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ILEETA U SE OF F ORCE J OURNAL APRIL – J UNE , 2005 V OLUME 5, N UMBER 2

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From the Editor

The Death of Police Officer

Molly Bowden“Police work gives you the test first, then teaches the lesson.”

Oregon Sr. Trooper Bob Dent (Ret.)

Molly Bowden, a Columbia, MissouriPolice Officer passed away on February 10,2005. PO Bowden had been shot during atraffic stop a month earlier. The shootingwas caught on the officer’s in-car camera.The video shows Officer Bowden

approaching the driver’s side of the vehicleand then a shot being fired at her by thedriver. Officer Bowden, not hit, quicklymoves to the back of the car. The suspectexits the car and fires at Bowen again,across the trunk of the car, striking her in theneck and spine. Officer Bowden goes downand the suspect then approaches her body,stands over her, and shoots her twice morebefore fleeing the scene. The killer wasfound the next day and died in a shootout

with police in which another officerwounded.

Per the video, 3.8 seconds elapsebetween the suspect’s first shot at OfficerBowden and the incapacitating shot fired ather across the car. During that time, while

she was seeking cover, Officer Bowden did

not draw her weapon. An examination ofher gun belt found the back snap of herholster undone as though she hadattempted to draw the gun but had beenunable. One of Bowden’s fellow officersreported to Calibre Press Newsline thatthere was no belt keeper between her batonholder and rear snap and there are somewho believe Bowden was unable to removeher weapon due to this obstruction.

The circumstances of Officer Bowden’sdeath should be a wake up call for all of us.The proliferation of items to be placed ongunbelts over the past years has clearlyreached its physical limits, particularly forsmaller-waisted officers. As supervisors,trainers, and fellow officers, we have anobligation to ensure that access to our forcetools, most importantly, the service weapon,is unimpeded. If officers are not drawingtheir weapons during a roll call inspection

and/or supervisors are not checkingweapons, our organizations have failed.While the primary responsibility alwaysremains with the individual officer, goodsupervision and training must be in place tohold officers accountable without a tragiclesson.

Michigan Trooper Charged inShooting

Michigan State Trooper Jay Mornings-tar has been charged with second-degreemurder stemming from an on-duty shootingthat occurred April 14, 2005. The trooper is

accused of shooting Eric Williams outside aDetroit Bar. Williams, who has a history ofmental illness, was involved in aconfrontation with officers that was caughton videotape. Per the prosecutor, thevideo, not yet publicly released, wasinstrumental in the decision to chargeTrooper Morningstar. The Michigan State




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Police released a statement in support ofMorningstar, noting "Trooper Morningstar'sactions were based on the totality of thecircumstances, including Williams' actionsand the potential for personal injury."

With only the minimal informationavailable, it is impossible to make a

determination on the reasonableness of theshooting. I’d note, however, that the video,

however descriptive, does not tell the entirestory. Video, in this case as in others, mayonly provide more material with which tosecond guess officers. No doubt the videowill be slowed, enhanced and enlarged, andthen used to attack the officer’s perceptionof the situation. These situations arealways easier to handle from the backend

of a video remote than on the scene with asplit second to make a decision.

COURT DECISIONS

Two very important decisions, one fromthe Supreme Court and one from the 9th Circuit Court, have been recently released.

The 9th

Circuit Court decision, Smith v. Cityof Hemet , which dramatically broadens thedefinition of deadly force, is reviewed indetail by our Michael Stone later in thisJournal.

In the Supreme Court case, Brosseauv. Haugen, the Court overruled the 9th Circuit Court in deciding that an officerinvolved in a Washington state shooting ofa suspect was entitled to qualified

immunity.

The facts of the case are as follows – Officer Brosseau went to a 911 callreference men fighting. On arrival, one ofthe men, Kenneth Haugen, fled the scene.Officer Brosseau knew that Haugen waswanted on a no-bail felony warrantstemming from drug charges. Otherofficers, including a K-9 officer, joined in thesearch for Haugen. After about 30 minutes,

Haugen, with Brosseau in foot pursuit, ranto his car. He managed to get in the carand lock the door before Brosseau couldcatch him. Brosseau believed Haugen hadrun to the car to retrieve a weapon.

