PERFectly Wrong: Why LEO “leaders” need to stop apologizing for the use of force

On January 29, 2016, the Police Executive Research Forum (PERF) released a report in their Critical Issues in Policing Series entitled, “Use of Force: Taking Policing to a Higher Standard” The subtitle is “30 Guiding Principles.” If you have not read this paper, you should. If you are a LEO, related to a LEO, or a former LEO, you must read it. This paper is a shining example of what is wrong in the debate about the use of force by law enforcement in the United States- the proliferation of apologists.

Any analysis of this paper must first begin with an understanding of the identities of the authors. Any writing, speech, or expression should be critically assessed with an eye on both the motivations and the backgrounds of the authors. Failing to do so is why we have a body of inaccurate and asinine comments and social media posts proliferating our national discussion of the use of force by LEOs. If you know nothing about the laws surrounding the use of force, then your opinion is worth the effort you put into your research. If you are motivated by the lies perpetrated upon society about the use of deadly force by LEOs such as the entire “Hands Up Don’t Shoot” and shots in the back mantra that was definitively disproved by the Department of Justice Report on the OIS involving Officer Darren Wilson, then your opinions are suspect to say the least. Finally, if you are willing to condemn LEOs nationwide because a reporter asks you a question or shows you a statistic before you even look behind the data to verify it, then your opinions will change with the next strong wind and should be left to scatter in that medium. So, who is PERF?

According to its website, www.policeforum.org,
The Police Executive Research Forum (PERF) is an independent research organization that focuses on critical issues in policing.
. . .
PERF strives to advance professionalism in policing and to improve the delivery of police services through the exercise of strong national leadership; public debate of police and criminal justice issues; and research and policy development.
The description of the organization and its mission point out a few things. You can also read about their Founding Principles on the website:
We have joined together in the Police Executive Research Forum to share the challenges of leadership and to continue the professionalization of policing at all levels. The principles that guide PERF are that:
1. Research, experimentation, and exchange of ideas through public discussion and debate are paths for development of a professional body of knowledge about policing;
2. Substantial and purposeful academic study is a prerequisite for acquiring, understanding and adding to the body of knowledge of professional police management;
3. Maintenance of the highest standards of ethics and integrity is imperative to the improvement of policing;
4. The police must, within the limits of the law, be responsible and accountable to citizens as the ultimate source of police authority; and
5. The principles embodied in the Constitution are the foundation of policing.
Now let’s examine what they said in this paper, why it is out of touch with reality, and what they left out of their “30 Guiding Principles” that speaks volumes about their motivations.

Several of the “30 Guiding Principles” are not only generic, but also widely accepted. For example,
POLICY 1. The sanctity of human life should be at the heart of everything an agency does.

Who ever said that LEOs do not believe that? Certainly not anyone in law enforcement. Uninformed law enforcement critics who spout hatred toward LEOs consider that a basic premise of their beliefs, along with public statements that LEOs do not believe this. Tell that to the LEOs who risk their lives daily going into booby-trapped homes on drug raids, pulling people from burning wrecks on the interstate, or as we’ve seen lately, simply wearing a uniform and badge in public.

POLICY 10. Document use-of-force incidents, and review your data and enforcement practices to ensure that they are fair and non-discriminatory.

The final sentence of this section cautions against using “generic, ‘boilerplate’ language.” The longer I practice law, the more I am suspicious of anyone who uses the term “boilerplate.” This is a meaningless term often used by people who either cannot articulate what they are talking about to a sufficient degree to use specific words, or others who want to hide behind the term to avoid further scrutiny. I believe in this instance, both issues may be at play. Exactly what type of “generic” and “boilerplate” language are they referring to? The language of your state’s use of force statutes? When a LEO states she was in fear of her life because the subject posed a life-threatening or deadly threat, that is not “boilerplate” language-that is the truth. Further, that is the language that sets the standard for the use of a specific level of force. To refer to the use of those words as generic or boilerplate is at best disingenuous and at worst acting in furtherance of an anti-law enforcement agenda.
TRAINING AND TACTICS 16. Use Distance, Cover, and Time to replace outdated concepts such as the “21-foot rule” and “drawing a line in the sand.”

This has become the mantra of the uninformed regarding the use of deadly force when a LEO is facing an edged weapon. Further, this principle is based not in the theoretical realm, but instead in the science of action versus reaction. However, the “21-foot rule” probably is outdated as studies by Force Science indicate the distance should be 30 feet not 21. It is not promulgated by trainers as a “free fire zone” around a LEO. It is a training tool and a recognition of the point at which a person with an edged weapon becomes a deadly threat. I am disappointed that a group of law enforcement administrators do not know and understand that.

Perhaps the most concerning of the “30 Guiding Principles” is this:
POLICY 2. Departments should adopt policies that hold themselves to a higher standard than the legal requirements of Graham v. Connor.

First, this policy directly contradicts PERF’s fifth Guiding Principle, “The principles embodied in the Constitution are the foundation of policing.” Graham v. Connor was a landmark decision from the United States Supreme Court which interpreted the use of force by LEOs in the context of the Fourth Amendment to the United States Constitution. When PERF advocates that LEOs should hold themselves to a “higher standard than the legal requirements of Graham v. Connor” it presumes two things: there is a higher standard that will accomplish the legitimate goals of the use of force, and the standard set out by the United States Supreme Court is either inappropriate or insufficient.

While you may not agree with the opinions of a specific United States Supreme Court Justice, you must admit they know a little bit about the United States Constitution. Seven justices joined or concurred in the opinion that analyzed the use of force by LEOs. “Today we make explicit what was implicit in Garner ‘s analysis, and hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard…” 490 U.S. 386, 395. There can be no dispute that the USSC was interpreting and setting the standard for use of force by LEOs in the backdrop of the United States Constitution.

