Lawyers and Word Games - Are the police playing the game right?

 

Fictional Attorney: Officer, in your report you described some behavior of Mr. Defendant as “pre-attack indicators” is that correct?

Fictional Officer: Yes

FA: Can you help me understand the phrase “pre-attack?”

FO: Yes *(note the literal and simple answer – good technique!)

FA: Would you please do so?

FO: It means before an attack.

FA: Thank you. Is it true that you acted on those indicators?

FO: That’s correct.

FA: So you assumed you were going to be attacked even though you hadn’t yet been attacked.

FO: I believed there was a high probability.

FA: So it was speculation on your part that led you to engage in the use of force against my client

FO: *flustered*

            Now I don’t know if this interrogation has ever happened on the stand, but I could see a jury member being influenced by the specter of pre-emptive aggression on the officer’s part. My question then, is whether our phrase “pre-attack indicators” is in our best interests, especially since Dr. Travis Yates’ important work in the field of early threat recognition gains more traction. Yates is applying research to what officers often, through experience or intuition, already know (or should know) about sensing when an attack or escape is about to happen (He also uses various other phrases than PAI (Pre-attack Indicators – we have to have an acronym, don’t we?) in his curriculum. We all know that explaining our actions when we must coerce compliance cannot rely on “I just knew it” “It’s been my experience” “I just had a feeling” and “It was suspicion”. We are now gaining leverage in articulating this to juries, prosecutors, and the public.

An article I wrote for Police1 back in 2013 (Before Yates’ seminal work) addressed the issue of language describing what we all call can be found in the archives here: https://www.police1.com/officer-safety/articles/the-attack-cascade-engaging-an-offender-before-its-too-late-nQcMidvyGh7xgRWa/

I offered an alternate phrase which, on reflection, I no longer like but the gist of it is that we should consider those PAIs as PART OF THE ATTACK OR ESCAPE and not “pre” anything. The old Use of Force Continuum (see my archived article on that: https://www.police1.com/police-training/articles/contextual-compliance-tool-kit-Wvy6q2HzKZ44VmXg/ concentrated on an officers response to a suspect’s behavior, but was never clear to me what those specific  behaviors, short of bringing a weapon to bear, were going to fly in front of a jury or internal review. With Dr. Yates research we can give better voice to those behaviors, but I still maintain we should retire the PAI verbiage.

I have similar concerns about the term “Defensive Tactics” and “De-Escalation”.

FA: Officer you are training in de-escalation is that correct?

FO: Yes

FA: Why did you shoot my client instead of de-escalating the situation?

FO: I did de-escalate the situation by shooting his @ss. (not a recommended response on the witness stand, but the principle is valid.

Again – we dig into the archives on that subject with my article you can read here: https://calibrepress.com/2023/09/reframing-de-escalation/

From which I quote: “Although not considered de-escalation in common parlance the use of force, including deadly force is, in fact, de-escalation if it stops the aggressiveness of a threat. It is at the top of the de-escalation continuum, reminiscent of the classic use of force continuum. To say that the use of force is a failure of de-escalation is not accurate if such use stops the escalating or continuing behavior of a threat.”

FA: Officer you attended a section of the police academy called “Defensive Tactics”, did you not?

FO: (Avoiding a yes or no on the tricky grammatical pretzel) I did

FA: And you continued training throughout your career with Defensive Tactics courses?

FO: Correct

FA: When you tackled my client was he attacking you?

FO: (Waits for objection………none is forthcoming) At the moment I made physical contact he was not actively attacking me.

FA: Answer yes or no please.

FO: No.

FA: Then you were not using your training in Defensive Tactics, since you were the aggressor?

Let me think on some new labels for stuff we know and do. Any suggestions?

Truthifixion

Jesus said "I am the Way, the Truth, and the Life" (caps mine). At the considerable risk of dragging Jesus into a secular debate - a tactic I despise - He is the ultimate authority on Truth (caps mine), so a look at his life is instructive. He was murdered for speaking Truth and being the very embodiment of Truth. Why such a violent reaction to the reality of the existence of Truth - the very question the Roman governor Pontius Pilate asked during Jesus' trial? I believe it was that Truth threatens. The Romans were threatened by the perceived disruption of the peace of Roman power. The Jewish establishment was threatened by a loss of influence and a potential shift in their ideology and power. The Roman establishment reacting to that threat was a hypocritical misuse of the very order their law had brought about, with a legal proceeding that was decidedly illegal in its application, being a perverted format that not only allowed them to claim that Jesus had due process, but whose end had to be ensured by conspiracy (bribes to the guards at the tomb).

