https://nationalpolice.org/main/why-are-you-still-calling-the-cops/

by JFShults

The National Police Association (NPA) is pitching in with expert analysis of an important upcoming SCOTUS case: Kyle Smith, et al. v. Rochelle Scott, et al. The primary issue is whether the use of body weight to control a combative person is an acceptable use of force.

For the sake of the language used in the case, and as used by the media and law enforcement alike, since a death occurred, the question is whether the officers in the case used deadly force in a way they shouldn’t have.

For the civilian reader’s sake, we need to be reminded that the words “excessive force” and “deadly force” are not in the Constitution. What the Constitution does address is “reasonableness” in the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. If a person claims that the seizure of their person, i.e. an arrest, is unreasonable, federal law (see 42 USC 1983) allows the person to sue the individual or entity responsible in federal court. We also might be reminded that applying these laws to non-federal government actors was made possible by the Fourteenth Amendment. However, it took about 100 years for that to apply to lawsuits against local law enforcement.

There may be lawsuits in state courts for damages that are claimed to have arisen because of an unreasonable seizure (arrest), such as a physical injury, but the loss claimed in federal court is the loss of their right to be free from unreasonable government actions, not any physical injury. Federal courts have the liberty to include such claims for efficiency’s sake, however.

So, what is “reasonable”? As courts must arbitrate claims of unreasonable force and have spent many years doing so with eager lawyers wanting to define their plaintiffs’ accusations to sustain monetary awards and government lawyers seeking to save tax-funded payouts and maintain the authority of the law to maintain order. Generally, SCOTUS has given the benefit of judgment to the police, with an understanding that rapidly unfolding and dangerous events require the freedom to use one’s best judgment in the moment, without relying on hindsight, and without blaming the cops for being there in the first place. (See Graham v. Connor, 490 U.S. 386).

Recent decisions of lower courts have eroded this principle with the idea that if the officer could have, speculatively, avoided a situation that turned ugly, or if the officer(s) made a tactical mistake or misjudgment, then the officer should be deemed at fault.

Let me be a bit philosophical and hypothetical here. What if the defund, defang, and abolish the police ideologues were successful and *poof* no more police? Would law enforcement, as we know it, evolve again? There would still be laws, and there would still be lawbreakers, despite the notion that we can all self-regulate and create so much peace and equality that there would no longer be a human motive for anti-social behavior? We can dream, but we also know and have experienced rebellion and, yes, evil. With no collectively chosen agents of government, enforcing laws for the good of all would rely on private persons or groups to challenge lawbreakers. This system would elevate only physically or economically powerful people to the role now filled by police officers. We would appoint and pay government actors to keep peace, and we would find that arming them serves the pubic safety best.

With all due respect to other peacekeepers in the land, such as religious leaders, benevolent and charitable groups, social workers, etc., we would find that offenders who are willing to use violence will not respond to all the counseling, grace, and support in the world. So, yes, police agencies would evolve very quickly, and the public would demand it.

If, as I postulate here, we find that we must have armed government agents, we do so for one purpose: so that they may coerce behavior when individuals fail to conform to reasonable laws that protect the public at large. That coercion may be showing up, it may be a pointed finger, it may be a strong statement, and it may be physical force. None of those tools, used reasonably, should be taken away.

No one has the right to harm an innocent person. No one has the right to resist a lawful arrest. The use of coercion by police officers is highly regulated, even though no tool, no policy, no court decision, no tactic can be used with certainty of the outcome because every situation is unique in hundreds of ways. If a technique is used and a death occurs, that doesn’t necessarily mean that it was unlawful deadly force. The coercive technique may be one factor in a death or injury, but, absent the use of a firearm, there are multiple factors, including drugs and disease, that are part of the puzzle.

Especially in mental crisis cases, there is an inevitable behavioral component. To say a mental crisis that results in a call to police is just in the person’s mind is simply not biologically accurate. Many times, physical restraint is a medical rescue. If sitting on someone is an act intended to bring a person into compliance and safety, is it not reasonable? Are officers to be required to work the physics equation of weight vs. resistance over time, divided by pre-existing physical conditions? Not a physics professor, physician, or psychic could predict such an outcome, but a reasonable officer can surmise that failing to restrain a person can, indeed, be deadly.

If you don’t want the police to do the things that only the police can do, don’t call them. Let’s hope SCOTUS listens to the NPA and others and makes a reasonable decision.