Brosseau ordered Haugen, at gunpoint,to exit the car. Haugen ignored thecommand, started the car, and began to

pull away. Brosseau fired one shot throughthe window striking Haugen in the back.Haugen survived, was convicted of felonyeluding, and then sued Brosseau forexcessive use of force.

Of the issue of qualified immunity, the9th Circuit, a notoriously liberal court, ruledagainst Officer Brosseau, who appealed tothe Supremes. The Supreme Courtoverruled the 9th Circuit, ruling that qualified

immunity shields an officer from litigationwhen she makes a decision that, even ifconstitutionally deficient, reasonablymisapprehends the law governing thecircumstances she confronted.

Brosseau testified she shot as she wasconcerned that Haugen’s attempt to fleeposed a continuing threat to other officersand civilians in the area. The court notedthat the officer’s action fell in the “hazy

border between excessive and acceptableforce.” (Isn’t this where we live??)

The case is Brosseau v. Haugen, S.Ct., No. 03-1261, December 13, 2004.




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MORE ON THE TASER

We received a lot of comments on theTaser article published in our last Use ofForce Journal, including a request by Taser

International to reprint the article on theirwebsite. We also got an e-mail from areader in Great Britain who advised thesame debate is raging on the other side ofthe Atlantic.

In the meantime, another study on thesafety of the Taser has been released byThe Potomac Institute for Policy Studies, aD.C. area think tank, using an interestingmethodology. They used the sameapproach utilized by the Federal DrugAdministration which considers risksrelative to product efficacy. The approachrecognizes that no product is risk free. Oneinteresting statistic noted in the study was acomparison to airbags, which are estimatedto save 50 people for each person killed byan airbag. The same ratio for Taser isestimated by the study to be over 700:1.

The entire study can be viewed atwww.potomacinstitute.org .

In an interesting related note, theScottsdale Police Department is providingTasers for all 370 of its officers but hasprohibited them from being tased as part ofthe training. Most departments have madea voluntary exposure part of the Tasertraining for two reasons. First, it givesofficers confidence in the effectiveness ofthe Taser. Second, it provides a vividglimpse into the importance of weaponretention. A suspect who manages to take

away an officer’s Taser becomes a deadlythreat.

The possibility of injury cited by theScottsdale Chief in this decision can bemitigated by proper safety practices. Ouragency, the Cincinnati Police Department,had over 900 officers submit to a voluntaryexposure without a single injury reported.

PLEASE FORWARD ARTICLES OR OTHER MATERIAL OF INTEREST TO THE EDITOR AT

H OWARD R AHTZ @ ILEETA.ORG OR SNAIL MAIL TO THE POLICE ACADEMY, 800 EVANS

STREET, CINCINNATI, OH 45224. STAY SAFE.

IN THIS ISSUE

Take your time!! This issue of The ILEETA Use of Force Journal contains over 40 pages of

great information. There is info on legal cases, commentary on current issues, and a very special appearance by Lieutenant Colonel Dave Grossman, who sent us an excerpt from his

most recent book, On Combat. We’re honored to have Lt. Col. Grossman writing for us and he joins a distinguished group of writers covering a multitude of topics. This issue is not meant to

skimmed over, but read and absorbed over time. Enjoy!

No Less Lethal?? – Laura Scarry is a former police officer and a full-time police defenseattorney in the Chicago area. Laura is also a Charter Member of ILEETA. In this issue Ms.

http://www.potomacinstitute.org/

mailto:[email protected]
















http://www.potomacinstitute.org/




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Scarry reviews a case where the plaintiffs are claiming that the failure to provide officers withless lethal force options creates liability for the police department. Ms. Scarry’s legal analysisof the case is instructive. Ms. Scarry can be reached at [email protected].

