Let’s Talk: Police Shootings (Part 1)

Let’s Talk: Police Shootings and Reflecting on Them — Part One

Ed. Note: While the article below [of which I am excerpting key areas] was sent last year to over 3,000 police leaders across the country, I do not believe it has had the discussion it deserves. Here are two seasoned senior police officers from a large metropolitan police department attempting to struggle with what I believe is the crucial problem facing today’s police in America – the use of deadly force. These are experienced police leaders and what they are suggesting as to how police agencies should react should become part of policing’s “body of knowledge.”

The authors are Asst. Police Chief Timothy N. Oettmeier spent over 42 years with the Houston Police Department. During his career he rose through the ranks from Police Officer to Executive Assistant Chief of Police. During his career he served as the Director of Training, the city of Houston’s Inspector General, and as an Executive in charge of Patrol, Investigations, and Support Operations and Senior Police Officer Terry A. Bratton spent 39 years with the Houston Police Department. During his career he worked as a Police Officer and Senior Police Officer in Patrol Operations and in the Training Division. He is recognized in State and Federal court as an expert in use of force and officer involved shootings. He has done extensive training in these areas as well as in the use of tactical decision-making.

Read carefully what they have to say and then take steps to incorporate their suggestions into your police department whether you are a police or community leader.]

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REFLECTIONS ON POLICE SHOOTINGS: A Look at How Agencies Should React – [Abbreviated]

Timothy N. Oettmeier and Terry A. Bratton

March, 2017

The purpose of this article is not to suggest officer involved shootings can be eliminated. These incidents will continue to occur as officers fulfill their duty and obligation to protect citizens or themselves in a manner that may require the discharge of their firearms. These eventualities, however, enhance the public’s right to know why such incidents occur; and necessitate an accounting of the behavior of all involved…

Although the general public supports a majority of police performance; that support does not dismiss interest in those incidents where officer behavior comes under intense public scrutiny. For example, during the past few years, a number of shootings by and of the police have, raised questions and sparked outrage, consternation, and levels of doubt and mistrust of police not seen in our country for several decades. This level of discourse is rooted in an alarming number of questionable shootings where it appears the action taken by the police was not necessary.

Not surprisingly, local community activists and concerned citizens alike have called for more transparency and independence over investigations aimed at police action. Throw in the prevalence and use of cell phone cameras, body cameras, and private security cameras that have captured some events in real time; and it is no wonder some people have jumped to conclusions and loudly demanded immediate justice for victims…

Our concern is the apparent lack of discussion about what can be done to help minimize these circumstances from recurring. In some instances, removing the proverbial “rotten apple(s)” who use force unjustifiably may be sufficient. How the heck they came to join the police is hard to fathom; a concern that speaks to the various selection processes and / or how the duration and intensity of police work affects an individual…

1. Recognize Justified Shootings Are Not Always Necessary Shootings

There are two levels of accountability officers are subjected to when they use force.
The initial level of accountability asks if the officer’s action(s) was in accordance with the law. This decision is originally made by prosecutors or a grand jury – although, in rare cases, may involve members of a jury in a court of law. The attention at this level focuses on an officer’s mindset and actions taken when the force in question, especially deadly force, was used.

The claims by some today that police are indiscriminately murdering people, are clearly misinformed about the application of the law. Murder, as with other types of violent crime requires that the mindset and actions of the person must fit within the confines of the criminal statute governing that behavior…

In making these decisions, prosecutors must equate elements of a statute to facts and circumstances of the situation in question, which makes an investigation of the incident extremely critical…

Of particular importance in cases involving police shootings, are those facts surrounding the actual discharge of the officer’s weapon. What was the officer’s mindset; was the act of shooting justifiable within the parameters of State and Federal law, as well as within the terms of how the suspect was behaving the moment the officer’s firearm was discharged; was the suspect armed; was there a belief he or she was armed; or, did the suspect pose an immediate physical threat to the officer, etc.? Not only does the public at large want answers to these questions; so will citizens serving on a grand jury panel or as a jury member in a court of law.

A second form of accountability is administrative and asks if the officer’s actions were compliant with department policies and procedures. These efforts are capable of determining if the officer’s actions were “necessary.” Despite being under the purview of a chief or sheriff, it seldom receives the attention it deserves.

