Use of Force 14

Posted 11/29/14

LESSONS OF FERGUSON

When cops and aggressive citizens tangle, lethal results often follow

For Police Issues by Julius (Jay) Wachtel. What happened in Ferguson is far from rare. Posts in our “Use of Force” section offer many examples of the use of lethal force by police against aggressive but unarmed citizens. Here are four examples:

August 11, 2014. Two LAPD gang enforcement officers approached a 25-year old male on foot. They were unaware that he was mentally ill. According to police, the man tackled one of the officers and went for the cop’s gun. Both officers opened fire, and killed the man. However, a citizen witness denied that a struggle took place. The incident remains under review.

January 14, 2011: Two LAPD officers responding to a disturbance call came across a large, naked 25-year old man (he happened to be a former NFL prospect) “yelling and behaving erratically.” He ran off. When officers closed in he repeatedly punched them in the face and head, then supposedly grabbed for a gun. That’s when an officer shot him dead. The killing was ruled justified.

March 20, 2010: Two LAPD officers heard a loud noise while on patrol. They spotted a 27-year old man on foot. He seemed to be fiddling with something. The cops pulled up and ordered the man to stop. Instead he walked towards them and reached into his waistband. An officer shot him dead. It turns out that the man, who was learning disabled, had a cellphone in his hands. The officers received “conditional reprimands.”

May 17, 2008: Long Beach (Calif.) police responded to a 911 call about an “absolutely insane” person. They approached a shirtless, middle-aged man. Officers said he charged them. Despite a Taser strike and baton blows, he punched a cop in the face and grabbed his baton. As they tumbled to the ground the other officer shot and killed the man. His action was deemed appropriate. Some citizen witnesses denied that a struggle took place.

In the unpredictable environment of the streets, cops must make critical judgments on the fly. Citizens who are non-compliant or, worse, physically aggressive potentially set the stage for a tragedy. When the learning-disabled man (see the third example) failed to heed a cop’s warning to stop his advance, then reached into his clothing, anything that came out was likely to be construed as a gun. When Michael Brown, who punched officer Wilson and tried to take his gun turned and allegedly came at the pursuing cop, he may have seemed like a lethal threat.

How can officers avoid using deadly force? One way is to back off and wait for help. As we pointed out in a prior post, one-on-one foot pursuits are inherently dangerous. It may have been better for officer Wilson to let Brown go until backup arrived. Of course, doing so is not always appropriate, as it can transfer the risk to passers-by and help a suspect avoid capture.

Click here for the complete collection of use of force essays

Another approach, which we’ve also discussed at length, is to deploy non-lethal devices such as pepper spray or a Taser. Here we must depart from officer Wilson’s decision not to carry a conducted energy device. Still, using a Taser while working solo is potentially risky; if the darts miss or are deflected by outerwear, and the suspect keeps coming, there may not be an opportunity to go for a club or gun.

Officers working alone are at a serious disadvantage. As the episode in Ferguson demonstrates, backup is not instantaneous. Some articles in the police literature conclude that conflicted situations are more likely to be safely and peacefully resolved when a second officer is present.

On the other hand, as the above examples demonstrate, simply having more cops on scene is no panacea. (Keep in mind that our “sample” is not unbiased, as LAPD mostly uses two-officer cars.) In any case, deployment decisions usually yield to budgetary constraints. One-officer cars cover twice the area of two-officer cars, at about the same cost. In most communities, and particularly cash-strapped towns like Ferguson, the former are here to stay.

If officers must work alone, they should at least get timely information about potential threats. According to a transcript of radio traffic, the Ferguson dispatcher alerted units that “a black make in a white shirt” stole a box of cigars from a store (Track 349.) No other details were given. So when unit 22 (officer Wilson) encountered a man in a white shirt (Michael Brown, sauntering down the middle of the road,) he wasn’t certain that Brown was the thief. Neither could he know that Brown’s blood level of THC, the active ingredient in marijuana, was sufficient to impair his judgment. Had officer Wilson known that it was Brown, and that Brown had strong-armed the store clerk and pushed him against a wall, he would have likely waited for backup. Indeed, given Brown’s behavior, it’s probably a good thing that the cop didn’t immediately step out of his car and approach him on foot.

When a suspect’s name is known, officers and dispatchers may be able to provide important behavioral clues. Some jurisdictions even enter information about mentally impaired persons into their dispatch system. Unfortunately, officer Wilson did not know Brown, and would not learn of his identity until it was too late.

Did race influence the outcome? Crossed signals are probably less likely between citizens and cops of the same race. However, Michael Brown might not have been swayed by persuasion regardless of a cop’s ethnicity. He was high on THC and demonstrably aggressive, having just shoplifted a box of cigarillos and physically bullied the clerk who confronted him. Cooperating with a police officer of any race would have meant a quick trip to jail, and Brown didn’t seem in the mood for that.

Nothing in the record suggests that Brown was shot because he was black. Still, it’s always preferable that a police department’s racial and ethnic makeup resemble the composition of the community it serves. As those involved in police hiring well know, the competition for qualified minority candidates is intense. Smaller jurisdictions are at a marked disadvantage. With limited finances, they prefer to hire trained, certified and experienced officers from other agencies (officer Wilson is himself an example.) However, snagging laterals who also happen to belong to a minority group is not easy. To redress the racial imbalance in its police, Ferguson must begin by expanding the force. It will have to advertise, create a pool of applicants, select the most qualified, pay to train and certify them, then assign the new rookies to a senior officer for the twelve or eighteen months of experience they’ll need before going solo.

To be sure, taking such steps is a lot harder than jawboning and pointing fingers. It’s certainly not cheap. Neither is it guaranteed to prevent tragic encounters such as between officer Wilson and Michael Brown. But if we’re looking for a lasting improvement, there is really no alternative.