AFTERFORCE – Jim Smith is a thirty year veteran of law enforcement and in this issue’s

AFTERFORCE column, Jim sounds off on media brutality and how to prepare for the aftermathof a force incident. Jim has served in law enforcement from cadet to chief of police. He is agraduate of NUTI's EMP session 94-01 and SPI's CODC 9th session. He has trained hundredsof law enforcement officers throughout the country. He is a Charter Member of both ILEETAand the Illinois Police Instructor Trainer's Association. He is currently a trainer/consultant in upstate New York, and a Police Officer for the New York, Susquehanna & Western RailwayPolice Department. He can be reached via e-mail at: [email protected]

Book Review – Joe Truncale provides us with a review of On Combat , by Dave Grossmanand Loren Christensen. Joe is a Law Enforcement Trainer and ILEETA Board Member. Hecan be contacted at [email protected]. Following Joe’s review, we have an excerpt from

the book.

Of Sheep, Wolves, and Sheepdogs – Lt. Col. Dave Grossman has been graciousenough to provide us this thought-provoking excerpt from his most recent book. Dave is amember of the ILEETA Advisory Board, and can be contacted at [email protected].

Deadly Force – Harvey Hedden reviews weapon-mounted lights and some of the newalternatives available. Harvey is a lieutenant with the Kenosha County, Wisconsin, Sheriff’sDepartment, and is currently the commander of a multi-jurisdiction drug unit. He is also theAssistant Executive Director of ILEETA. An active firearms instructor and competitive shooter,Harvey has taught various use of force topics across the nation. Lieutenant Hedden can bereached [email protected]

You Make the Call – Larry Smith discusses a high profile force incident and how adepartment might effectively handle it. Larry is a 35 year veteran of the San Diego PoliceDepartment (CA) and teaches arrest and control tactics nationally and internationally. He is

judicially recognized as an expert witness on use of force issues. He can be reached [email protected].

Use of Force Training – Brian Kinnaird reviews the issue of trainer certification andliability. Brian A. Kinnaird is the Director of Justice Studies at Fort Hays State University in

Hays, KS. He is also an author, police trainer and consultant in the field of use of force anddefensive tactics. A former law enforcement officer, Dr. Kinnaird is a Charter Member ofILEETA, and can be reached at [email protected].

K-9 – Deadly Force – Michael Stone reviews a recent 9th Circuit Court decision whichredefines deadly force. Though the case applies directly only to those officers working in the9th Federal Circuit, the implications are crucial for all of us. Michael P. Stone is a policedefense attorney who has represented federal, state and local law enforcement officers and

http://[email protected]/

















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agencies for 25 years. He teaches police discipline and civil rights for many Californiaagencies. He is currently General Counsel for the Riverside Sheriffs’ Association, LegalDefense Trust, the Los Angeles Police Command Officers Association (Deputy Chiefs,Commanders and Captains), and other Southern California Associations. Mr. Stone can bereached at [email protected].

Search and Seizure for Parolees – In a second article, Michael Stone reviews therules for search and seizure related to parolees.

When Excessive Use of Force Occurs – Neil Trautman provides a review of someresearch that looks at the so called “Blue Curtain of Silence” surrounding police misconduct.Neal Trautman is the Director of the non-profit National Institute of Ethics. He has authored 12published books, made 67 conference presentations and conducted over 600 ethics/leadershipseminars. He chaired the IACP Ethics Training Committee, and co-chaired the IACP PoliceImage and Ethics Committee. He can be reached at [email protected].

ILEETA Information and Ed Nowicki's Commentary – Find out how yourassociation is doing and the latest info on the 2005 ILEETA Conference. The 2006 ILEETAConference dates are also announced!

No Civil Liability in the Absence of Less-Lethal Weaponsby

Laura L. Scarry

In today’s column, I review a recentdecision from the Third Circuit Court ofAppeals that addresses the issue ofwhether a police department’s failure toissue less lethal weapons amounts to aconstitutional violation and thereforeimposes civil liability. In Carswell v.Borough of Homestead, 381 F.3d 235 (3rdCir. 2004), Tonya Carswell filed a federallawsuit against the Borough of Homestead,Pennsylvania; the police chief, Mark Zuger;

and Officer Frank Snyder alleging that thedefendants violated her husband’sconstitutional rights when Officer Snydershot and killed her husband.

