The big question in each controversial encounter with the police is whether their actions are legal or illegal. Here is the perspective of a former police officer on such incidents.
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Coming on the heels of COVID-19 virus fears and associated lockdowns, people’s sensibilities were already frayed. So much so that protests occurred in hundreds of cities, large and small, throughout the nation. Pundits and politicians have almost universally supported the protesters. No one on record has even attempted to excuse or justify this malicious act by what is supposed to be a “peace officer.” Indeed, as a former officer myself, I can guarantee you that they are not supportive of a rogue cop who has put so many other officers’ lives in jeopardy.
The death of George Floyd in Minneapolis was a gruesome sight to behold. It was difficult to watch the video of a man slowly being deprived of breath. He died before our eyes. This shocked the conscience of the nation.
Nightly protests continued for more than two weeks after the incident. These quickly led to damaging and burning buildings and vehicles. This led to looting and rioting. Later, calls to “defund the police” coupled with plans to “reform” the police disciplinary process and legal system gained momentum. All of this because a police officer did what is impossible to overlook or to even rationally explain.
In his article “The Inevitable Long, Hot Summer,” Matthew Walther described the “curiously relaxed face” of the officer: “Intoxicated, but not with authority; a child who smashes a bird’s nest or stomps upon a turtle dove does not have authority; but he has power, brutally and thoughtlessly wielded for its own sake” (The Week).
This description aptly describes my feelings when I saw the video. These incidents speak differently to me than to most. Fatalities involving unarmed black men and white police officers fuel an almost immediate reflective response. They strike at the core of our political and racial divide. They are tragic, destructive and predictably divisive.
There is little dispute as to the illegal nature of the officer’s conduct. This is what makes the widespread damage and looting harder to reconcile. Longstanding resentment between black communities and the police is always simmering just beneath the surface, ready to ignite as acts of rage.
The depth and the breadth of this anger is palpable. I felt it over 30 years ago when I was on the Chicago police force. I know it is more pronounced now. Having served in one of the top tactical units in the nation, I have experienced thousands of similar encounters. These were sometimes fueled by suspicion and even resentment. The elements of a street stop are hard to describe as they can be unpredictable—and incredibly dangerous.
After becoming a lawyer, I reviewed and assessed disciplinary cases for both the police department and for police unions. This gave me another vantage point. Seeing how department policy, the law, and a principle known as the Use of Force Model—which is used by law enforcement to guide encounters with citizens—all intersect is as fascinating as it is dynamic.
Although I know my analysis will not bridge our increasingly vast chasm as a nation, this article aims to provide insight to those readers looking to make sense of police-citizen encounters.
Despite all the rhetoric and slogan-based “analysis,” the only real question in each controversial encounter with the police is whether it is illegal or legal.
Any fair-minded person should be driven by this question. Granted, some argue that policy and legal changes ought to be made to what is currently legal to better protect citizens. We will address this later. For now, since most everyone sees these incidents from the perspective of the citizen, I will endeavor to describe it from the perspective of the police officer.
Initially, an obvious baseline point must be expressed. The very nature of the job carries with it the power of life and death, freedom or prison. Discretion to make split-second, momentous, life-altering decisions are inherent. This can be hard to manage.
There is something about carrying a badge, a gun, and having the authority of government that can be intoxicating—including fostering tendencies to be outright abusive. To be clear, my understanding of human nature is that all people can be swayed by power. The adage “power corrupts, and absolute power corrupts absolutely” is appropriately relevant. This is not to infer that police officers are inherently bad or abusive.
Indeed, I think the opposite is true. Having worked with and taught literally thousands of police officers, my conclusion is they are caring, service-oriented people. Many die in the line of duty. Most go to work each day with the possibility of being killed as part of their “service” to their profession or their community.
During my career in law enforcement, I often marveled at fellow police recruits who truly thought they could “save the world.” There was an idealism and innocence that was both surreal and wonderful. Of course, no cop truly believed he or she could change the world, yet they thought they could positively affect the lives of the communities and the city they served. Sadly, they always failed. This was not because they were failures but because the task was too great!
