You can put lipstick on a pig, as the saying goes. It can be the reddest, glossiest lipstick around, the kind that some super-model or movie actress pitches on TV. Heck, talking about movie stars, that lipstick can be applied to a recently Botoxed oinker but it’s still a pig …
So, when a police agency on the west coast was recently “investigated” by members of the U.S. Justice Department on use-of-force issues and the process called “segmentation” was used, was their investigation and the subsequent lawsuit against the Portland Police Bureau (PPB) a new “beauty” or just an old painted up swine?
The DOJ investigated the PPB based on alleged violations of the civil rights of mentally ill subjects in that city. Much of the report has to do with the city/state issues and the DOJ’s belief that there aren’t systems in place for the emergency treatment of the mentally ill. They suggest that the PPB doesn’t have a crisis intervention program for these subjects. However, other parts of the report allege excessive use of force by the PPB.
According to Portland Police Association President Daryl Turner on the release of the report, “Today, the United States Department of Justice’s report has revealed that Portland Police officers’ use of force was constitutional in over 99.9% of citizen contacts. Like Chief Reese, I disagree with the USDOJ’s conclusion that the Bureau has engaged in a pattern and practice of unreasonable force against the mentally ill; a careful review of the USDOJ’s report yields no evidence of such a pattern or practice.”
Judgments made in hindsight—or, determining the reasonableness of an officer’s use-of-force and evaluating their tactical actions made in the past instead of putting yourself in the officer’s shoes on scene and judging “at the moment the seizure (force) was made”—always use information and knowledge the officer on the street didn’t know. All are made from the quiet sanctuary of someone’s offices, and always with 20/20 clarity.
The Supreme Court in Graham v. Connor determined this: “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.” 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 chamber … violates the Fourth Amendment.”
And yet in the report Investigation of the Portland Police Bureau released in September of 2012, the DOJ refers to the Graham v. Connor decision on pg. 9, but then ignores it on pg. 10 by offering the following: “Using a focused ‘decision-point’ approach (also known as segmentation) to analyze each use of force incident, we considered each point when an officer made a decision that may have an effect on subsequent events, as opposed to focusing solely on the final decision to use force. The decision-point process allows the police supervisor to conduct more intensive and comprehensive reviews of the reasonableness of a particular use of force incident and to identify and address any flawed tactical decisions and training opportunities.”
The DOJ then cites several cases—Plakas v. Drinski, Livermore v. Lubelan and Wiegel v. Broad among others—but did the DOJ read the above cases? Let’s see what those decisions say about judging police actions using hindsight.
Plakas v. Drinski: “We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer.”
The Sixth Circuit stated in Livermore v. Lubelan, citing Dickerson v. McClellan: “That is, the court should first identify the ‘seizure’ at issue here and then examine whether force used to effect that seizure was reasonable in the totality of the circumstances, not whether it was reasonable for the police to create the circumstances.”
“The Dickerson court reasoned: The time-frame is a crucial aspect of excessive force cases. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within the constitutional limits, society praises the officer for causing.”
The Court in the Livermore decision then cites Cole v. Bone: “scrutinizing ‘only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment’” because the “Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general.”
So, we see the very cases the USDOJ cited to “create” the term segmentation and apply it in their investigation of Portland aren’t supportive of their very same “decision-point” approach. So where did they come up with it? I attempted to contact the authors of the report, but they didn’t respond to my emails.
Judgment from On High
Do I believe that crisis intervention teams (CIT) and training are valuable resources for LE? Absolutely. I’ve seen such CIT-trained officers—as well as the less-lethal training and tools that are invariably a part of these programs—help control out of control EDP’s (emotionally disturbed persons). See, that’s the part the DOJ doesn’t mention because they don’t know: Training programs like CIT have, since their inception, recommended either impact munitions or an ECW (electronic control weapon) to stop violent mentally ill persons from hurting themselves or others.
Talk is cool, if it’s possible. If not, then some type of controlling force, either impact or electric is recommended.
It’s nice to think that crisis intervention, communication skills and a kind heart will prevent police use of force with the mentally ill, but it’s simply not true. Mentally ill subjects often hurt themselves and others, as well as police officers, when controlling force is not applied.
A Swine by Any Other Name
My apologies to the pig population for my analogy to bad Justice Department investigations. We in law enforcement understand that we’re currently under the microscope on use of force and about everything else we do. We understand that Monday mornings the armchair quarterbacks, noticeably absent on Friday or Saturday night in the “playfield” of the back alleys, will come out to judge and criticize. Funny thing, I wonder if the USDOJ applied the same “decision-point approach” to Operation Fast and Furious? If they did, at what point did they think that letting hundreds of guns walk to the Mexican cartels, which resulted in multiple homicides including Border Patrol Agent Brian Terry was a good idea?
But I digress…
Perfection is a laudable, though impossible, goal for an agency or street police officer to attain. In most incidents of that involve force, the officer responds to a call for assistance where a criminal or violent act has been or is being committed and some individual needs to be investigated, detained, arrested or controlled.
The officer attempts, based on their training and experience, some type of control measure, tactic or technique dependent on their perceptions of the level of violence, threat of violence or resistance within the totality of the circumstances. In can be intense, violent, occur in a poorly lit or cluttered environment, and possibly at close range. It can be a spontaneous assault against the officer with little to no warning or with more time and communication possible—the variations are simply unfathomable.
To suggest that the officer could have or should have done something different from the vantage point of knowing the past isn’t in keeping with the law. The courts have clearly indicated that this isn’t the way an officer’s actions or use of force should be judged. Maybe the DOJ should get with the same legal standards and stop applying face paint to an old and outdated porker.
Kevin R. Davis is the head trainer of the Akron, Ohio, SWAT team and author of “Use Of Force Investigations: A Manual for Law Enforcement.” This article was printed in The Rap Sheet, the official monthly publication of the Portland Police Association.