The facts of the case are as follows:Tonya had been married to her husband,Gilbert, for approximately three and a half

years. The marriage was plagued bydomestic violence causing the couple tobecome estranged. Four months prior tothe shooting (which occurred on November18, 1999), Tonya applied for an order ofprotection from the court because Gilbertwas “an immediate and present danger ofabuse.” Not long after obtaining the orderof protection, the Homestead Police werecalled to the Carswell residence becauseGilbert, despite the protective order, came

home and punched Tonya. A couple ofweeks later, Tonya applied for a secondorder of protection because Gilbert hadripped a telephone wire from the wall,broken a table, and threatened to hit herand sexually assaulted her. In August, theHomestead Police responded to the homeafter Gilbert struck Tonya, this time in the







face with his fist. In the middle of October1999, the police were summoned againbecause Gilbert violated the order ofprotection. Gilbert escaped, ramming apolice car in the process. A felony warrant

was issued for his arrest.


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Then in the late evening hours ofNovember 17, 1999, Gilbert entered thehouse on four separate occasions. On

each occasion,the police wereunable toapprehend him.After the secondincident, Tonya

armed herselfwith a butcherknife. After thethird incident, apolice officerstayed in the

house with Tonya for over an hour and thethird shift decided to stay on duty and assistthe midnight shift in case Gilbert madefurther attempts to come into the house.Gilbert, ever persistent, made a fourth entryinto the house but was able to escape ashe had on the prior occasions. To protectTonya, an officer was stationed inside thehouse and several officers set up aperimeter around the house. Not long after,Gilbert was spotted a short distance away.An officer was able to corner Gilbert andordered him on the floor of a porch of anearby residence. Gilbert gave indicationsthat he was voluntarily surrendering butthen he suddenly jumped over the porch railand escaped once again. Several officerspursued Gilbert.

At one point, Gilbert was running up analleyway towards Officer Snyder, who wasoperating a squad car. Officer Snyderstopped his vehicle and positioned itdiagonally across the alley. Officer Snyder

exited and went to the right rear bumperwhere he stood approximately 2-3 feetaway from the car. Gilbert continued to runtowards Officer Snyder despite beingordered to stop. As he was running, Gilbert

had his hands extended out in front of him,about shoulder height, with his palms facingforward. Officer Snyder could see thatGilbert’s hands were empty as heapproached the front of the squad car.When Gilbert was approximately 2-3 feetaway from Officer Snyder, Snyder fired onefatal shot into Gilbert’s chest.

Officer Snyder only had his gunavailable as a weapon. He did not carry a

baton or pepper spray, nor did the policedepartment require these items to becarried. The police department authorizedofficers to carry these weapons but onlyafter the officer successfully completed thetraining on the use of the equipment.Officer Snyder had not received anytraining on the supplemental equipment andtherefore was only armed with his gun.

Tonya filed a federal civil rights lawsuitagainst Officer Snyder, the chief of policeand the police department alleging that theyviolated Gilbert’s constitutional rights whenOfficer Snyder shot and killed Gilbert. Thecase proceeded to trial where evidence wasintroduced that Officer Snyder did not knowthat Gilbert was unarmed. In fact, OfficerSnyder believed that Gilbert may have hada weapon on his person. Officer Snyderalso testified that if he had had less lethalforce available at the time of the fatalshooting, he would not have pulled his gunout of his holster as he did. The chief ofpolice also testified, stating that the policedepartment’s manual authorized the use ofdeadly force according to the use of forcecontinuum. He also explained that thedepartment’s policy did not require thatofficers become qualified to use pepper



spray. The chief of police also stated thatOfficer Snyder had been an officer for 14years and did not have any complaintsagainst him.

After Tonya had presented herevidence, the defendants—Snyder, Zugerand the Borough—moved for judgment as amatter of law. The court granted thedefendants’ motion, finding that OfficerSnyder was entitled to qualified immunityand that the granting of immunity relievedthe chief of police and the policedepartment from liability. Tonya appealedthe trial court’s ruling.


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“Mandating the type ofequipment that police officers

might find useful in theperformance of their myriad

duties in frequentlyunanticipated circumstances is a

formidable task indeed.”