Jane, you ignorant slut

 I just wrote my congressman and senators, so I’m not just blogging and Facebooking, thinking that by venting I am accomplishing anything. Whether my email (actually it’s not that easy, it’s a tedious and shameful navigational process to contact them) will nudge anything, we do recognize that votes count, dollars count, and raindrops make rivers. I also have donated to the ACLJ, our local pro-life pregnancy center, a homeless shelter, the American Legion, the NRA, to name a few. That, thus far, is the extent of my activism. What I have not done is call other voters uneducated or stupid and I hope I can convince others to have similar restraint. 

I did vote Republican but did not do so because I was brainwashed, think it is Jesus’ party, was afraid of a woman President, or am hateful of anyone. If there had been (in my opinion, to which I am entitled) a palatable Democratic candidate for President I may have voted for them (unlikely, but maybe). While I understand the fear of our current Executive bending the nation toward right wing extremism, history tells us that left-wing extremism is the other path to totalitarianism, and that’s what I voted against.

If commentators want to blame a certain set of 2024 voters for whatever they fear is happening, that’s convenient enough, but Presidential excess and governance by bureaucrats has a history of mission creep that brought us to where we are today. When I was a kid, we would gradually expand our yard by burning off brush. Unauthorized and unsupervised one summer day a friend and I decided to light a thinning fire, but looked away for just a bit and turned to see it already nearly out of control. Hopefully that parable is apt, but what took a few minutes at the edge our yard has taken a few decades, or perhaps centuries to create in government. We can’t curse the curb if we’ve run into it knowing our brakes had worn out.

In Federalist No. 10, James Madison argues that a large republic with diverse interests would prevent any single faction from dominating power. I have that hope today that the President’s excesses will be tempered by the influences of Congress, the courts, and public opinion. Public opinion may, sadly, be the weakest link as opposition is largely inarticulate, ad hominem, unfocused, and bitter. Further complicating matters is that our (I include myself in this human brain problem) sources of information and how we’ve been conditioned to consume them does little to educate us sensibly.

It rook Republicans far too long to learn the deceptive tricks of linguistic contortion and media manipulation, but the twisted rhetorical skills are now more fine-tuned across the political spectrum. Truth with a capital “T” is so camouflaged that few there are who can discern it. Intelligent debate in point-counterpoint fashion has digressed to the old Saturday Night Live routine where Dan Akroyd’s opening salvo in a debate with Jane Curtain begins “Jane, you ignorant slut”. (https://www.youtube.com/watch?v=c91XUyg9iWM) (As an historical note, SNL used to be a comedy show).

You and I are ultimately the guardrails of democracy (I know – democratic Constitutional Republic – spare me the lecture). We will fail in that role if we vote only with our rage, focus on personality or party before principle, and label others as haters to justify hating in return. We Americans may have lost our collective fear of power that marked the Revolution in favor of comfort. Protest wisely. 

 

Beyond Defunding: Abolition and Federalization

The terms “socialist” and “leftist” used to send shudders through most of the American population but given poll numbers of support for the current crop of Presidential candidates these terms are no longer offensive or frightening to about half of the adult population.

Let me say at the outset here that for policy analysis purposes an informed voter should try to be as objective as possible. The ideological divide in our current political climate seems to have boiled down to two major social theories, even though there are, of course, many other flavors of thought. Reasonable people can argue for less government as well as for more government. We can toss around various ideas about the economy and have different views on abortion. All of these topics are defined differently by our Presidential team candidates.

A leftist or socialist oriented criminal justice policy, as currently focused by the Harris/Walz team, is defined by leveling as opposed to equality. I use the word leveling as opposed to the rhetorically proffered label of equity as a refinement of the concept of equality because equality of opportunity and inherent value of personhood is different from the equity concept that says everyone should be the same, have the same, and be given the same. The fear of the right’s use of law enforcement is oppression in favor of the privileged class, the fear of the left and law enforcement is the brutality of enforcing censored speech and politically correct behavior.

Given this philosophical foundation, the idea is that anything that causes one person to be at a higher or lower level than another is inherently morally wrong and must be subject to social adjustment. Further, the fact that one person seems to have fared better than another, since equity is the natural and proper state of things, that person must somehow be the direct or indirect cause of the person of lesser economic privilege.