In that analysis, Graham set out several principles that underlie the fallacy of this PERF policy. I set them out lifted verbatim from the case without any editorial-as they should be used:
1. “Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’” against the countervailing governmental interests at stake.” 490 U.S. at 396
2. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 490 U.S. at 396
3. “With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” 490 U.S. at 396
4. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” 490 U.S. 396
5. “As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” 490 U.S. at 397
6. “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” 490 U.S. 397

These are the guidelines for the use and analysis of all levels of force by LEOs. To suggest that LEOs must “hold themselves to a higher standard” is not only the height of arrogance, but it ignores the fundamental basics of the use of force analysis.

The use of force analysis under Graham considered that three stakeholders are present in every encounter between a LEO and a citizen in which there some level of force is used. The first is the citizen who has a right to be free from “unreasonable” seizures. The second is the government as a stakeholder to ensure that the law is enforced with a recognition that to do so, LEOs must often use some degree of force. However, this PERF standard neglects to consider the third stakeholder in the analysis-the LEO. Nothing in Graham holds that a LEO must be subjected to any level of force by a citizen. In fact, no level of force, however slight, is appropriate against a LEO in the course of performing their sworn duties. This directly contradicts “POLICY 9. Prohibit use of deadly force against individuals who pose a danger only to themselves.” Did someone really write that believing that LEOs should place themselves at higher levels of risk than the department would sanction allowing a civilian to face?

The other problem with this analysis is squarely facing us in Policy #8 in this paper, “Shooting at vehicles must be strictly prohibited.” Aside from being patently naïve, this statement as a policy runs directly contrary to the holding in Graham which clearly accepts that LEOs find themselves in “rapidly evolving circumstances” and drafting policies that contain absolutes is to engage in a folly that places LEOs at risk. Worse, a policy that incorporates such nonsense only exposes LEOs to lawsuits and prosecution even though the USSC has stated clearly that policies do not dictate the appropriateness of force under the Fourth Amendment nor do they set the standard for liability. See City and County of San Francisco v. Sheehan, ___ U.S. ___, 135 S.Ct. 1765 (May 18, 2015).

The absurdity of this paper is further shown by “principles” that reportedly seem like novel ideas. For example, “POLICY 3. Police use of force must meet the test of proportionality” is implicit in the Graham analysis as is “POLICY 4. Adopt de-escalation as a formal agency policy.” Outright insulting is “POLICY 7. Respect the sanctity of life by promptly rendering first aid.” I have represented and known LEOs who have placed their lives in danger to save suspects. The inclusion of this statement is outright pandering to anti-law enforcement rhetoric.

There is simply not enough space to review each one of the points contained in the paper. The PERF committee forgot one essential truth and this indicates that they have lost touch with the reality of law enforcement. The lawful use of force does not look good on video. In an age of surveillance footage, dash cameras, cellphone video, and body cameras, this is an important fact that must remain at the forefront of this debate. In Policy 3 regarding proportionality, the paper states the following:

“In assessing whether a response is proportional, officers must ask themselves, ‘How would the general public view the action we took? Would they think it was appropriate to the entire situation and to the severity of the threat posed to me or to the public?’

The public, especially uninformed members of the public, will never understand some uses of force. They are also unlikely to understand that the longer a fight or struggle goes on, the more danger exists for the LEO. This statement in this PERF paper is perhaps the best proof that the committee was more concerned with placating anti-law enforcement special interest groups than creating reality-based recommendations. As Graham holds, “The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 490 U.S. at 396. Nor should it be judged or directed by concerns for what the public might think.

So what is absent from these expansive “30 Guiding Principles” you may ask? A recognition that law enforcement agencies and administrators, chiefs and sheriffs, as well as professors and politician members of PERF, have an obligation to ensure the safety of the LEOs they discuss in their meetings. All of the measures outlined in this latest paper are aimed outward toward the public using a lens forced upon law enforcement by many in the media spotlight who propel a clearly anti-law enforcement agenda.

In a one-year period, I provided use of force training to more than 2,000 LEOs from more than twenty-five states and several federal agencies. One thing is constant among the students-they are good people who want to survive to go home at night. Perhaps the PERF committee should focus on the violence being committed against our LEOs using all levels of force. The 2013 and 2014 LEOKA statistics show that about nine out of every one hundred LEOs were assaulted. The focus should be on educating the public and the media about the use of force by LEOs and telling people that they do not have a right to resist LEOs in the lawful performance of their duties. If PERF reduced the number of foot chases, struggles, fights, and determined assaults upon LEOs they would be making a difference.

LEOs at every rank level need to be proud of their work and loud about their efforts and successes. Take to social media and flood the space with positive stories about LEOs. Also take steps to protect yourself as allegations and criticism against LEOs is leading to a movement to prosecute LEOs more often even when they act lawfully. “Let a trial jury determine if the officer was correct in using deadly force”, has become a cry from many groups. Join the Fraternal Order of Police and sign up for the FOP Legal Defense Plan at www.foplegal.com. Educate the public about why certain actions are taken and attack the myths that permeate our news. You can turn the tide, and apparently you cannot trust PERF to do it for the profession.

Lance J. LoRusso is an attorney and former LEO. He practices law in Atlanta and responds to the scene of officer involved shootings (OIS). His book, When Cops Kill: the aftermath of a critical incident, explores an OIS from the moment of the last shot through the investigations, media inquiries, and living with having taken a life. All profits from the book support law enforcement charities like www.huntingforheroes.org. Go to www.lorussolawfirm.com or www.lancelorussobooks.com for more information. Nothing contained herein should be considered legal advice.

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