The rational arguments of the some of the ruling Jews (who ruled only the Jews and the Temple) were ignored by the majority, who leveraged the corruption of the Roman legal system by bribing Judas, and perverting Jesus' statements of spiritual Truth to make Jesus seem like an anti-government rebel.

The crowd demanding Jesus' crucifixion in the light of Pontius Pilate's offer of clemency may have included some who, just days earlier, had proclaimed Jesus to be worthy of praise and honor. What was their motivation other than to affiliate with the Jewish leaders' account and label him in league with the devil and stay in the "in" group?

Using Jesus as a discussion starting point is not a theological treatise here, just an illustration of several challenges we all have in defining, discerning, and discovering the truth of a matter. (And to bolster my use of the word truthifixion that I made up - truth crucified and juxtoposed with a word similar to "fiction". I suggest inserting the little copyright symbol if you use my word. It deserves to be repeated and I want credit.) But I digress. The main point of my lecture is that as much as we seek the truth of a matter, we must use equal energy and brain cells to disbelieve. The probability that you're being deceived (as opposed to outright being lied to, although that, too) is much higher than the probability that what you think is true is actually the truth, the whole truth, and nothing but the truth. I hope that all of my police academy students remember Shults' First Law of Police Work: Don't trust anybody. I stand behind that statement.

Scientific findings back me up on this. I'm not going to cite my sources; that's between you and AI to discover, but surveys of beliefs correlated to news sources shows that opinions will differ depending on whether one consumes mostly broadcast, internet, or published information. I think we all know, and ignore, that different sources choose what "news" to report, what vocabulary to use, and what to editorialize. It's not so much that the medium of our messages are lying to us, but that we are lying to ourselves to believe what we ingest. 

The other science here is what happens in our brain when we hear or see information (I'm avoiding using the word "facts", which are often in dispute). We are wired such that negative information attracts our attention much more profoundly than neutral or positive information. The sky may be beautifully blue with delightful fluffy clouds, but our focus is on the ground to be sure that the stick on the sidewalk is not a venomous snake. News producers, bloggers, influencers, TikTokkers, and podcasters all want your attention - even this rant, which is being sent into the ether with low expectations - we all want clicks, affirmations, debate, rage, or whatever else can raise your blood pressure and activate your limbic system. We are all being played. No one monetizes media by telling stories of rescued puppies and monkeys reading to first graders and harpists volunteering at old folks' homes. 

Clearly, there are things going on in the world, near and far, that are disturbing and that demand our attention and perhaps some action in response. It is our response that must be carefully calculated beyond the mere venting of our frustrations. A review of the Serenity Prayer might be in order.

I am tempted to give a listicle of FIVE WAYS TO KNOW WHEN YOU'RE BEING MANIPULATED, NUMBER FOUR WILL BLOW YOU AWAY! If I did, I'd say 1) assume bias from any source, 2) insist on context for interpreting a narrative or video, 3) watch for hyperbole in vocabulary choice - connotation can be subtle, 4) recognize rage bait by your visceral reaction and recalibrate your response, 5) notice when persons are described by labels rather than objectively observable behavior. Let's not be naive about the motives of those who want to be the loudest voices. I'm whispering now.

When I was in charge of securing our campus housing, we tried to tell people to be careful when they swiped their key cards not to let some unauthorized person "tailgate" and come in without permission. We need to be careful about ideas tailgating our thoughts. We need filters and boundaries. Just because we agree with someone's claim or an idea in a meme doesn't give it permission to enter our brain's logic process (remember logic?) I took a class in college called Rhetoric, the original meaning of which is "the art of persuasion". We have now twisted that fine word to mean useless, biased speech. I'd love to see real rhetoric again. I have a dream.