On appeal, the court affirmed thegranting of qualified immunity to OfficerSnyder. Without going into a detailedanalysis for purposes of this article, theappellate court stated that qualifiedimmunity can apply in circumstances wherereasonable mistakes are made “as to thelegal constraints on particular police

conduct . . . . Ifthe officer’smistake as towhat the lawrequires isreasonable, . . .the officer isentitled to the

immunity defense.” Carswell, 381 F.3d at242. The appellate court stated that it hasfollowed this doctrine even in excessiveforce cases where the police have shotcitizens. The court then found that in thesecircumstances, a reasonable police officercould believe that firing at the suspect wasa proper response. “A reasonable officerwould not be expected to take the risk ofbeing assaulted by a fleeing man who wasso close that he could grapple with him andseize the gun. Our recitation of theseevents is a discussion in slow motion of anincident that took place in a matter of

seconds. Officer Snyder had no time forthe calm, thoughtful deliberation typical ofan academic setting.” Id. at 243.

The court concluded that at most,

Officer Snyder’s conduct was a mistake thatwas reasonable under the circumstancesstating that “we must never allow thetheoretical, sanitized world of ourimagination to replace the dangerous andcomplex world that policemen face everyday. What constitutes ‘reasonable’ actionmay seem quite different to someone facinga possible assailant than to someoneanalyzing the question at leisure.”

Finding that Officer Snyder was entitledto qualified immunity, the appellate courtaffirmed the decision by the lower court thatthe chief of police and the municipality werenot liable as well. Tonya’s claims againstthe municipality were summed up asfollows: 1) the police department failed toproperly train its police officers in theconstitutional use of deadly force and, 2)the police department failed to equip itsofficers with alternatives to lethal weapons.

In order to establish liability on behalf ofthe municipality/police department, thecourt stated that Tonya must demonstratethat the municipality was deliberately

indifferent to the rights of people with whomthe police come into contact. In addition toproving deliberate indifference, Tonya mustalso prove that the inadequate trainingcaused the constitutional violation. In this



case, the appellate court found that thefacts failed to establish deliberateindifference or causation. There wasevidence at trial that Officer Snyderattended annual in-service training

regarding the use of force continuum andthat he reviewed the policy manual. Inessence, the evidence failed to show thatthere was a lack of training on the use ofdeadly force that amounted to deliberateindifference.

With respect to Tonya’s claim that thepolice department should have equipped itspolice officers with less lethal force to avoidresorting to the use of deadly force when

other equipment would have sufficed, theappellate court stated that it has, “…neverrecognized municipal liability for aconstitutional violation because of failure toequip police officers with non-lethalweapons.” Id. at 245. In rendering thatfinding, the court cited Plakas v. Drinski, 19F.3d 1143, 1150-51 (7th Cir. 1994): “We do

not think it is wise policy to permit every juryin these cases to hear expert testimony thatan arrestee would have been uninjured ifonly the police had been able to usedisabling gas or a capture net or a taser (or

even a larger number of police officers) andthen decide that a municipality is liablebecause it failed to buy this equipment (orincrease its police force). There can bereasonable debates about whether theConstitution also enacts a code of criminalprocedure, but we think it is clear that theConstitution does not enact a policeadministrator’s equipment list.” Theappellate court also stated that “mandatingthe type of equipment that police officers

might find useful in the performance of theirmyriad duties in frequently unanticipatedcircumstances is a formidable task indeed.It is better assigned to municipalities thanfederal courts.”

I couldn’t agree more.

This morning as I readied for my dailygrind, I had the television in my bedroomtuned to the NBC’s “Today Show.” (Not mychoice, I was overridden.) There on thescreen was the ineffable Matt Lauer grillingSheriff Lee Baca from Los Angles about his

deputies shooting at a suspect’s vehicleseveral times. Mr. Lauer, no doubt a use offorce expert in his own right due to the factthat, um …… well I don’t quite know whyhis is an expertbut he seems tothink he is.Whether he is ornot is debatablebut he does havethe power to

make your use offorce decisionsinto raciallymotivated criminalacts simply by his voice inflections,mannerisms and ambush style interviewingand as you know from my previous columnswhat I call “Media Brutality!”


