Colorado Deputies, reup, Douglas County Sheriff's Office, colorado police Fatally Shoot Suspect, police use of force

The following is an op-ed from Donald Mihalek, the Executive VP of the Federal Law Enforcement Officers Association Foundation.

On Aug. 14, the country stood with rapt attention as a convicted criminal allegedly shot six Philadelphia police officers after a narcotics arrest went bad. What followed was a seven-and-a-half-hour standoff that only ended when police fired tear gas into his home. The week prior, a felon killed a California Highway Patrolman during a gun battle after a traffic stop on the freeway in Riverside. Two of his colleagues also suffered bad wounds. Last month in Arkansas, a suspect fatally shot a sheriff’s deputy responding to a domestic violence call. While this violence plays out, ICE facilities around the nation are under attack, including in San Antonio where the police arrested a man in connection with gunshots fired through the windows of that city’s ICE office.

Among this backdrop of violence against law enforcement, Representative Lacy Clay (D-MO) teamed up with Representative Ro Khanna (D-CA) for a new piece of legislation that, if enacted, would create a single federal standard for use of force. Clay and Khanna held a press conference, stating their intention was to combat misuse of force by law enforcement.

Police Exercising Absolute Care With Everyone Act of 2019 (PEACE Act)

The proposed bill, titled “Police Exercising Absolute Care with Everyone Act of 2019,” or PEACE Act, would require that officers not use force unless “such force is necessary, as a last resort, to prevent imminent and serious bodily injury or death to the officer or another person; the use of such forces creates no substantial risk of injury to a third person; and reasonable alternatives to the use of such force have been exhausted.”

It would also require officers to use a verbal warning before using force. Officers must use the least amount of force when interacting with pregnant women, individuals under the age of 21 and elderly persons. The restriction also applies to persons with mental, behavioral or physical disabilities or impairments. Moreover, it covers those experiencing perceptual or cognitive impairments due to use of alcohol, narcotics, hallucinogenic, or other drugs. Finally, the bill includes persons suffering from a serious medical condition and persons with limited English proficiency.

While this sounds noble and many groups applaud the proposed bill, it doesn’t take into account some facts and hard truths. In the landmark 1989 unanimous US Supreme Court case Graham v. Connor, the Supreme Court laid out the overarching criteria for a law enforcement officers use of force. Since then, Every level of court has upheld it, as it does exactly what the PEACE Act proposes to do.

In sum, the Supreme Court found that in any situation, police use of force must be based on a totality of circumstances. What does that mean? Essentially all the indicators leading up to and including what the officer knew, saw and was trained to do, are taken into account. The court considers it biased and unfair to view a use of force incident in any other light.

Additional Facts on Police Use of Force

  • All federal and other law enforcement agencies already have use of force policies. These policies include language that states that the minimum force necessary to compel compliance should be used. These policies also guide deadly force decisions as a last resort. Police only use deadly force if there is imminent threat of death or serious physical injury to the officer or another. Many also include language directing officers to give verbal warnings if possible.
  • During a use of force situation, behaviors and actions can occur in milliseconds, as the Force Science Institute documents. Often the law enforcement officer is behind the curve when danger presents itself.
  • In 2017, the FBI Crime in the U.S. report indicated that law enforcement responded to 1,247,321 violent crimes; only 987 of those led to the use of deadly force. The report showed 99.5 percent of those suspects as armed.
  • A total of 917 fatal police shootings occurred across the country in 2015. In 90 to 95 percent of the cases, an assailant attacked the law enforcement officer.
  • In a 2018 study by the Force Science Institute, after analyzing more than 1,500 law enforcement officer involved shootings, it found no evidence of systemic racial disparities in fatal shootings, shootings involving alleged unarmed citizens or fatal shootings involving misidentification of objects as weapons.
  • A 2016 Dolan Consulting Group study found that in 2014, police officers suffered assaults 9,704 times with deadly weapons; that comes to an average of 27 times per day.

Further Rulings on Police Use of Force

The Supreme Court ruled that police use of force actions must be viewed from the officer’s perspective; that view must refrain from 20/20 hindsight or a political agenda. Additionally, every law enforcement agency teaches its officers the importance of observation, articulation and use of force discipline.

Additionally, a myriad of studies document the physical phenomenon that occur during a high stress police use of force situations. For example, an article from The New York Times studied the state’s use of force and found that “It’s a tense situation, people are scared and moving, it’s not like the movies, where you can shoot the gun out of his hand.”

Acoustics Effects of Gunfire

One of the often forgotten natural phenomena is the acoustic effects of gunfire. The explosion, concussive blast, shockwave and ricochets have led many law enforcement officers and others to believe that more shots are being fired than actually are and from multiple directions. This has led many officers and witnesses to give statements of multiple shooters in almost every deadly force incident. This also is part of the reason courts and investigators have followed the Graham v. Connor guidance via a “reasonable officer” standard. They have found time after time that use of force situations cant be judged through rose-colored glasses or through the eyes of a politician. They must be judged as a snapshot in time and through the officer’s lens.

Unfortunately, legislation like the PEACE Act fails to do that. Instead, it offers unrealistic and political guidance for a practical situation.

The PEACE Act’s sponsors announced the proposed legislation to coincide with the five-year anniversary of Michael Brown’s death; the same shooting that sparked “the Ferguson effect.” However, the officer involved was ultimately cleared by both a state Grand Jury and Attorney General Eric Holder during President Obama’s term. You know how they cleared him? Based on the Graham v. Connor use of force standard.

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