Due Process and the Burden of Proof        

By Dr. Peter A. Barone, Esq.                                      

In the United States legal system there are three burdens of proof. There is the preponderance of the evidence which is used in civil cases and in Violation of Probation cases where the prosecutor must prove their case with the preponderance of the evidence or 51%. There is clear and convincing evidence which is used in family law cases in the civil side and in appellate reviews in the criminal side. Lastly there is what is known as beyond and to the exclusion of a reasonable doubt which is the standard in the criminal cases. These are all part of the Due Process provided as protections in the United States criminal justice legal system.

In all of these standards and in accordance with the due process and standards of proof is what is known as the burden of proof. In all of the three standards it is the party, in the case of criminal cases it is the prosecutor on behalf of the state that has the burden of proving all the elements of each criminal act being charged against the defendant. When discussing the “burden of proof” it becomes obvious that it does not relate to the actual number of witnesses that are involved in or called in a case. It does however go to the merit and the weight of the evidence which is presented by the prosecutor via the testimonial evidence by the various witnesses. Notwithstanding the fact that the evidence presented is admissible and it is seen as being relevant, material, or competent that does not necessarily mean that the evidence will be given the weight it needs to raise to the level of the jury feeling that the evidence presented has them believing that the defendant committed the crime and is guilty of the crime(s) being charged. 

Throughout the entire trial the burden of proof is on the prosecution along with the burden and obligation of persuading and convincing the jury or the court of the guilt of the accused beyond and the exclusion of a reasonable doubt. This requirement on the prosecution comes directly from the “Due Process Clause of the United States Constitution.”  Both the Fifth Amendment and the Fourteenth Amendment to the United States Constitution prohibit governmental deprivations of life, liberty, or property, without due process of law. 

The Due Process Clause of the Fourteenth Amendment serves three distinct functions in modern constitutional doctrine: The first function it serves is it incorporates against the States specific protections defined in the Bill of Rights; the second function it serves is that it contains a substantive component, sometimes referred to as ‘substantive due process, and the third function it serves is a guarantee of fair procedure, sometimes referred to as procedural due process.   

 

Ways of Proving the Criminal Intent of a Perpetrator of a Crime

                                               Criminal Mind/Scienter

One of the things that the prosecution must prove to the jury is the intent of the defendant which is the “Mens rea” or criminal mind of the defendant at the time the committed the crime. This is basically proving that the defendant had the “Scienter” or the intent or the knowledge of the wrongdoing of the criminal act and it means that the defendant had the knowledge of the wrongness of act prior to committing it. There is no burden of proof on the defendant and the defendant has no requirement or obligation to testify in their case nor to prove that he or she did not commit the crime they are charged with in this case.

Proving mens rea and especially scienter is very important for the investigator in a criminal case. Being able to demonstrate that the individuals being charged with the criminal act had the mental intent and also the knowledge of what they were doing was wrong. This goes a long way with the jury when they are trying to determine if the person is guilty beyond a reasonable doubt. One other important aspect of this intention to commit the crime would be “Motive” to commit the specific crime or crimes being charged.

When examining a criminal act one of the perspectives to view the crime from for a better understanding of the motive or need to have committed the crime would be the purpose of the commission of the criminal act. The questions which need to be asked and then answered if possible is whether the accused committed to the crime to satisfy an a specific non-emotional need such as stealing money to buy drugs; stealing items to sell to buy drugs or holding up a bank because he wanted to buy a car. If the person committed the crime to just satisfy an emotional need such as hitting someone because the person annoyed the defendant and the defendant has anger control problems or raping a female because she broke up with him and he needs to feel the power and control over her then this would assist immensely with underscoring the motive issue in the case. This provides good insight into the purpose or motive and can also assist in locating and obtaining the necessary information used as evidence to assist in proving the elements of the crime against the defendant.