Now, what do we do with the knowledge that we are what we eat and we eat a lot of junk (metaphor)? I dare not prescribe such a thing, since I doubt there is anything like a balanced meal (continuing to torture the metaphor) in the collection of information. I suppose that many readers (if there are many) have already ascribed my writing to be partisan. If you read this and day "yeah, but..." there's the evidence. I'd just say be careful what you feed your brain, balance it with healthy human connection, laughter, rest, and coffee. 

Training: Are We Kidding Ourselves?

More training! We need more training! I’ve heard it, and I’ve said it, and I believe it. But we have a big unanswered question in law enforcement regarding officer survival: Has our training saved lives over the past fifty years? The answer may be no, it has not. Hear me out. From a perusal of reasonably easily accessible data (i.e. Google) of police officers murdered from 1970 through the time of this writing, factored to a ratio per 100,000 officers, shows that the rate of officers murdered has decreased. In 1970 the rate was 22/100,000, 1980 was 28 (the highest and I don’t know why), 1985 was 17, 13 for 1990, 11 for ’95, 8 each for 2000 and 2005, 10 for ’10, then 6 for 2015, 2020, and projected 2025. Good news, right? But why the lower rates?

First, let’s cover some data problems, the first of which is the relative rarity of police as LODD murder victims. Yes, the stack of bodies is terrible – thousands over the years. But, considering the number of police officers and the number of contacts, calls, and dangerous situations they encounter, the incidence of dying by means of felonious attack is mercifully rare. That doesn’t diminish the tragedy nor the urgency to prevent those deaths, but from a math perspective, there are few consistent factors in these events that create predictability.

We can train on only relatively few certainties, if any, when it comes to violent encounters because each one is unique. A plaintiff’s attorney might ask “Were you trained for this situation?” The truest answer one can give is “not specifically this encounter”, because every event is unique. Even if the same scenario happened again the next day with no memory of the previous one, there are micro differences – what you ate, how you feel, the weather, a bystander, and on and on into that quantum mechanics “Many Worlds” theory that parallel universes exist branching with every possible outcome.

Another huge problem is that databases are hard to mine, especially when it comes to making relational associations. Even knowing how many cops there are in a given year is uncertain. Anomalies like 911, COVID, and multiple victim clusters like Lakewood, WA, Oklahoma City, Dallas, and WACO make averages meaningless. That leaves the casual researcher like me having to round up and average and guesstimate some numbers.

But here’s the bottom line: it is questionable that our changes in training have reduced that 1970 ratio of 22 per 100K officers to 2020 at 6 per 100k. Here are some changes that happened during this time span: better trauma care, body armor, cell phones, 911, population and officer to population ratios.

For example, trauma injury survival rates improved nearly 25% during the time frame we’re looking at, so of the 100 officers murdered in 1970, we could speculate that 25-30 of them would have survived given modern emergency care, bringing the murder rate closer to 15 or 17 per 100,000 officers, a number closer to the 1990s era.

Speaking of 1990s, only 25% of police agencies mandated the wearing of body armor then (the first “save” by body armor was late 1975).  By 2010, 92% of agencies mandated body armor. We can’t be exact in determining how many murders were prevented by body armor, but one study suggested 8 officers per year could be saved. An officer not wearing body armor is 76% more likely to die from a torso shot than a protected officer.

We have better communication and technology, and more police officers (despite recruiting woes) than those higher fatality years, as well as roughly 150 million more humans in the U.S. now than in 1970. How that plays into the stats – who knows?

While we are pretty good at counting murdered officers, we are terrible about counting wounded officers, and completely absent in measuring deadly encounters where there are no reportable injuries. That means we only know about when officers fail to survive, not how frequently they survive – which would be a better guide to planning training. (See the story of research when, to find out where to improve armor on military aircraft, they examined where anti-aircraft fire hit the planes that managed to return from combat. What they didn’t see is where the rounds hit the planes that were completely shot down which would truly have shown their vulnerability.)

Yes, fewer officers are dying from felony assault now than 50 years ago, but with all the supposed increase in the frequency and quality of training, isn’t it likely that more officer survival is from better trauma care, body armor, and equipment? Let’s keep training more and better, but it will be done in partial darkness until we get the data that we truly need to measure success.

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.