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Anyone in an officer’s shoes might ask,"Has Mr. Lauer ever walked down a darkalley in search of someone he knew wouldharm him if confronted? Has he ever run a

foot chase, or chased a car at high speeds?Have his children or wife ever beenscorned, ridiculed or even threatened?Have his wife and children ever looked athim with those eyes?" You know the kind ofeyes I am talking about, the kind that sayplease come home safe? Well then I thinkthat a use of force expert he is not.

The halo effect of 9/11 is gone; it lastedsix months, maybe a year. It is okay to beat

up on the cops again; in fact it is in vogueagain. In every newsroom across thecountry, in the boardrooms of theHollywood studios (and on every T.V.channel with some obvious exceptions) therule of thumb seem to be, depict the copsany way you can that will turn a buck, winthe sweeps, garner an Emmy, or Oscar, orwin the Pulitzer.

Recently a new phenomenon has creptinto the American lexicon called the “CSIEffect.” I have not quite figured out just whyevidence technicians are now leaddetectives, chase suspects, interrogatesuspects and have become individuals whopossess in their own minds the combinedknowledge of every science known tomortal man, but then again you probablyare puzzled too. Just think of the kind ofmoney they can make in the private sectoras defense witnesses when they retire.

As funny as the CSI Effect might be toprofessional law enforcement people, itshould also be viewed as deadly serious.Why? Simply because your future mightsomeday hinge on what a jury believes. Nomatter how many CSI Miami’s, LasVegas’s, New York’s, Chicago’s, Dallas’s or

Podunk’s there are or will be, and no matterwhere you are or where you go in lawenforcement, we will always have “Dragnet” and “Just the Facts Ma’am! ” that is thecreed we all swear by.

Swearing or affirming “to tell the truth,the whole truth, and nothing but the truth,so help you _ _ _ ( Just trying to maintainthe political correctness of my column, youfill in the blanks) is a chore in itselfbecause the dominant media has never let

the truth,sworn to orotherwise,get in the

way of agood story.That is why itis critical thatyouunderstandwhatAfterForce is,how it affectsthe facts,

how it affects you, your family, yourdepartment and even your communities.

Headlines that read like “LOSANGELES (AP) - California officialspromise a thorough investigation ofyesterday's chase that ended in a barrageof police fire in Compton.” are whatAfterForce is all about. Most lawenforcement use of force instructors andtraining programs teach the how to, thewhen to, and the why to applications of the

use of force. For years an axiom in the useof force was, “Ask yourself are my actionscourt defensible?” When it comes toAfterForce maybe a better question to askis; “will my actions be media defensible?”

Many law enforcement officers andadministrators may disagree with that



statement, but there is not enoughemphasis placed on the psychologicaleffects of media brutality on officers, theirfamilies, their departments and theircommunities. The law enforcement officer

must have his or her own CSI Effect, what Icall the Critical Statement Index. Postshooting, post use of force applicationsstatements from law enforcementexecutives, prosecutors, mayors and theofficers themselves, weigh heavily uponhow that use of force application will beviewed by the general public. What yousay, how you photograph, and yourmannerisms will all affect how you areheard.

Rick Rosenthal, noted media expertand law enforcement trainer, in his mediatraining for law enforcement makes thestatement, “You must feed the animals”,meaning you must give the mediainformation. Although the problem is, doyou give them a snack, a big lunch, or aseven course gourmet meal? This is whereI think law enforcement loses sight ofreality, especially in high media profilecases.

The focus is always on legalities,criminal and civil, and we always seem tolose sight of the health, safety, and wellbeing of the officers involved, they becomethe bad guys and the focus in never on thesuspect, and his decisions to violate thelaw. Ask yourselves when is the last timethat you heard a press conference where alaw enforcement spokesperson shifted thefocus back to the causative factors of the

application of the use of force?