Fast-forward to 2020. Coming off the coronavirus quarantines, where police officers were asked to enforce lockdowns and social distancing—including being ridiculed for citing a father playing catch with his young daughter in an otherwise empty ball field—we immediately transitioned into protests, looting and riots surrounding Floyd’s death. These head-spinning extremes are now the “job” of the police.
To be clear, this is not intended to justify the officer’s actions in the Floyd case. My intent is to reach higher. To paint a larger picture. The almost unique circumstance that resulted in Floyd’s death is not defendable—nor particularly instructive. Wrong is wrong. He should face legal consequences for his actions.
The larger—and more common—situation is when officers use force that is closely associated with the Use of Force Model. This model attempts to categorize the changing dynamics of citizen-police encounters into a legally acceptable framework.
Let’s start with the obvious: the law does not enforce itself. Laws written on paper are powerful, yet they are worthless unless people are willing and able to enforce them. Words, when applied in particular fact patterns, called “elements,” are what constitute laws. This is what is often referred to as the “letter of the law.” Outside the words are another crucial factor. This is called discretion.
By the very nature of their job, police have substantial levels of discretion. This ranges from the decision to issue a traffic citation to the decision to pull the trigger. Officers are required to act within the letter of the law, yet they are afforded discretion in how or whether they enforce the law. Discretion is both deep and wide. It can be applied to the most routine tasks to the most consequential acts. Discretion can be construed as the “spirit of the law.”
Let’s acknowledge another basic fact: The dynamics of a street encounter can be difficult to control. Relevant factors abound.
Probably the two most relevant are the skills of the officer and the willingness of citizens to cooperate. These factors are magnified—and intensified when guns are involved. Having recovered hundreds of guns in my police career, I can attest that every case involved a degree of stress. Sometimes more than others. Experienced officers may engender less stress simply because they have been “conditioned” to life-threatening situations. This can be analogous to a well-worn combat veteran who is no longer afraid of battle. This is not to say policing is like war. But potentially dying by gunfire on the streets of a violent city—can feel like war!
Whether or not you accept this analogy, let’s agree that more experienced officers also typically develop more skills to effectively manage potentially dangerous encounters. Consequently, stress levels can vary greatly based on experience and skills. Greater stress often results in fearful and inappropriate actions.
However experienced and skilled, every encounter has an unknown variable: How will the civilian suspect respond? In this sense, an otherwise “routine” street stop can turn ugly—even deadly. Since the law allows police officers to use slightly more force than the civilian, the non-police individual typically drives the outcome of the encounter. Citizens can choose to cooperate with the officers, or they can resist, or even turn into the aggressor.
Such choices and alternatives are framed within Use of Force Models used by police departments. It is beyond the scope of this article to go any deeper but suffice to say that the police officer is legally required to adhere to the parameters contained in the law. The application of the law is designed to allow the officer to use proportionally more force than the suspect. When the suspect is under control, all force must immediately cease.
In every controversial case leading up to the Floyd killing, the suspect did not cooperate with police. Some level of resistance or even aggression was present. This is not to say that the deaths of these suspects were conclusively legally proper. Yet the resistance and aggression from a suspect can generate higher levels of force by the police. Once the dynamics of the incident commence, emotion and adrenaline kick in. These can be hard to control—though police officers are legally required to exert controls consistent with the Use of Force Model.
It is undisputed, but largely ignored, that Floyd exhibited both resistance and some level of aggression prior to his death. What is crucial is that the application of force is only appropriate while resistance and aggression is being demonstrated. Force tactics or responses that may have been legally justified earlier in the encounter must cease when the suspect’s resistance or aggression ceases. This is where the almost nine-minute, knee-to-the-neck application of force was well beyond the parameters allowed in the force model.