Police Use of Force and Police Practices Expert Consultant

                                 Barone Consulting                                                              

Use of Force and Police Practices Expert Witness                   

Contact Information: Phone or Text (863) 381-3108 / email: Pabarone@aol.com

Dr. Peter A. Barone, Esq. is a criminologist and legal expert who is an experienced courtroom witness who has testified in and conducted thousands of legal proceedings including depositions, hearings and trials. He is currently a law enforcement officer and has been in Law Enforcement since 1975. He has investigated major cases such as the Miami River Cops case, several murders of law enforcement officers and the major FBI Shooting in Miami. He is currently a Certified Hostage Negotiator on the Crisis Negotiations Team. He has written, assessed and participated in several active shooter scenarios for the past several years with the Sheriff’s Office and with APC Consultants.  He has been interviewed on radio as a law enforcement expert. He has also been a certified Counterintelligence Agent with the DOD serving in the Middle East. He also holds Active Shooter, Use of Force, OC, ASP, Handcuffing, Impact Weapon, Defensive Driving, Police Legal Issues, First Aid, CPR, Explosive Ordinance Explosive and Chemical Weapons certifications. He is a licensed practicing attorney since 1992. He has served as a legal Police Legal Advisor, Major Crimes Felony Prosecutor and a Certified Mediator. He has prosecuted and won capital sexual battery and an attempted murder cases. When he left the office he was prosecuting 20 attempted murder cases, two second-degree murder cases, two first degree capital murder cases, and several life felony child sexual battery cases along with his other major crimes felony cases. He has testified at and selected grand juries for capital murder cases. He has been a university professor since 1996; was the coordinator of two programs and currently the Chair of the Criminal Justice Management and Pre Law Programs. He has been a national lecturer and a military and police instructor since 1983. He is a Certified Use of Force Analyst through the Force Science Institute, He is a qualified use of force expert and Certified Forensic Consultant and Certified Criminal Investigator through the American College of Forensic Examiners Institute and on the Board of Directors for both specialization certifications. He is on the Fatality Review Board and the Domestic Fatality Review Board for the 10^th Judicial Circuit Florida. He teaches courses for Attorneys and Physicians which are approved for CLE and CME credits. He earned his Ph.D. in 2013 in Public Safety and Criminal Justice from Capella University, LL.M degree (Post Doctorate) in International Law in 1997 University of Miami School of Law in Miami, J.D. in Law in 1991 from St. Thomas University School of Law, M.S.M. degree in Management in 1987 St. Thomas University in Miami, B.S. degree in Human Services Criminal Justice in 1982 Edison College in New Jersey; A. S. degree in Law Enforcement in 1977 from County College of Morris.  Current research of 6,000 OIS from police Agencies throughout all 50 states.

                                  Areas of Expertise                                                                                       

Ø     Officer Use of Force incidents

Ø     Officer Involved Shootings incidents

Ø     Officer Involved Use of a Vehicle as a Weapon incidents  

Ø     Officer Involved Shooting at a Moving Vehicle incidents           

Ø     Officer Involved Use of Weapons of Opportunity incidents                                                     

                                  Services Provided

Ø  Evaluation & Opinion of Police Practices & Police Use of Force Cases

Ø  Review of Law Enforcement Investigative, Documentation and Reporting Procedures

Ø  Deposition Preparation and Support

Ø  Assessment of Legal Aspects of Evidence Discovery, Preservation, Processing, Collection, Impounding and Court Room Admissibility

Ø  Assessment of Law Enforcement Use of Force and Legal aspects of 4^th Amendment Issues of Seizures

UNDERSTANDING THE TRUE AND SERIOUS DANGER OF SOMEONE WHO EXITS A VEHILCE AND AGGRESSIVELY APPROACHES YOUR VEHCILE WHILE OFF DUTY

            UNCONTROLLED ANGER TURNING INTO ROAD RAGE

Anger is an emotion that at times can be rationalized due to totally frustrating and unfair situations over time. It can also be understood to happen when total emotion overrides logic and common sense in a traumatic moment and is evidence by the reduction of the crime of voluntary manslaughter in the case of catching a spouse having sexual relations in your bed with someone else when you arrive home unexpectedly. However, anger which is stimulated by a simple act or comment is something that is a very dangerous activity to be involved in with a person demonstrating those actions.