The public should realize policy violations, in and of themselves, might not be violations of the law or one’s civil rights. However, violations of the law and one’s civil rights should always be policy and procedure violations. For this not to occur, means there are serious flaws within an agency’s system of accountability and speak directly to ineptitude on the part of an agency’s leader and executive staff…

There is a general inclination to believe if an officer’s actions were justified in accordance with the law; then those actions certainly must be consistent with policy and tactically correct. But the question is: “While a shooting may be legally justified was it necessary?” Is it possible other tactics could have been used; or, could policies or the training be unclear?

Can officers make an error(s) in judgment prior to having to make a decision to shoot a person? Is it possible an officer’s actions leading up to a fatal encounter were not necessary and were outside the guidelines of policy and training? Was there time and information sufficient to warrant taking a different approach? Instead of escalating the situation by approaching a suspect too quickly with weapons drawn, was it possible for an officer to de-escalate the matter from behind cover?

One must be sensitive to the manner in which the officer acts during these highly stressful encounters. We cannot continue to expect officer responses to be one-dimensional (i.e., always act aggressively) irrespective of the nature of the incident of person(s) involved.

When the officer confronts someone, who is under extraordinary stress, it is doubtful the person and officer will similarly perceive the situation. It is unlikely the person will realize any quick movement he or she takes could have disastrous consequences. For many reasons – fear, obstinacy, naivety, the influence of substances, mental impairment, or simple defiance – many people in distress decline to listen to, let alone cooperate with, an officer.

The convergence of these factors inhibits effective split second decision- making, but they all speak to the issue of “necessity.” A shooting may be justifiable, but it may not have been necessary. Are there instances when a dangerous situation could have been resolved other than with deadly force? I would say for some recent high profile police shooting incidents in the United States the answer is yes.

Knowing the possibility always exists that any officer involved shooting could be justified, but also unnecessary means it is incumbent upon chiefs and sheriffs to demonstrate the thoroughness of their policies governing this action.

2. Policy Deficiencies Cannot be Ignored

Any use-of-force policy should be based on Federal and State laws, as well as valid and reliable law enforcement education and training procedures. While it is an acceptable practice for law enforcement agencies to make their use-of-force policy more restrictive than Federal and State law, it must be flexible and understandable enough for officers as they make split second decisions.

The determination as to whether or not a shooting was “necessary” is strictly dependent upon the sufficiency of an agency’s policy governing the use of force. It is unfathomable to think some police chiefs and sheriffs have no policies or procedures governing this aspect of police work. While I would like to believe this is highly unlikely, it is not so unlikely that these types of policies are deficient in their design. Critics might even argue this is intentional as a way of protecting the police…

Policies are indispensable because they provide the foundation from which standard operating procedures are developed. Together, policies and procedures provide the necessary guidance for officers while minimizing unfettered discretionary decision-making that can hinder an officer’s ability to successfully resolve these incidents.

But what if this guidance is unclear? It is one thing for police chiefs and sheriffs to claim the existence of a policy, but what good is it if employees who are expected to conform find it to be cumbersome or confusing? Even worse is the prospect employees have not been adequately informed about the proper protocol; or have not been subjected to any training opportunities where they can actually work with these directives.

So it begs the question of chiefs and sheriffs, do their policies include concise directives and sufficiently practical guidelines governing the use of tactics in use of force situations? Some police representatives would be quick to say one cannot “legislate” tactical applications for all possible use of force scenarios; thus, the best one can do is ensure officers’ actions are governed by the “objective reasonableness” premise set forth by Chief Justice Rehnquist of the Supreme Court in Graham v. Connor – 490 U. S. 386 (1989)…

Police executives need to revisit their policies and procedures to ensure they provide appropriate guidance in how these difficult incidents should be handled. If one can increase the effectiveness of how dangerous scenes are being handled, the probability of unnecessary consequences should be reduced.

The use of force does not in and of itself indicate any Constitutional or policy violation. A series of shootings do not in and of themselves indicate bad policy or training. However, they should be reviewed and various questions asked. A policy may be inadequate or the policy may be fine and the training may not mirror the policy. The officer(s) involved may be an issue. Consequently, the situation must be examined from multiple perspectives including everything from policy and training (recruit, field training – does the culture undo what was learned) to supervision. Generally speaking, if problems exist, they will not be isolated to a singular cause. Thus, police executives seeking to remedy a problem must look at the total picture rather than focusing on only one aspect of it.

