unless the actions were so
unreasonable that there is other choice. The case in Mecklenburg North Carolina
took two grand juries to return a true bill against the officer and the second
grand jury was called by the Attorney General of the State.
Not doing the job is not the answer, doing the job by
placing officers needlessly in harm’s way is not the answer, it must be through
the use of legal knowledge of the statutory and case law and training. The only
way law enforcement is going to make it through this ridiculous time is by
using legal knowledge and being well educated in the law. Spending time
training your mind is just as important as training your body and having the
most high speed equipment. Thinking you know the law, hoping you know the law,
and not knowing the law is not going to get you through a critical situation involving
the use of force. All those neat tactics will never come into play if you are
not sure and confident when you can and cannot use them. Knowledge of the statutory
law and the case law and specifics of the decisions passed down by the Supreme
Court are the main tools you need to use when you are in that situation that is
dynamically unfolding in front of you and you must make that split second
decision as to what you can and cannot, and should and should not, do legally
with your life hanging in the balance.
Dr. Peter A. Barone, Esq.