Anger can be the result of hurt pride, of unreasonable expectations, or of repeated hostile fantasies. Besides getting our way, we may unconsciously use anger to blame others for our own shortcomings, to justify oppressing others, to boost our own sagging egos, to conceal other feelings, and to handle other emotions (as when we become aggressive when we are afraid). Any situation that frustrates us, especially when we think someone else is to blame for our loss, is a potential trigger for anger and aggression. So, what is frustration? It is the feeling we get when we don't get what we want, when something interferes with our gaining a desired and expected goal. It can be physical (a flat tire), our own limitations (paralysis after an accident), our choices (an unprepared for and flunked exam), others' actions (parental restrictions or torturing a political prisoner), others' motives (deception for a self-serving purpose), or society's injustice (born into poverty and finding no way out), or (someone not going over the speed limit because they feel they can speed and you are now in their way and it becomes worse if you call them on it). Individuals like this can be set off by any simple little action that they perceive is stopping them from satisfying their need for self-indulgence and self-satisfaction. There is no room for logic because it is their reality and no one else matters. The more they are frustration from obtaining what they want the more desperate they become and the less logic they will use in an attempt to satisfy the need they are seeking to be fulfilled. Anger is feeling mad in response to frustration or injury. You don't like what has occurred so you lash out with pure emotion and the emotion overrides your brain and your logical thought process and you rationalize that the actions you are taking are valid and logical when they are not at all logical for that particular situation. Someone in this state of mind is very very difficult to deal with due to their totally myopic view and the false emotional reality that they have fabricated based upon their skewed perception of what has occurred regarding them not getting what they want when they want it.

 

In a case like the driving incident I discussed in my last message we are looking at an individual who is demonstrating narcissistic and self-centered behavior in addition to lack of self control. This individual has made a voluntary cognitive decision (mens rea) to violate the law from the onset. He has decided to satisfy his need for control, self- satisfaction and to achieve this need of being in control and doing what he wants when he wants to do it and he has begun the demonstration of this mind set via his initial speeding on the roadways. Now, people speed when they are late and sometimes when they are not paying attention to the speed limit and this is still an infraction; however, the reason is different. The person in the incident does it because he feel like he can and he does not really care about the law because he feels he is above the law and is only worried about satisfying his need for self-gratification and self-satisfaction.

When he encounters someone or something like a red light or stop sign these individuals go right through them and all of us have seen ourselves just barely make it through the yellow before it turns red and we see, in our rear view mirrors, that person who is speeding and it at least 6 car lengths behind us go right through the light. This same person has the same mind set when they encounter someone who is in front of them doing the speed limit and they feel the same need to satisfy their urge of the law not applying to them and they use intimidation, which in their lives they also use a great deal of time  to get what they want when they want it; however, if they encounter someone who is going to just go the speed limit and decide to not move over or someone who is going to do the speed limit and not move over because of the traffic situation they are going to intentionally with (mens rea) violate the traffic laws even more and progress from speeding to seriously dangerous tailgating of the individual in front of them hoping to intimidate them.

The serious issue here is that they feel that they have the right to have that person move over for them and they also fee they have the right to violate the law and use intimidation. They have no idea if a 7’00” 450 pound weigh-lifter is driving the vehicle in front of them, and if something does happen they may be at the bad end of that encounter. The reason for this is that they have used these tactics in their life so many times before successfully that the pattern recognition they have is that 97% of the people will move for them and their intimidation is reinforced each time this happens causing them to have learned that this behavior works in satisfying their need for power, control, and their narcissistic and self-serving personality. This is not a rationally thinking individual and that is what makes them dangerous. You are not at the level of preparedness for an encounter with them because they go from 0 – 200 in a second with no reasonable provocation. You need some provocation to get you to the level they are at and your delay is too long to reach their level and that is what makes it so dangerous. In addition you are not logically expecting the actions or reactions perpetrated by them.

