Continuing Problems in Uses of Deadly Force

“While saying it found ‘much to agree with’ in a consultant’s report, the Madison Police Department rejected a recommendation to move toward a more stringent standard for the use of deadly force…”

The local news account continues…

“In a 76-page document released Wednesday, the [Madison] Police Department addresses each of 146 recommendations made in the California-based OIR Group’s report, released Dec. 14 after a year of research and in the wake of a string of high-profile fatal police shootings…” [Wisconsin State Journal, Feb. 1, 2018]

This is the struggle that is going on in many of our nation’s cities. Police resistance in moving toward a “more stringent standard for the use of deadly force.”

On the other hand, some police agencies have come to understand that their community’s desire to raise the bar on uses of deadly force. A good example is what is going on in Camden, NJ after that community abolished its police department and went to a county agency under the leadership of Scott Thompson. Also, cities which have been under DOJ consent decrees have committed to raising the standard while other police agencies across the county and for a variety of reasons do not.

Sadly, Madison, Wisc., a city I served as chief of police for over 20 years, is now one of those agencies. Madison has taken a ‘low bar” approach to use of deadly force in spite of what a recent study by the OIR Group found in a study and survey last year. I would have thought they would have modeled the high bar approach.

While the citizen survey taken by OIR indicates very high levels of satisfaction with the Madison department in terms of professionalism (81%), safety (75%), responsiveness (71%), and fairness (55%), one area seems to stand apart — it has to do with use of force:

“Question: Have recent officer-involved shootings and force incidents involving MPD made you concerned about when and how the Department uses force, including deadly force?” to which over 50% of those responding indicated they were “concerned” or “very concerned.”

To me, that is the area in which the department needs to focus — to allay citizen concerns about how and when they will use deadly force.

In order to do this, there must be a deep and open community-police discussion about deadly force use (especially within the black community).

Citizens across the city need to be asked, “How do you want your police to act in these situations?” I believe modern democratic policing today is a matter of gaining “permission” from the community to be policed. It is an essential part of effective community-oriented policing and developing problem-oriented community partnerships. Recently, Prof. Barry Friedman from NYU Law School argues this point in his book, Unwarranted: Policing Without Permission. (It should be on the reading list of every for police and community leader.)

Last year, a national group of progressive police chiefs (the Police Executive Research Forum [PERF] headquartered in Washington, DC) published their “Guiding Principles in Use of Force.” They wrote in part:

• “Agencies should continue to develop best policies, practices, and training on use-of-force issues that go beyond the minimum requirements of Graham v. Connor.

“The U.S. Supreme Court’s landmark 1989 decision, Graham v. Connor, holds that police use of force is to be judged against a standard of ‘objective reasonableness’ under the 4th Amendment ban on ‘unreasonable searches and seizures.’ Specifically, the Court stated:

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight…. 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.

“In Graham v. Connor, the Supreme Court outlines broad principles on how police use of force is to be considered and judged. But the Court leaves it to individual police agencies to determine how best to incorporate those principles into their own policies and training, in order to direct officers on how to perform their duties on a daily basis” (my emphasis) …

“In this report, PERF recommends a number of policies that, while not currently required by the Supreme Court’s standard, should be considered nonetheless, in the view of leading PERF chiefs. Many of these policies have already been adopted in some departments, including

• A duty to intervene if officers witness colleagues using excessive or unnecessary force;
• Requiring officers to render first aid to subjects who have been injured as a result of police actions;
• Prohibiting use of deadly force against persons who pose a danger only to themselves; and
• Specific limits on shooting at vehicles.

“By adopting these and other policies, departments can take steps that help prevent officers from being placed in situations where they have no choice but to make split-second decisions that may result in injuries or death to themselves or others.” (also, my emphasis)…

In my experience, police use of deadly force is less about the permissiveness of law and more about how citizens expect their police to act in these circumstances. Our criminal law is usually quite broad. Citizens can demand their police act in more restrictive ways.

For example, when I came to Wisconsin in 1972, the state law permitted police to use deadly force to stop any fleeing felon. My sense from the community was that the they did not want their police officers shooting unarmed persons and so we established a policy and training regimen that restricted police use of force in these situations — even while the state law permitted use of deadly force! (Years later in 1985, the USSC in Garner v. Tennessee prohibited police from doing this and our policy became the law of the land!) The same should happen with Graham. We also put controls on when our police were permitted to engage in high-speed pursuits and a method to terminate them when they became too dangerous.

I will also venture to say that given findings in Madison’s OIR Report and my own personal experience, citizens in this city expect their police to be more controlled in their use of deadly force and to manage non-firearm stand-offs, whenever possible without taking a life. This would be in keeping with the first PERF guideline in use of force, “The sanctity of human life should be at the heart of everything a [police] agency does.”

The $7 million jury award last year in the 2014 death of Ashley DiPiazza, a 26-year-old Army veteran, and over $5.5 million payed out to settle the civil claims in the deaths of Paul Heenan and Tony Robinson, should have been a wake-up call for the city and its leaders. In each case the District Attorney and outside investigators ruled the officers had acted according to the law. But a jury in the DiPiazza case thought otherwise.

Improving police use of force will take patience, persistence, and the passion of both police and community members. I say this because it ultimately is about changing a now-established culture within the police department. Absent a strong statement by police and community leaders that these three deaths are not standard practice and that measures will be taken to assure this does not become so, events like these will continue.

Change can happen, but it will only happen when citizens strongly and unequivocally demand these changes and police leaders are committed to leading them.

And they do so because it is the right and moral thing to do. And doing so will make their city’s “finest” police department even better!