A Problem in Madison

images (3)The department that I headed for over 20 years is coming under attack regarding the shooting of an unarmed intoxicated man last November. (For a news account CLICK HERE.)

It will become a moral dilemma for a police department that has enjoyed a high level of community trust, respect and support for over 40 years.

The investigation by the district attorney found that the officer involved was not criminally liable for the man’s death. Subsequently, the internal investigation by the police department found that the officer had not violated the department’s policy on the use of deadly force.

The chief has tried to be forthcoming regarding press conferences and the release of the department’s internal investigation.

Still, questions remain.

In the 1989 U.S. Supreme Court Decision, Graham v. Connor, the standard for police use of force became “objective reasonableness” — translated: what counts is what was reasonably in the mind of the officer regarding a deadly threat, not what someone else thinks.

For years, however, the department operated under a policy that highly cautioned the use of deadly force:

“Recognizing our legal and moral obligation to use force wisely and judiciously, it is the policy of this department that deadly force will never be resorted to unless an officer reasonably believes that a lesser degree of force would be insufficient to defend the life of another, one’s self, or in limited situations, to apprehend a dangerous felon…”  [in part, MPD Policy 6-100] (my emphases).

As in these and other situations in which state permitted police to do something, police leaders often chose a more restrictive use of police authority. In the 1970s, for example, we issued a policy regarding the use of deadly force that was more restrictive than what was permitted by Wisconsin law.

At that time, Wisconsin, like many other states, permitted police to use  deadly force against any “fleeing felon.” Our policy (and thus our training) instructed officers and required them to use deadly force only against those who, if not stopped, would present a clear and imminent life-threatening danger to others. Thus, auto thieves (most of whom were juveniles) and other thieves could no longer be apprehended by shooting them. Though state law permitted police to do so, we believed that it would be immoral for us do so.

When I discussed what I was proposing with the community, they overwhelming supported my decision. Some of my officers did not. Nevertheless, my commitment to the community was that deadly force would be used only as a last resort by Madison police officers because we, as a department, believed in the sanctity of human life and the importance of using a lesser amount of force whenever possible. This harkens back to over 150 years ago during the time Sir Robert Peel in England. When he (and others) organized the new Metropolitan Police. Nine principles were promulgated as “Peel’s Principles,” two of which have to do with the use of force:

  • Police ability to secure public co-operation diminishes the need to use physical force.
  • Police use physical force to enforce the law or restore order only when persuasion, advice and warning is insufficient.

This holds true today. Whenever force is used by police to gain compliance, they experience a lessening of public support. Therefore, physical force should always be a last resort.

A number of years later, the U.S. Supreme Court validated what we had done in Madison in their decision Tennessee v. Garner (1985) in which they held that police may use deadly force only if a police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

A number of the questions that have been raised in the community are listed below. More may be coming.

  1. Should the police be permitted to investigate a potential crime involving one of their own officers?
  2. Given the police culture, shouldn’t the district attorney form a team of officers from a number of area police agencies (but not involving the involved department) to investigate these kinds of deaths?
  3. The deadly force policy of the Madison Police Department addresses the department’s “legal and moral obligation” to the public. While the District Attorney may have addressed the department’s legal obligation when he determined the officer did not violate state law in taking the man’s life, does not there still remain the moral question: did the department satisfy its moral obligation to the community to “use force wisely and judiciously” and only after a “lesser degree” of force would be “insufficient?”
  4. If the police officer was legally authorized to use deadly force in this situation, should he have? Could other actions or tactics have been taken that would not have resulted in the man’s death?
  5. Are police officers adequately trained to handle situations in which an unarmed person fails to respond to verbal commands and attempts to physically grapple with an officer?
  6. Is it reasonable to believe that well-trained, seasoned police officers would react in the same was as did the officer in question?
  7. How are Madison police officers trained with regard to retaining their weapons and applying “less-than-deadly” force? Does the department use high-stress training scenarios similar to this one (someone trying to grab an officer’s gun)?
  8. Was the situation as dangerous as the officer has said given number of back-up officers in the vicinity? Is this not a fairly usual event for a police officer in a city well-known for its consumption of alcohol?
  9. Was the officer in question using “the castle doctrine” argument; that a person has a right to “stand his ground” and not retreat? Is that reasonable for a police officer?
  10. Will this be the new “standard of conduct” regarding how the Madison department will deal with a situation like this in the future?

The decision to take a life is the most important decision anyone will ever make. It’s effects are long-lasting if not eternal.

I was recently impressed by the wording of the deadly force policy from the police department in Portland, Ore. which has been under strong community pressure to control the number of police shootings. They are currently under a court order to do so. It reads in part:

“The Portland Police Bureau recognizes and respects the integrity and value of human life, and that the decision to use deadly physical force is the most important decision that a member will make in the course of his/her career. The use of deadly physical force will emotionally, physically and psychologically impact the member involved, the subject the deadly physical force was directed at, and the family and friends of both and can impact the community as well…

“The Portland Police Bureau recognizes that members may be required to use deadly force when their lives or the life of another is jeopardized by the actions of others…

“Members must be mindful of the risks inherent in employing deadly force, which may endanger the lives of innocent persons. A member’s reckless or negligent use of deadly force is not justified in this policy or state statute. Members are to be aware that this directive is more restrictive than state statutes(my emphasis)

[For the entire policy, CLICK HERE.]

In my new BOOK, I noted that restricting the use of deadly force by my officers created conflict within the department. But, at the same time, gathered respect for police in the community. It was a matter of short-term versus long-term thinking:

“One morning in the mid-1970s, I remember attending a briefing of senior day-shift officers, most all of whom were males older than I was. A number of them soon began  complaining about the changes going on within the department—hiring women, new policies that restricted the use of deadly force and the requirement that a supervisor call off  high-speed chases if they became too dangerous to the community.

“I listened as the grousing continued. Then I asked them, ‘When I came to the department, many of your wives told me they were embarrassed to say their husbands were police officers. They shared with me that those days of riot and turmoil took a toll on them and your children, as well. Now looking back, think — is that the case now? Or are your wives and children proud that you are a Madison police officer?’ It was quiet in the room. I had made a point. These senior officers knew they had gained respect under my leadership. Everyone had benefited from our effort to professionalize—to be a first class police department. They knew they were now viewed as respected professionals in the community” (pp. 142).

In the end, we developed a police department of officers that the community considers to be well-trained and led, controlled in their use of force, honest, courteous to every person, and closely in touch with the community they serve.  That is what professional police officers do in a democracy.

Some of those characteristics are under scrutiny today.

How and how quickly the department responds to this challenge will be essential for community support in the future. What’s best in the long-term?