They have an ego that is out of control and their super-ego has no ability to be a governor on the id which wants what it wants when it wants it and no questions asked. They only know instantaneous gratification and it is their gratification they seek and they will use violence to reinforce you not complying and getting in the way of that gratification. Most individuals know when they did something dumb or ignorant on the road or somewhere else and when pointed out to them do not really enjoy it; however, a rationally stable person with no anger issues and not being totally self-centered, egotistical and narcissistic will rationally think about what they did and realize the danger or negative nature of their action and try to make a mental note of not doing it again due to the results that could have occurred. However, these individuals are rationalizing what they did and are now incensed that someone had the nerve to call them on it and also prevent them from satisfying their need for self-satisfaction. They are also upset because their use of intimidation did not work. They are now ready to unleash the anger from the frustration and non-satisfaction of fulfilling their need on someone else that provides them with any provocation, in their mind, (because reality is what we perceive it to be via our own lenses) and this makes them more dangerous because the time between when it happened and the next incident is festering time and the frustration and anger is now building and they have no respect for anything or anyone that gets in their way. This was demonstrated by Michael Brown in his actions in Ferguson with his encounter with the store clerk when exiting the store after the strong armed robbery and his next encounter was with Officer Wilson.

I the incident I described in the last posting it was when the picture was taken this was the last straw. At this time I had no idea that this person was one of these individuals. I did feel the overreaction to me pointing out their idiotic move was a little excessive and the continued giving me the finger for about 30 more seconds until I could no longer see him in front of me. Now in hindsight he probably continued with the finger for a few more seconds. He also more than likely was cursing and venting due to my non-compliance to his use of his vehicle as a tool of intimidation; however, I had no way of knowing or seeing this from where I was at and my mind had already left this incident and was onto my lectures I was going to be giving for the next several  hours.  

Once I took the picture that was the ultimate push for him. I got in his way of satisfying his need for speeding and blowing through the roadway past everyone else because he is narcissistic and better than everyone. I did not move when he intentionally used physical intimidation via his vehicle almost touching my bumper and then almost hitting me when he passed me. I insulted him when I had the nerve to point out to him his idiotic actions. I was not intimidated and waved him on when he was giving me the finger and screaming and yelling from his vehicle. Now I have the nerve to take a picture of his vehicle. His actions now are the most revealing. He, without any regard for his safety, slammed his vehicle in park, violently flung his car door open, flung his seat belt from his  body and jumped out of his vehicle. These actions indicate he was posturing to show me his peacock feathers and I was supposed to be frightened and so scared that I would try to pull away or cower down giving him the self-gratification he needed. He also showed that via his non-concern for his own safety that he has done this before and his pattern recognition of these events was that they always worked and he had nothing to fear because in his past events people backed down and he saved face and was emboldened more to perform this again without concern for his own safety. He also wanted me to exit my vehicle to place me in a mutual combatant role which did not happen. In fact, when I stayed in my vehicle, did not undo my seatbelt and did not open my car door he grew even more desperate. His emotional state was so bad and so dangerous that he needed an augmenter to assist him in obtaining his self-satisfaction  and control of the situation that he looked around and saw an authority figure he felt he could use and that was the Avon Police Vehicle. He threatened that he was going to call the cop even though he was the aggressor, drove his vehicle above the speed limit, tailgated me, use his car as a weapon to intimidate me to drive faster, almost hit my vehicle when he sped past me on the right side, and then existed his vehicle screaming and yelling and approaching my vehicle in a menacing and threatening manner. His emotions overrode all of this and all he could consider was his self-satisfaction due to his narcissistic personality and need for control and satisfaction. What broke the loop he was in was my badge coming out of the window because now he faced two cops and this would have placed him in a less controlled position and to have even less satisfaction. Being certified in Force Science I knew I had to do something that was going to break the loop and not be something that would escalate the situation and the Avon Park Police Vehicle was thankfully there and I had my badge.