In doing this, police chiefs and sheriffs are demonstrating efforts to strictly adhere to the concept that the use of deadly force is truly a last resort to protect life. This absolutely cannot be mere lip service but should be reflected in policies, procedures, training, review processes and disciplinary protocols.

3. The Integrity of Administrative Investigations Must Be Enhanced

Lack of integrity can be related to investigators failing to ask critical questions that will reveal specific information about action and behavior exhibited by the officer(s) involved in a shooting incident. As authoritative decision makers, police executives have a duty to publicly account for the thoroughness of these types of investigations!

It is naïve to think officers do not make errors in judgment, especially in highly stressful situations. It is the responsibility of police executives to determine through their administrative investigations if such errors actually occurred during the course of the incident. How this occurs is extremely important…

While we agree with the supposition these errors do not equate to a “cause and effect” conclusion; they do constitute justification for holding officers (as well as trainers and supervisors) accountable for their decisions and accompanying actions. There is no guarantee any action taken by the officer, short of shooting someone, will result in a person altering their behavior. But if one can minimize the occurrence of these errors, there is at least a probability that a different outcome could be produced.

It is important to understand the relationship between the concept of “necessary” and officer performance characterized by the presence of tactical errors. First and foremost, even if an officer’s performance is error free, a person could still be shot and injured or killed – and in such a circumstance, the shooting could be both justified and necessary.

However, what about instances when the officer makes one or more errors; or the officer commits a “critical error,” one that has more implications associated with it than others, does this mean the resultant shooting was not justified? The answer can still be no, it can still turn out to be justified; and even if errors were not made, there are no assurances the outcome would have been any different. But, one must not ignore the possibility that if these errors had not been committed, perhaps the shooting could or should have been prevented.

What we can be assured of is the commission of these errors may have unnecessarily placed both officer and the person of interest in a precarious situation. An officer’s actions may prompt a citizen to act in an unexpected manner. Conversely, a person’s actions may result in an officer taking unnecessary risks, which could lead to further escalation of tension and stress between the two parties.

Thus, a thorough investigation must move beyond just providing officers an opportunity to describe what happened and why. If one were to use the Las Vegas Metropolitan Police example, questions should be formulated in accordance with the 11 potential errors made at these scenes. Responses to these inquiries will have significant policy and training implications.

From this, the types of information to determine if circumstances existed that would have allowed officers to act differently – or, justify police actions as they occurred – will logically flow. At the very least, the following questions should be a part of the investigative protocol:

1. What type of information about the incident did the officer have before arriving at the location where the shooting occurred?
2. Did (or could) the officer wait for support from fellow officers before engaging? If not, was the decision to move forward without assistance “necessary?”
3. Unless circumstances dictated otherwise, did the officer try to assess the situation that could influence his or her decision-making before engaging the suspect?
4. If available, did the officer appropriately use cover and concealment throughout the encounter?
5. Did the officer engage in a verbal exchange with the suspect?
6. Did the officer issue appropriate directives to the suspect; was the communication conveyed in a manner consistent with bringing the encounter to a successful resolution or did the effort inflame the situation?
7. Did the officer use (or attempt to use) appropriate de-escalation techniques while handling the situation?
8. Should (or could) the officer have repositioned him or herself as a means of using time to reassess how to proceed?
9. Did the officer unnecessarily place him or herself in danger?

The purposes of asking these questions are multifaceted. First, it is important to learn lessons from one’s experiences, especially if the lessons learned will enhance officer safety while handling dangerous situations. The collective information gleaned from answers to these questions can be plugged into training protocols.

How else are officers expected to learn from their colleagues’ mistakes or replicate successes? Knowing how and when to do so is the essence of providing officers with tactical technique training.

Second, officer actions can be used to enhance policies and procedures. The amount of guidance or implied discretion within a given policy or procedure may require more clarification to help officers with their decision-making process. The practicality and utility of any policy or procedure must be commensurate with the officer’s ability to understand the policy or procedure’s value in helping him or her resolve an incident successfully.

Third, answers to these questions will assist executives in determining the relationship between the existence of errors (if any) and the eventual outcome of an incident, whether a shooting occurred or not. If the officer decides to use his or her firearm (or other types of force); then it is critically important to acquire information as to why this decision was made. How else is the “necessity” of the weapon’s use to be determined?