For example, if we find that the prison population does not reflect an equal representation of citizens, then it is an inequity to be corrected. How does that happen? Get rid of the police (let’s not forget that defunding rose from the concept of abolition of police completely), or at least weaken them. Develop prosecutors who are reluctant to prosecute. Reduce criminal penalties. Release people from prison. Eliminate bail for violent offenders. Eliminate harmful labels like “terrorist” and “illegals”, and broadly define “hate speech” to include anything that does not promote diversity and inclusion.

The essential flaw in such a system is the assumption that equity is the natural order of things. Competition and achieving goals, however low or high, is the natural order of things. Debate that proposition if you want to, but enforcing socialism necessarily leads to centralized power which is antithetical to our Constitutional democratic republic.

Since abolishing local police is an idea whose time has not come, and defunding has become unpopular and disastrous in many places, what is the next best thing to do for leftist ideology to degrade the influence of the oppressive local armed government agent? What if we demonstrated to the police that they face likely criminal prosecution in the course of their duties? What if we eliminated qualified immunity in complex, unique cases where split-second, unprecedented decisions are made? What if we made law enforcement so tainted and unappealing that fewer young people would choose that career? What if we dramatically reduced or eliminated pedestrian contacts, traffic contacts, and policing in schools where positive interactions between civilians and police happen thousands of times a day?

What if we had a Presidential candidate team who endorsed defunding the LAPD? Or a candidate who suggested that the Border Patrol is like the KKK and eliminating it might be good? What if we had a candidate who encouraged violent protests by raising funds to bail out violent suspects, endorsed reduced penalties for shoplifting and drug offenses, who claimed that more police has nothing to do with public safety, and chose a Governor who delayed National Guard resources for Minneapolis as it burned, and encouraged unlawful entry into the U.S.?

What if we had an administration that dangled offers of federal grant money to local police agencies but only if they followed the restrictions in Executive Order 14074 that were handed down when the George Floyd Justice in Policing Act failed (but will likely rise again if Harris is elected)? What if increasing restrictions of local law enforcement gradually but inevitably shifted police power to the federal government where rule by Executive Order reigned?

It seems clear that policies of a Harris Presidency would be a downward spiral from even the Biden administration. Under Biden the FBI, IRS, and now the Secret Service and TSA have all accumulated credible claims of political influence in their enforcement activities. The first argument against a Trump Presidency from a public safety perspective would be that he’s a felon and an insurrectionist and therefore too morally vacuous to speak on justice. It is doubtful that his felony conviction will stand up to an appeal, as we see the other cases piled on him unraveling, and the insurrection claim hasn’t been sustained. Neither of those arguments address what policies would be in place during a second term. Whether it seems hypocritical or not, he is demonstrably pro-law enforcement.

 

 

Being Your Own First Responder

 Being Your Own First Responder

JFShults

When seconds count, the police will be there in minutes, goes the old funny/not funny saying. While police officers are fully ready to respond to calls, as a profession we pay little attention to helping people prepare for events that prompt that 911 call.

Using the emergency medical response model we note that there is wide advocacy for self-care with first aid and CPR training and other educational opportunities. Aside from reasonably robust crime-prevention efforts, few police agencies offer advice on dealing with threats that citizens may face in public or at home.

Emergency service communication personnel would be a good source for material and what citizens should know when calling 911. Citizens in crisis can’t be expected to always be level-headed on the worst day of their lives, but knowing something about the system can help them convey critical information more effectively. Callers won’t know unless peremptorily informed that services are on their way while the dispatcher is getting additional information from them. Critical seconds can be lost by callers arguing about the process.

Many citizens have not given much thought to their right to protect themselves. We obviously want them to avoid getting into legal trouble, but they have a right and responsibility to know what the law is in their jurisdiction regarding the use of force in self-defense. The same verbal de-escalation skills that we want police officers to know is good information for the citizen confronted with an angry person or one experiencing a mental health crisis or under the influence of an intoxicant. Helping citizens understand their rights, responsibilities, and liability under each jurisdiction’s prevailing statutes would be a great public service.

Overuse of 911 is problematic, but so is the number of times a call should have been made but wasn’t. Recognizing suspicious activity and reporting crime are important public safety skills. Citizens should not be reluctant to call 911 (or other non-emergency number) to help police agencies get a better picture of criminal activity. When citizens think they don’t want to bother the police or think they should call their insurance agent or Aunt Martha first, public safety suffers. Sadly, there are agencies that are so overwhelmed with priority calls that minor events add to the strain, but citizens should never be discouraged from calling anyway.