If his loop would not have been broken and he continued to my vehicle this could have ended in a bad way due to his violent mindset. That was evidenced by the further comments of pure frustration and amger after he was totally frustrated by him still not obtaining his satisfaction and being thwarted by the Avon Park Vehicle and my being a law enforcement officer. His comments of "I do not give a shit about your bade" and "you can shove that badge us your ass" all indicate his pure frustration of nothing working and him not satisfying his need for domination, control, and self-satisfaction. This is a comment about his view regarding the authority in society and him feeling like he is totally above it. It is about him telling the Sheriff, the State Attorney, the Attorney General and the Governor that they can take their laws and the people who represent them in the streets and court rooms and shove them because in his mind he is not obligated to obey them and his personal satisfaction is above the law and them. Remember the recent incident in Ferguson MO. Where the protesters were blocking the highway illegally and one of the individuals in the lanes of traffic drove through slowly and the protestors were rushing to get the tag to call the police on the person and they were a minute before cursing and demoralizing the same officers they wanted to help them give this person a ticket for driving on the highway like he had the right to do when they were the ones breaking the law. I am a trained mediator, trained negotiator and CIT trained and a criminologist and can tell you that you are encountering a person with high levels of anger who is not rational and will take actions to satisfy their own narcissistic needs and trying to rationally speak and reason with these individuals is not going to be something that will work.

Know the law, know the signs, watch for the signs, do not get drawn into their game because it can be deadly and have a negative outcome for all concerned. Understand what their actions really mean in an underling sense and how deep this defect goes and how dangerous they can be in an attempt to accomplish the self-gratification and satisfaction.

PLEASE pass this onto other people who are in law enforcement and are not in law enforcement for their safety.

Thank you for taking the time to read this very important message.

Dr. Pete

 

 

 

 

                                                   

 

WHAT TO DO WHEN YOU ARE OFF DUTY AND ENCOUNTER AN IRATE DRIVER AND A STAND YOUR GROUND ISSUE

This is a real world incident that occurred and it happened to me. It was an opportunity to put into practice what I teach my university students and the law enforcement personnel that I train. Please read this and pass it on to others in an attempt to have them remain safe and not get bated into taking the wrong action in one of these situations.

I was in my persona vehicle driving to work on US 27 and as I passed through the area right before the traffic light at the College I was beginning to slow down from 55 to 45 due to the change in speed limit near the gas station. As I began me deceleration I notice a vehicle coming closer and closer to the rear of my vehicle. I was in a great mood knowing I had about 4 hours of teaching to do and then back home and off until Tuesday so I made the assumption that the person driving the vehicle would begin to slow down. Well I looked back again in my rear view mirror and now the person was directly on my rear and was getting closer and closer and I was not going to speed and there was traffic around me so I started to be concerned. When we got to the beginning of the gas station area the person pulled to the right really fast and almost hit the rear of my car and as he passed I yelled out to him that was a “real freeing idiot move”.  It was an idiot move. He could have caused me to get into an accident by me focusing on him. He could have hit me if I had to stop for any reason. He could have clipped my car when he pulled around to the right. He began giving me the finger and cursing at me and I went into Use of Force mode and Legal Stand Your Ground mode and waved him on and slowed down to keep my distance from him. He must have been doing about 15 miles over the speed limit so I made the assumption I would not see him again. Two mistakes here. One; my window and his window were both open and based upon his actions while operating the motor vehicle there was no telling what he could have had in his possession and with the display of his temperament anything could have happened. I expressed my assessment of his dangerous and violating actions as he passed without thinking about my safety. Second I assumed I would not see him again. Incorrect move number two.

