In the continuing atmosphere of vilifying and “defunding” American law enforcement, it was heartening to see the Supreme Court of the United States reverse the 10th Circuit Court ruling in Bond v. City of Tahlequah; a ruling that could have had dangerous consequences for both police officers and the citizens they serve.
The National Police Association had filed an amicus (“friend of the court”) brief with the United States Supreme Court asking that SCOTUS overturn the judge-made rule used in the Bond decision. The 10th Circuit’s decision in Bond was largely self-referential, deciding 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. This would have created a whole new standard for evaluating an officer’s use of force to include the unpredictable escalation of force by a subject to counter an officer’s actions.
SCOTUS reiterated that none of the previous decisions relied upon by the Court of Appeals came close to establishing that the officers in the Bond case acted unlawfully. We cannot ask police officers to know the unknowable, especially when making split second use of force decisions, and SCOTUS recognized that.
In other words, in this case just the officers’ act of engaging the suspect was said by the 10th Circuit court to have provoked the suspect into resisting and threatening the officers 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. She told the 911 dispatcher “it’s going to get ugly real quick.” 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.
The Tenth Circuit often seems bent on making police use of force an even a higher liability than it already is for law enforcement, and in this case SCOTUS pushed back, stating “On this record, the officers plainly did not violate any clearly established law.” SCOTUS also reminded lower courts “not to define clearly established law at too high a level of generality.” Let’s remember, on every call each police officer has to deal with highly ambiguous situations. 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 the 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. The 10th Circuit court seemed to place the responsibility of “20/20 hindsight” squarely on the shoulders of American law enforcement.
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 law suits, 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 lower court’s decision had been upheld traditional police work would have become almost impossible. If law enforcement could no longer operate under the “reasonable officer standard” police officers would have 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 officer 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, a fact that SCOTUS recognized in the Bond decision. SCOTUS also recognized that the officers in this case should not be held civilly liable for acting “reasonably” and within the parameters of policy and training, specifically addressing the officers’ qualified immunity protections.
As a police trainer, this case also reaffirms the need for relevant and frequent use of force training for police officers. This comes at a time when “hard” skills training is being diminished in many agencies. Training police officers to deescalate high tension situations or deal more effectively with the mentally ill is incredibly important but not to the detriment of the low frequency/high liability skills training that help keep police officers (and the public) safe. The “Defund the Police” movement has reduced police training budgets at a time when American law enforcement is dealing with a substantial rise in violent crime nationwide and a 150% rise in ambush attacks on police officers. This case reaffirms that we cannot hold police officers accountable for a suspect’s decision to escalate force to counter an officer’s actions to try to keep the public and themselves safe!
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. The opinion can be read here.