About 40% of homes have a gun in the house. There are nearly 23 million concealed carry permit holders, not counting the 44% of the population living in states where no permit is required, or open carry is mostly legal. The possession and use of a firearm carries with it great responsibility while providing a potentially life-saving tool properly utilized. Law enforcement can provide a useful resource in understanding the laws and best practices regarding firearms ownership.

Estimates vary on how frequently firearms are used in lawful self-defense depending on whether surveys count only fatal justifiable killing or include the mere presentation or threat of a firearm to stop an attack. The number could be in excess of 3 million times per year. Those who are against firearms ownership will cite murder and suicide statistics. Those concerns are good arguments for knowledge about safe firearm handling and storage, but no consolation to the car-jacking victim with no means of defense.

Traditional crime prevention efforts may suffer during police staffing shortages, but those efforts can pay dividends in the long run. Citizens can be encouraged to mark their property, take inventory, and install security hardware. Those efforts should be facilitated by local law enforcement, particularly in light of the increasing use of security cameras. Some areas offer homeowners the option of registering their cameras with their police department to expedite the discovery of evidence when crime hits their neighborhood.

Sir Robert Peel, the founder of London’s “bobbies”, famously stated that “The people are the police and the police are the people.” It has been a foundational principle often lost in modern policing. After all, it takes a village.

Evaluate Self Before Evaluating Uvalde

 As an academy and in-service instructor, I have noticed how often cadets and seasoned officers can divorce themselves from the reality of the experience of others. I remember specifically a colleague who was a firearms instructor conducting a range day that included some dash-cam videos of officers being assaulted. We watched a horrific replay of an officer on a traffic stop being brutally beaten in a blitz attack, then murdered before our eyes. The instructor’s comment was “She didn’t have the will to live”. I don’t know whether she had the mythical warrior mindset or not, but I do know I had stood in her shoes, in proximity to a traffic offender, and had been knocked unconscious on the pavement. Was it because I lacked the tactical knowledge or the will to live? Of course not. But I did put myself in a vulnerable position on that night on that stop, trying to deal with a carload of characters. By the grace of God and a backup officer, I was not killed. 

We imagine ourselves as our fictional heroes, making all the right moves in the glorious fog of battle because we’ve poked holes in paper targets and run through some scenarios at the shoot house. All good, but as anyone who had been the target of someone actively trying to make you die can testify, training is vital, but reality is terrifying. Officers who should be moving tactically sometimes look like a squirrel in the road not sure which direction to go. I remember asking the occupant I had arrested after a pursuit and crash what happened. He replied that he wasn’t sure but all of the sudden this lady cop was yelling at him to get out of the car. We had no women on duty that night, so apparently, my voice went up a few octaves under stress.

Experiencing shock and pain is not pretty. Indecision is awkward. Obeying orders that are bad ideas is cognitively torturous. Wanting to charge in is natural for most cops because we’re used to being independent decision-makers, but we also are trained to coordinate when in teams and follow the chain of command. Who wants to pick up the dropped battle flag unless we know the platoon will follow us? Self-doubt under duress sometimes masquerades as self-assessment. One is unhelpful, the other essential. So, before we join the chorus of condemnation, let’s humble ourselves for a minute, and put our feet in the boots of the officers that day.

The interim legislative report wisely states: “Based on the experiences of past mass-shooting events, we understand some aspects of these interim findings may be disputed or disproven in the future.” We also know that if something new and positive eventually surfaces it will not see the light of day in the media. If some new damning information arises, it will be in the mouths of every network anchor.

Would police leaders who respond and advance toward shots fired always have the immediate thought of getting out of there and setting up a command post? There’s always criticism of chiefs who forget that they are still cops. What about the cops that forget they are chiefs? I’m certain that among the dozens and dozens of officers present, the vast majority were willing to march into the danger zone and die for the kids. But at what point does heroism become strategically foolish? At what point is survival to continue the mission more important than proving you care enough to generate a grand police funeral?

With the unfixed locks and the lax adherence to routine safety policy and confusion of multiple crimes being reported and the failure of radios and alerts, can we crush that last domino that fell in the series and think we’ve addressed the tragedy enough that we can walk away with confidence saying “things would have been different if I’d been there”? I’m not an apologist for what happened or should have happened on May 24th at Robb Elementary, but context here is critical.