I was driving slow thinking about the lectures I was going to be giving in class and as I passed the area new big lots I changed lanes from the middle where I had been driving to the left so all of the cars stopping for the eateries would not constantly delay my progress as I do this every morning when I go to work. Well as I am thinking about my lectures I am approaching the light at main street in Avon Park and I notice I am now coming up on the same Georgia tag that I say fly by me when the irate driving tailgated me and almost hit me while passing me. I had the turning lane to the right and cars to the left and that is what it is like at 8:00am during the week in this area. So I am slowing down and hoping the light will change and it does not. Once I am behind him, at a distance, I see him looking in the rear view mirror staring at me and making hand gestures. At this time I once again go into Use of Force and Stand Your Ground mode and am thinking that this guy could do just about anything so I said I am going to keep focused on him and his car door and then I thought is this guy jumps out with a gun no one is going to know what the vehicle looks like or the tag. I was not going to take my eyes off him or his car door to call dispatch because that inattention could be my life. So I reach for my phone and on the front as an icon is my camera and I said I have to do this and I do not want him to see it but I have to do this now. I try to get the camera up to take the photo without him seeing it and he sees it and goes completely ballistic high order irate and nuts. He starts yelling and screaming from inside his car. He then slams the car into park, flings the door open, throws his seatbelt and jumps out of the vehicle and begins coming towards me screaming and yelling and waving his hands and arms.

At this time I am thinking I do not believe he is coming here to ask for directions so I need a plan. Now here is where I was glad that I am a Use of Force Expert and Legal Expert in the areas of Use of Force and Stand Your Ground. Right in front of me I now have the exact example that I use in my classes and in my lectures. I sat there and I kept my seat belt on and buckled, never opened the door and never made any aggressive movements at all. Here is one of the first lessons I want to convey. If you are on duty, off-duty or even retired and this occurs what is the most efficient and effective weapon you have that can hit the target to stop the threat with ease; it is your vehicle. I kept my eyes riveted to his hands. He was coming towards my vehicle. In my mind I thought if he pulls out a knife in close proximity to my window or a gun I will use my vehicle as my defensive weapon. It is easy to aim, it is so large it cannot miss the target, it is something that most people will not think about being used as a weapon so you have the advantage of surprise. If you have a firearm with you it can be a real challenge to use it in this type of situation due to several factors. First if you are a right-handed person you are going to be in a bad positon to fire at the suspect because your body is going to be very contorted and uncomfortable. If you have the time and mental acuity you may try to change hands and shoot lefty and there is going to be an accuracy issue. If you do fire your weapon under these conditions what will be the level of accuracy? Is there a great propensity to miss and hit an innocent bystander? Using your vehicle as a weapon when you are in a self-defense situation can be the best weapon selection possibly at your disposal.

Now in my case as this irrational irate out of control individual was walking toward me and screaming and yelling he noticed an Avon Park Police Vehicle at the Corner waiting to make a right turn and yelled to me there is a cop you want me to call him? As this irate individual is still walking towards my car slowly I yelled back saying yes call him because you were tailgating and you are out of your car coming towards me in a violent manner so yes please call him. At this time he was getting closer so I thought it might be time to try one last thing that I never do unless absolutely necessary and that is I pulled out my badge from my belt carrier and put it out the window and advised him that I was also a cop and I really would like for him to call the cop in the car. It worked and he stopped dead in his tracks; however his mouth and comments never ever stopped. He turned around cursing and yelling and screaming fuck you, fuck your badge, I do not give a shit about your badge and you can shove that badge up your ass. I yelled out to him that he needed to call the cop or just stay in his vehicle and go about his business. Remember, this was the only time I identified myself and it was done as a last resort to hopefully stop him from getting to my window where I felt something not very good was going to occur. This action assisted in preventing something that could have turned out to be really bad. It is usually better to be a great witness in an off duty and non-uniformed situation than to take action that can be misconstrued due to no police vehicle and no uniform because if you exit your vehicle to take action it provides the individuals with the ability to advised that they did not know you were a cop and that you aggressed them and they took the action because they were afraid of being victimized by you.

I thought about what else I would do if he came to my window and if he had a weapon that I did not see until he got there. I, thank goodness, have been training in the martial arts for many years and if any part of him entered into my vehicle we now have a burglary and if he strikes me it is a major felony. I am in fear for my life and I have stand your ground to rely on and take the necessary martial arts action I need to take.