When is an individual responsible forhis or her own choices and decisions?Apparently never, except if you are a lawenforcement officer! It is this writer’shumble opinion that this tactic is rarely ifever used, because we have always lived

by another axiom, which is “Never arguewith a man that buys his ink by the barrel!”Meaning of course a newspaper, althoughthat meaning has now extended to allelectronic media that reach the masses on

a daily basis.They saw it on TV, or read about it in

the newspaper or read it on-line so it mustbe true. This is the CSI Effect and it isaffecting the outcome of trials and thecareers of all law enforcement officers,because the jury pool is polluted withprejudicial statements and the political

views of celebrities,who can get theirface and their viewson almost any mediaoutlet, for any causethey might come upwith. Remember theAmadou Dialloshooting in New YorkCity? Even the Pro-Cop daily newspaper

the New York Post could not resist thebanner headline “IN COLD BLOOD” as thephoto above illustrates. Then after all was

said and done and all four officers wereexonerated the dominant media continuedto fan the flames.

The much acclaimed PBS NetworkNews Hour with Jim Lehrer ran a storyabout a year after the acquittal on what hashappened in New York City since theacquittal of four police officers in theshooting death of immigrant Amadou Diallo.(http://www.pbs.org/newshour/bb/law/jan-

june00/diallo_3-3.html). In their coveragethey tout a New York Times /CBS Newspoll which has 30% of the people polledagreeing with the Diallo verdict, 50%disagreeing and 20% undecided. Your CSIEffect should be focused on those 20%undecideds. The article attempts to bebalanced but in the end is an indictment of


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http://www.pbs.org/newshour/bb/law/jan-june00/diallo_3-3.html






law enforcement in general, even with theefforts of Patrick Lynch, the NYPD PBAPresident who is interviewed for the piece.

It is not just law enforcementantagonists like the Reverend Al Sharpton,who is quoted in the article as saying“You're talking about 41 shots -- fourdifferent cops -- and the jury says nothing iswrong. And it almost sends the signal that

whatever apolicemansays is enoughand that policehave the right,based on their

own imagined fears, no matter howunfounded they may be, to kill us --excessively kill us -- and that there'snothing criminal about it. I think that that iswhat made the verdict so appalling to usbecause it's almost like you become thesitting duck to the whims of any policeperson.”

It is music celebrities like BruceSpringsteens with his song American Skin

41 shots, whose lyrics go like this

“41 shots (repeat)

41 shots and we'll take that ride Across this bloody river to the other side 41 shots they cut through the night You're kneeling over a body in the vestibule Praying for his life

Chorus: Is it a gun? Is it a knife?

Is it a wallet? This is your life It ain't no secret The secret my friend You can get killed just for living in your American skin 41 shots (repeat)Lena gets her son ready for school She says now on these streets Charles

You got to understand the rules Promise me if an officer stops you'll always be polite Never ever run away and promise mama you'll keep your hands in sight (Repeat Chorus)41 shots (repeat)(Repeat Chorus)41 shots and we'll take that ride Across this bloody river to the other side 41 shots my boots caked in mud We're baptized in these waters and in each other's blood (Repeat Chorus)41 shots

-- "41 Shots" (aka "American Skin") byBruce Springsteen”

Thank God for the four officers involvedin the Diallo case, that the jury could not bepolluted, but as you can see it is not onlythe news media that shape AfterForce andMedia Brutality, it is often well placed lyricsin a song , like American Skin or lines in amovie.

Learn to develop your own CSI effect.McDonalds has its BIG MAC, I have my“IMAC’ s” (Is My Asset Covered) – more on

my IMAC’s in my next column.

Until then ladies and gentlemenremember and as always, do not let yourguards down, stay alert, don’t worry aboutwhat your detractors say, be liabilityconscious not liability paranoid.Concentrate on the job at hand, don’t allowpolitical correctness to dictate how youperform your jobs, trust your instincts, andmake us proud like we know you will. Most

of all stay safe!! God Bless America andGod Bless Each and Every one of you!!!

Any Comments or suggestions on thisor other After Force columns can be sent toJim Smith at [email protected]


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Book Reviewby

Joe Truncale

Sheep, Wolves and SheepDogs, Which Are You?