At some point during this nine-minute period, the officer’s actions transformed from legitimate use of force to excessive force to murder. This is the legal analysis. It is how the letter of the law conforms to the Use of Force Model. Ironically, the law also provides a remedy—criminal prosecution, which has been instituted against the offending officer.
With these variables in mind, and since many of the controversial police use-of-force cases involve discharging weapons, let’s focus on the presence of guns.
I have encountered numerous suspects with a handgun in their hand, or in their pocket or waistband. To say that these are stressful encounters is an understatement. Recovering guns from vehicles and homes can also be stressful, yet these encounters typically manifest themselves differently.
There is a huge difference between an officer recovering a weapon from the body of an individual, particularly when the weapon is in their hand, as compared to recovering weapons from a vehicle or a home. One obvious difference is the immediacy of the threat. The threat in a vehicle or home search typically occurs before any weapon is recovered. Of course, the stressors go to the possibility of the weapon being used against the officer before the situation is under control.
Now consider the Use of Force Model related to an individual carrying a weapon. Without delving too deeply into these details—and depending upon the specific factual circumstances—encountering someone with a weapon in their possession, particularly in their hand, the model would typically allow the officer to discharge his or her weapon. Having experienced dozens of these without ever discharging my weapon, the key distinction is that the letter of the law supports use of deadly force, while the spirit of the law may not. Let me explain.
The legal statutes typically allow an officer to use deadly force when he/she reasonably believes great bodily harm or death is imminent. For example, when an individual has a gun in their possession an officer can construe that the situation allows for the application of deadly force.
Making this even more dynamic, what constitutes “reasonable belief” in these encounters is based on what a reasonable officer under these circumstances would believe—and what the particular officer subjectively believed.
One does not need to be a constitutional attorney to see the complexities of applying this standard to such encounters. The heightened stress within split seconds enveloped by the immediacy of death makes for extraordinarily complex decisions. These are the ultimate discretionary decisions officers must make.
Making a conscious choice to die or to kill is what is really at stake. Think of yourself in this situation. Can you see the dilemma officers are faced with?
Such decisions are some of the most impactful officers ever make—one loaded with violent implications that we have seen play out on the streets of our cities. Of course, these incidents resonate throughout society, including media, political and policing circles. Cops are paying attention.
As demands to “defund the police” and institute reforms are made, the outcome of these will drive the response from individual police officers. Recall the “Ferguson Effect” stemming from the Michael Brown killing in 2014. While there is some controversy even if this “effect” is real, in January 2017, USA Today reported that 72 percent of U.S. cops are reluctant to make street stops. This is consistent with my experience.
As we conclude the analysis of how use of force cases are assessed, we need to weigh in what the future portends. Reforms—and defunding—aside, the real issue here is how citizens and police interact. The law and use-of-force protocols govern these encounters.
With any changes made to these protocols or to the legal protections afforded officers, the principle of cause and effect will come into play. If restrictions are too broadly applied, human nature will reveal its inevitable ugly head. Two things will occur: Police will pull back and advantage takers will stand up. We will not be pleased with the result.
Look at Baltimore, Maryland. Since police pulled back following Freddie Gray’s death in 2015, homicides have been consistently over 300 each year. In 2019, it recorded its worst homicide count on record with 348 homicides. This is a microcosm of what could happen throughout the country. When police do not proactively enforce the law, those seeking to take advantage of the vacuum will rise up and multiply. Nature abhors a vacuum. Something will prevail. This tension between order and lawlessness is bound to play out.
In the end, it is the spirit of lawlessness that is driving this dynamic. Lawlessness is unhinged from law and order.
Remember, the law does not enforce itself. People must be willing to put themselves in potentially dangerous circumstances to enforce law and maintain order. Conversely, reduced or only reactive law enforcement will result in greater levels of crime. It is a classic cause-and-effect equation. Many deny this reality. They are wrong!
For those looking for simple solutions based on slogans, please be assured they do not exist. My hope is this article makes this much clearer. The sooner we realize what life is like without law, the better.
In the meantime, know that dangerous times lie ahead.