After the incident was over I thought it through and was very glad that I had the training I did and knew to not take off my seatbelt, not open my door, not get out of my vehicle, and to have a plan of what to do based upon the law. Knowing the law and knowing what the law says about these types of incidents assisted me in using progression of activities to keep myself protected and also allow him to be the aggressor and place himself in the negative legal position and also in the negative strategic position in that car versus weapon can be great if you can be focused and know at what exact moment you need to take that action. Of course the actions will be different if you are in an on duty capacity.

I know someone is going to make a comment about me making a comment about his actions being that of an idiot and this is the response to that comment. The First Amendment covers the comment that I made because you can make an observation as to the action taken by a person that you witness that has truth and validity to it as this one definitely did. Even the president has had, and continues to have, many people who are well known and renowned calling his actions regarding the Iran Nuclear Deal dumb and stupid. The adjectives dumb, stupid, and idiot all fit in a very close community. So advising a person that the act they just performed in your presence is “a freeing idiot move” is a totally legal and a reasonable comment. The responses of this individual were not reasonable and not rational at all.  Also, I am not a believer in this political correct nonsense of which many prominent individuals are not voicing their opinions that politically correct is ridiculous and produces a society of liars and people who misrepresent. Also, I am so sure that no one has ever said something worse that what I stated to a driver who was endangering them and other drivers on the road. So, before you make the comment and divert from the learning points here, please do some pattern recognition in your mind regarding some of your most prize moments on the road. Once you are done please focus on the important learning points contained in this writing.

One last item that I really found to be very interesting, that set this person off, was the fact that someone was taking a photograph of him in his vehicle; however, individuals like this do not want cops to say a word when they are photographed.

His actions demonstrate that he has some serious issues. He has no control of his emotions and is impulsive. He acts in a dangerous manner by driving his several thousand pound vehicle through the streets at high speeds and in a reckless manner tailgating people without regard for anyone’s safety. He becomes completely irate when someone takes his photograph. He has some serious self-esteem and anger issues in that when someone calls him on doing something that is unlawful and dangerous he has to strike out immediately and repeatedly while knowing full well his actions were wrong. This is also another reason why you do not get out of a vehicle if you feel something is not right because going up to this individual provides with them with the element of surprise if they have a weapon and it also takes you out of the victimized positon and now there can be two aggressors.

Please keep in mind that even when you are minding your own business and just trying to get to work that there are people with issues and situations that are going to come into your life that are unreasonable and very dangerous and you need to be prepared with the knowledge of the law as to what you should and should not do and can and cannot do in these situations. It is quite obvious that today we are dealing with individuals who are embolden and disregard laws, mores, norms, and any type of respect and these individuals will take actions that normal and reasonable people would not. Always be vigilant and prepared to encounter these types of individuals at any time.

Know the law, know what you can use as a weapon that will be effective, efficient, and safe to yourself and to those innocent civilians around you. Know how to place the aggressor into that position and keep them there and keep yourself out of that position and this is especially true if you are off duty in civilian clothing. If you have a car that has a voice activated phone calling system or a phone that has a phone activated calling system use it and make sure you call the dispatcher if anything like this occurs. However, do not take the chance with a normal phone that would require you to take your eyes off of an irate out of control person like the one I was dealing with on this day.

Be safe.

Dr. Barone

WHAT IS THE REAL TRAINING LAW ENFORCEMENT NEEDS AT THIS TIME TO SURVIVE USE OF FORCE ENCOUNTERS ON THE STREET

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.

REST IN PEACE OFFICERS JEFFREY WESTERFIELD AND OFFICER PERRY RENN

Once again we have to morn the death of two of our brothers in senseless shootings trying to be justified by myopically delusional family members. Lets focus on our prayers for the families of these two veteran officers and for all of our brothers and sisters who are carrying a badge that are targets just because they are part of the law enforcement family. May their souls rest in peace and may their immediate families receive the strength of our Lord to help them through this tragic time. May their extended families also find the peace of the Lord and help them through this time and may St. Michael be ever vigilant and maintain his watch on all those who carry a badge and work to keep society safe. May they rest in peace and may the perpetual light of our Lord shine upon them forever. Dr. Barone

* This image was presented on face book by Captain Randy Labelle.