Should we analyze the hell out of this thing? There is no question that we must. The dead deserve it. The community deserves it. The cops deserve it. Every nervous teacher and scared student in the country deserves it. But let’s do this with humility. If you haven’t read the latest evidence and reports from credible investigative bodies, then you are relying on the same media you criticize for the false narratives about policing that are so pervasive. Maybe no comment until you know as much as you can. No eye rolling, no shoot-from-the-hip second-guessing, no denial that you might have done the same thing in the same circumstances. The tragic deficiencies overshadow the notion that there were heroes on that day, but there were many.

Welcome Back to the Constitution

 Welcome Back to the Constitution

Whether we agree or not on recent U. S. Supreme Court (SCOTUS) decisions, one thing seems to be certain – the majority of Justices are putting the brakes on MSU (making stuff up). Hot button issues like abortion, guns, and police conduct are being viewed through the lens of what the Constitution says instead of what judges and politicians want it to say.

Without commenting on the merits of any of the case decisions, the trend toward originalism – interpreting the Constitution in the context of the authors’ intent – does seem to be gaining preeminence in this season’s SCOTUS opinions.

The Supreme Court is often accused of being politicized and the truth of the matter is that it has always been so. The recent but quickly discarded idea of adding to the number of justices so that Biden could make additional appointments of presumably liberal members. Until settling on the number nine for the court in 1869 there were several changes and attempts to change from the original number of six Justices at the Court’s invention in 1790. The notorious effort by President Franklin Roosevelt to “pack the court” after several of his New Deal plans were ruled unconstitutional was unsuccessful. Roosevelt did, however, due to his long Presidential tenure, end up choosing eight of the nine justices by the end of his term.

With lifetime appointments and no history of any Justice being impeached, the consistency of the Supreme Court’s power has been proven through the years. The process of selecting what cases get to be heard at this highest level provides the opportunity for the Court to decide what issues will be addressed. Earl Warren, serving as Chief Justice from 1953 to 1969, was a notable activist in selecting cases that had a tremendous impact on the civil rights movement of the era, including many landmark cases in criminal justice including granting lawyers to poor defendants, requiring a rights warning before police interrogations, allowing stop and frisk searches, extended fourth amendment requirements to state and local law enforcement, expanded availability of federal lawsuits against police, restricted the use of deadly force, and others.

SCOTUS 2022 has determined that the 2nd amendment prohibits the restrictive New York requirements to obtain a handgun, the regulations for which were intentionally cumbersome to limit the availability of concealed weapons permits. The decision relied on a broad reading of the right to bear arms in an originalist sense and cast a shadow on the gun control advocacy statutes and regulations in local legislative bodies. The majority of states have loosed concealed carry restrictions, and many have eliminated the need to obtain a permit in “Constitutional carry” states. In contrast, many local governments have attempted to enact restrictions within their boundaries.

In a win for effective law enforcement, the Court has recently upheld cases that maintain the concept of qualified immunity. While the doctrine is one that was made by court rulings when it comes to use of force its definitions rely on the 4th amendment understanding of reasonableness, the standard that has prevailed rather than a standard for perfection and prognostication.

The overturning of Roe v. Wade indicates another turn toward the Constitution’s framers for interpreting what the document means. Again, regardless of one’s opinion about the issue of abortion, critics of the decision have long held that intense scrutiny of the Constitution finds no explicit right to any medical procedure. Had the Justices wanted to make a statement on moral or scientific grounds, they would have looked at the “life, liberty, and pursuit of happiness” rights in our founding documents which inform originalism interpretation. The original Roe case found an unspoken right to privacy which the Court then extended to medical decisions. The right to privacy, like other implied rights that had no ink in the original documents, has long been recognized, but the link to abortion laws, says today’s SCOTUS, was too weak to be legitimate.

The ruling does not prohibit abortion, as is being portrayed by many observers, but rather says that it, as with all matters not covered in the U.S. Constitution and left to the 10th amendment, is a matter left to the states to regulate or not as they see fit.

The good news for the citizenry, whether these decisions are celebrated or decried, is that there is one governmental body that remains mostly shielded against the knee-jerk politics of the day. Having at least one branch of the government not subject to the fickle winds of opinion polls is a good thing.