In the current atmosphere of demoralizing and defunding American law enforcement, the Supreme Court of the United States will soon be hearing an appeal of a Tenth Circuit ruling in Bond v. City of Tahlequah. A ruling that could have dangerous consequences for both police officers and the citizens they serve.
The National Police Association recently filed an amicus (“friend of the court”) brief with the United States Supreme Court arguing that SCOTUS should overturn the judge-made rule used in the Bond decision. A decision that potentially thrusts law enforcement officers into murky territory when making use of force decisions. In an oddly disturbing decision, the court decided that the officers’ use of force should be analyzed from the perspective of whether the officer did anything to instigate or exacerbate the situation leading to the use of force by the officer.
In other words, in this case just the officers’ act of engaging the suspect was said by the court to have provoked the suspect into resisting and threatening them with deadly force. The suspect was the ex-husband of the 911 caller, who was so frightened that she called the police, fearing for her own safety. The ex-husband attacked the responding officers with a hammer after they requested numerous times that he drop it. It seems like a pretty cut and dried case of a deadly threat being met with deadly force except in the minds of some judges. The Tenth Circuit seems bent on making police use of force an even a higher liability than it already is for law enforcement.
To understand this better, realize that on every call each officer has to deal with highly ambiguous situations every day. Some are low level risk but many have the potential to be deadly to any officer or citizen and that danger often occurs almost instantaneously. The level of actual threat faced by a police officer is clear only in retrospect. It is only once a critical situation is resolved that the actual threat can then be examined, at length, by experts and the courts. The officer, on the other hand, had to enter the situation without knowing the “actual” threat from the “possible” threats! On every call, every police officer’s mind is racing with possible outcomes and intensely trying to maintain a situational awareness for ALL the possible threats, and the best options for dealing with them.
Hindsight eliminates all the variables and makes the outcome seem obvious in the eyes of the critics and the courts. Saying an officer should have done this or that to mitigate the suspect’s actions is an exercise in fantasy. The officer in any situation involving a human being is dealing with one of the most unpredictable creatures on earth. To advance or retreat, enter a garage or not, attempt to use a TASER or not, are all only certain in retrospect. The vast majority of situations in an officer’s career are resolved without force regardless of the actions the officer takes. It is the suspect who decides the level of force and violence the situation demands. The court standards for the last few decades have been, “did the officer use a reasonable level of force based on all the facts presented to that officer?” In other words, “was that force used reasonable based on what the officer believed was happening at the time of the incident?” The actions and motivation of the officer prior to the force used have never been the issue since the officer couldn’t predict the actions of the subject involved and had to act based on his or her best judgment.
Too often, courts, politicians, and journalists seem to think police work is a science, and we can engineer our responses to a threat, when, in fact, policing is an art and each officer develops an artist’s skill at adapting to a constantly changing environment of challenges and threats. If a person decides to become an assailant the options for the assaulted officer instantly become limited based on the threats the officer faces. Failure to respond properly not only has the liability of lawsuits, prosecution, and discipline, but also the possibility of injury or death!
As can be imagined, the situations that often cause death or serious injury to officers, like domestic disturbance calls, such as the one faced by the officers in this case, are rife with stress and ambiguity. Will the suspect comply, attack, resist, be intoxicated, aggressive, agreeable, or gone? Every officer has been trained for such calls and responses, but soon learns on the street no one formula or tactic solves the complex situations created in the dynamic situations they find.
Ultimately, if the Bond decision is upheld, traditional police work will become almost impossible. If law enforcement no longer operates under the “reasonable officer standard” police officers will become little more than report takers, forced to merely document the aftermath of violence rather than insert themselves into the middle of it to save lives and property. To say that an officer should approach or not, should enter or not, should arrest or not, are questions only answered in hindsight and judging an officer in error for not knowing the unknowable is absurd on its face. We cannot know what someone else is thinking, planning, or feeling and if an officer acts reasonably is a perfect standard for an imperfect world.
The very presence of a police can make the intensity of a situation greater, and a large percentage of those arrested are often impaired, distressed, or dealing with mental health issues, adding to the liability and risk to all involved. The law enforcement officer is always balancing the risks involved for everyone, with a priority to keep themselves safe so they can continue to protect all of those involved. The motive, thoughts, or intentions of those being dealt with in an enforcement situation are beyond knowing and we can only hope the Supreme Court will recognize that fact and reverse the Tenth Circuit Court’s decision.
If this ruling is allowed to stand, as a police trainer, I cannot fathom how to instruct police officers to react to the court’s demand to anticipate the motive, emotions, intent, or thoughts of subjects they are dealing with every day. Police work is often a series of guesses and hunches based on training and experience; we can’t expect officers to correctly anticipate a subject’s every move and thought. If SCOTUS decides to place the responsibility of “20/20 hindsight” squarely on the shoulders of American law enforcement, it will be crime victims who will ultimately pay the greatest price.
About the author:
Former police lieutenant Dave Smith is an internationally known speaker, writer and law enforcement expert. Dave completed his college degree at the University of Arizona while fighting forest fires with the “Coconino Hot Shots” and then began his police career with the Tucson Police Department. In 1978 he joined the Arizona Department of Public Safety, holding positions in Patrol, SWAT, Narcotics, Training and Management. In 1980 he developed the popular “JD Buck Savage” video training series, was the lead instructor for the Calibre Press “Street Survival” seminar from 1983 to 1985, and was instrumental in developing Calibre’s timeless “Tactical Edge” officer survival book. Dave holds numerous instructor certifications in firearms, defensive tactics, and human performance and is a proven expert witness and consultant.
In 1989, Dave joined the Law Enforcement Television Network (LETN), developing and hosting cutting-edge police, security and public safety training as its Director of Education and was the general manager of Calibre Press until January of 2002. Dave continued to instruct the “Street Survival” seminar through 2012 as its senior instructor, managing the most comprehensive update to the seminar since 2003. Dave has authored hundreds of articles for publications including Police Chief, Law and Order, The Trainer, Police Marksman, the Calibre Press Newsline, PoliceOne, Officer.com, Law Officer and POLICE magazine.
Dave was the Director of Video Training for the online Police One Academy and both produced and hosted PoliceOne’s award winning “Roll Call Reality Training” segments. He currently trains through Arizona-based “Winning Mind LLC,” is a regular columnist for POLICE magazine, the author of the popular book In My Sights and is a frequent media analyst concerning law enforcement issues. Dave can be reached via his website at www.jdbucksavage.com or on his Facebook fan page as “JD Buck Savage.”
The National Police Association is represented by Robert S. Lafferrandre of Pierce Couch Hendrickson Baysinger & Green, L.L.P., of Oklahoma City, Oklahoma. The case is Bond v. City of Tahlequah, No. 20-1668 before the United States Supreme Court. The NPA’s amicus brief can be read here.