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Posted 8/30/14

A VERY HOT SUMMER

Five incidents reignite concerns about police use of force

For Police Issues by Julius (Jay) Wachtel. Five recent use-of-force incidents, each involving white officers and black citizens, have reawakened deep concerns about the troubled relationship between America’s police forces and members of minority communities.

On July 1 a motorist’s cell phone captured the image of a reportedly disoriented middle-aged woman as she walked along an onramp to a Los Angeles freeway during rush hour. Suddenly a California Highway Patrol officer runs up, tackled Marlene Pinnock, 51, and takes her down. A timely rescue…or was it? As his quarry flails on the ground, the officer, who is straddling the woman, delivers a series of severe blows.
On July 17 NYPD plainclothesmen confronted a man peddling untaxed cigarettes on a street corner. The suspect, a petty, chronic violator, told the cops to go away. Instead, an officer applied what has been described as a chokehold – prohibited by NYPD regulations – and took the man to the ground. Eric Garner, 43, obese and in poor health, soon complained that he couldn’t breathe. He then died.
On August 9, in Ferguson, Missouri, an 18-year old man who shoplifted a package of smokes from a convenience store and roughly pushed aside a protesting clerk was confronted by a patrol officer who either knew of the incident, or didn’t. Either way, onlookers and police agree that the youth leaned into the driver’s side of the police car. Shots rang out. At least several were apparently fired by the officer while he was still seated, and he may have fired more after stepping out. Michael Brown was riddled with bullets. One, which struck the top front of his head, proved fatal.
On August 11 two LAPD gang officers confronted a 25-year old pedestrian at night in a high-crime area. What happened next is in dispute. While some onlookers disagree, police insist that the youth assaulted an officer and went for his gun. Family members knew Ezell Ford to be seriously mentally ill. But not the officer who shot and killed him.
On August 19 a 25-year old man shoplifted food and drinks from a St. Louis, Missouri convenience store. He was followed outside by a clerk. Witnesses say that Kajieme Powell had a knife, was acting “erratically” and talking to himself. When police arrived he brandished the knife. Ignoring commands, he advanced on the officers and asked to be shot. Ultimately, they did, killing him. Coming only 10 days after the events in nearby Ferguson, authorities promptly released details of the incident and did their best to defuse things.

One could play the race card, but we won’t. Who’s to know what’s in men’s hearts? But these incidents had commonalities beyond race. Each suspect was at most a petty offender. At least three suffered from mental illness. And whatever offending did take place was minor. Had officers not shown up, no one would have died, and victims could have reported their losses in the conventional way.

Click here for the complete collection of use of force essays

But the cops did show up. As your blogger learned early in his law enforcement career, even the most inconsequential contact can go “high order,” and that’s especially true when dealing with young males and the emotionally disturbed. It’s for such reasons that rookies are urged to apply the Is it worth it? test before taking action. Say an officer runs across a gaggle of graffiti artists. Instead of heeding orders to stay put, they scatter. Should they be chased? Imagine what citizens would say should a youngster be seriously hurt. “For goodness sakes, he was only a kid!” And they’d be right!

In an aggressive Broken Windows/Compstat era, with cops being encouraged to go after every infraction no matter how minor, stepping back may seem like an atavistic throwback to Timmy & Lassie. Yet, as we have often suggested (e.g., “First, Do No Harm”), doing nothing is sometimes the wisest option. Policing happens in unpredictable environments populated by fallible humans, and nearly one-hundred years after the establishment of the country’s first criminal justice training program at UC Berkeley, interactions between cops and citizens remain frozen at the Cro-Magnon stage. No, we can’t be certain that warning the cigarette peddler “don’t be here when we come back” would have had much of an effect. But anything would have been far better than what happened.

Even when something must be done, it can make sense to do it in a more neutral environment (i.e., at someone’s residence, instead of the street) or to wait until additional units are on scene. Perhaps officers could have delayed acting against the knife-wielder until someone got in position with a Taser. Unfortunately, most agencies now field single-officer cars, so teamwork has suffered. To properly take hold, group tactics must be regularly practiced and used.

Beat officers are, and should rightly remain, a department’s first line of contact. “Making Time” described the shooting of an unarmed autistic youth by LAPD gang enforcement officer. Four years later, we’re chronicling a disturbingly similar situation. Both episodes might have been more peaceably resolved had cops known the young men. That’s why it’s so important to integrate patrol into all enforcement activities, to assure that someone familiar with the territory and its inhabitants is always present.

In this imperfect world, the emphasis properly lies on preventing the need to use force in the first place. First, by placing strict limits on when to intervene (good-riddance, Broken Windows.) And secondly, by carefully attending to the interventions that do occur. Pulling back may be a hard pill for some cops to swallow – after all, they’re the ones we ask to step in – but should policing lead to a tragedy, one can be sure that society will rightfully apply a very strict cost/benefit analysis to what officers did.

In retrospect, was Ferguson “worth it”?

UPDATE (9/10/17): New York City’s Civilian Complaint Review Board ruled that officer Daniel Pantaleo caused Eric Garner’s death by placing him in a prohibited chokehold. But action against Pantaleo and other officers awaits DOJ’s decision whether to prosecute them for civil rights violations.

UPDATE (1/24/17): Ruling that the officers were justified to shoot, the L.A. County D.A. refused to file charges in the death of Ezell Ford. His DNA was found on an officer’s holster, and a witness said that an officer screamed “let go of the gun!”

UPDATE (9/24/14): In an agreement between the female pedestrian and the State of California, the CHP officer resigned, and the State agreed to pay his victim $1.5 million. The officer had been on the job for two years.

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