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?