It is a reasonable expectation for the public to hold their police chief or sheriff accountable for not only asking these questions, but also for using this information to improve officers’ abilities to effectively handle dangerous incidents.

4. Aggressively Reduce Self-Imposed Officer Vulnerability

Vulnerability can best be described as the officer inserting him or herself to a dangerous encounter without use of proper tactics, such as cover or concealment, as a means of protection. Said differently, the officer places him or herself in harms way without considering or using elements at a scene to serve as a barrier of protection prior to interacting with the person.

In far too many instances, officers place themselves in positions of vulnerability by advancing on a known perceived threat to minimize danger by asserting control over someone. There are other times when officer vulnerability is the result of receiving and acting on incorrect or misleading information.

Time after time we find officers stating they were in fear for their life because they saw or thought they saw a person display a weapon in a threatening manner; grab for the officer’s weapon during a physical confrontation, or, make an overt movement leading that officer to believe that the person was about to obtain a weapon.

Overt movements are particularly difficult for officers, especially at night when an officer has a more limited view of the person’s clothing or vehicle or the person is non-responsive to the officer’s directives.

Depending on the officer’s proximity to the person, if the officer decides to shoot, he or she will claim self-defense because of the perception risk driven by the perception of the person being armed and posing as a threat to the officer’s life or another person’s life. By approaching the scene differently, however, to insure less vulnerability, the outcome would likely be different.

While there are no universal protocols, because these situations are fluid and unpredictable much of the risk felt by officers is likely strongly correlated to the vulnerability they feel. As such, rather than focus exclusively on the decision at the point force was applied, attention should also be directed to the actions of all parties prior to the deadly force moment.

In other words, did officers place themselves in a situation where they felt deadly force was needed as a means of resolving a situation they contributed to creating? A few examples are worth mentioning to illustrate this point.

•  Vehicular pursuits involving high speeds produce enormous stress and a release of adrenaline for all involved…
•  Similarly, when officers are called to investigate a suspicious person acting strangely the activity on first contact usually involves attempts to engage that person in conversation – an effort that is often either outright rejected or, at least, met with little cooperation…
•  Foot pursuits – especially those occurring at night when visibility is impaired – represent a third example of how vulnerability can influence police behavior…

The difficulty associated with these instances is the pursuing officer knows that at any moment circumstances may turn and they may find themselves being confronted by the person they were pursuing. The obvious risk involved makes it likely the officer will perceive vulnerability making him or her hypersensitive to an “overt movement” made by the fleeing person.

These three examples demonstrate how officers can contribute toward the creation of their own vulnerability. This is further exacerbated when officers feel pressured by time to resolve a situation. Time is driven by the perception of impending danger and the need to prevent what is danger from occurring or worsening. Officers need to distinguish when this perception is accurate and when it is not. They must not see time as an enemy; rather time, in many instances, can be an advantageous tool.

Whenever possible the preferred option is for officers to slow down how they process and conduct themselves at a scene, which in turn may allow for interaction to occur, or to assess other ways of handling a person. We believe this is one of the primary reasons most officers successfully diffuse dangerous incidents; they know how to effectively manage time and their responses to a person’s behavior. The removal of vulnerability can buy the officer time, which in turn can help determine if their initial perceptions about a person are accurate.

The presence of the officer’s self-induced vulnerability as a factor in any shooting incident should raise a red flag for investigators. While one’s vulnerability does not automatically equate to inappropriate behavior, the probability exists such behavior can be inconsistent with operational and training policies and procedures. This then, becomes a major concern an administrative investigation must address – what is the relationship between the origin of officer vulnerability and the necessity of a shooting?

Whenever officers contribute to being controlled by a situation, they are likely to be vulnerable. Vulnerability affects one’s perceptions, which in turn, can adversely affect the officer’s tactical decision-making. Officers must seek, whenever possible, to protect themselves first by minimizing their position of vulnerability especially when handling dangerous incidents. Police leadership has an obligation to enforce this mindset with viable policies, procedures, and realistic training protocols.

[Continued tomorrow]

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• The 43-page article can be viewed HERE
• And remember we don’t learn from experience — only by reflecting on that experience!
• Thanks to retired Chief Mike Masterson of Boise to alert me to this exceptional article.