Lt. Col. Dave Grossman is one of themost well known trainers in the lawenforcement and military community. He isa West Point psychology professor ofmilitary science . He was also an ArmyRanger and is the author of numerousbooks on combat psychology. In his recentbook, On Combat he relates how oneVietnam veteran once told him "Mostpeople in our society are sheep. They arekind, gentle, productive creatures who can

only hurt one another by accident." This istrue. This not a put down of people who fallinto the sheep category. Most people donot desire to hurt their fellow human beings.This is why the military uses variouspsychological methods to train their peopleto kill, when the situation demands suchaction. The sheep in our society would dofine, if it were not for the hard reality of thewolf. The wolfs in society are thepredators. They are the criminals and

psychopaths who seek out the sheep. Youknow what the wolves call the sheep?Dinner. The wolf agrees totally with thesheep when it comes to gun control. Theywant the sheep helpless, afraid and alwaysunarmed. The sheep dogs are the ethicalwarriors in our society. They are theprotectors of the sheep, even though thesheep do not trust or even like the sheepdogs. However, they are quick to hidebehind the sheep dogs when the wolf is

around. The sheep dog is not superior to

the sheep, but recognizes his vital role asprotector without seeking credit.

In the same way the military and law

enforcement community is despised andhated by a segment of society, so thesheep dog is distrusted by the sheep. Thisis because the sheep dog can be just asruthless and aggressive as the wolf whenthe situation demands it. This upsets thesheep. The sheep, the wolf and the sheepdog example may seem simplistic toexplain our complex society. Nevertheless,to a large extent it is true. Before I readand heard Lt. Col. Grossman's insights, I

used to classify people in our society aspredators, average citizens and warriors.Sheep, wolf or sheep dog, which are you?

Every law enforcement trainer, militarytrainer, and warrior arts teacher should geta copy of Grossman's fantastic book, On Combat . It is a must read for anyoneinterested in the psychology of combat.

FIVE STAR HIGHEST RATING

Editors Note – An excerpt from ColonelGrossman’s book can be found

following this review.

About Joe Truncale – Joe is a LawEnforcement Trainer and ILEETA BoardMember. He can be contacted [email protected].


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Of Sheep, Wolves, and Sheepdogs

byLt. Col. Dave Grossman

“Honor never grows old, and honor rejoices the heart of age. It does so because honor is, finally, about defending those noble and worthy things that deserve defending, even if it comes at a high cost. In our time,that may mean social disapproval,public scorn, hardship, persecution, or as always, even death itself. The question remains: What is worth

defending? What is worth dying for? What is worth living for?” WILLIAM J. BENNETT

NOVEMBER 24, 1997

One Vietnam veteran, an old retiredcolonel, once said this to me: “Most of thepeople in our society are sheep. They arekind, gentle, productive creatures who canonly hurt one another by accident. This istrue. Remember, the murder rate is six per100,000 per year, and the aggravated

assault rate is four per 1,000 per year.What this means is that the vast majority ofAmericans are not inclined to hurt oneanother.


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Some estimates say that two millionAmericans are victims of violent crimesevery year, a tragic, staggering number,perhaps an all-time record rate of violentcrime. But there are almost 300 millionAmericans, which means that the odds of

being a victim of violent crime isconsiderably less than one in a hundred onany given year. Furthermore, since manyviolent crimes are committed by repeatoffenders, the actual number of violent

citizens is considerably less than twomillion.

Thus there is a paradox, and we mustgrasp both ends of the situation: We maywell be in the most violent times in history,but violence is still remarkably rare. This isbecause most citizens are kind, decentpeople who are not capable of hurting each

other, except by accident or under extremeprovocation. They are sheep.

I mean nothing negative by calling themsheep. To me it is like the pretty, bluerobin’s egg. Inside it is soft and gooey butsomeday it will grow into somethingwonderful. But the egg cannot survivewithout its hard blue shell. Police officers,soldiers and other warriors are like thatshell, and someday the civilization theyprotect will grow into something wonderful.For now, though, they need warriors toprotect them from the predators.

Then there are the wolves, the old warveteran said, and the wolves feed on thesheep without mercy. Do you believe there

are wolves outthere who willfeed on the flockwithout mercy?You betterbelieve it. Thereare evil men inthis world and

they are capable of evil deeds. The momentyou forget that or pretend it is not so, you




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become a sheep. There is no safety indenial.

Then there are sheepdogs, he went on,and I’m a sheepdog. I live to protect the

flock and confront the wolf. Or, as a sign inone California law enforcement agency putit, “We intimidate those who intimidateothers.”

If you have no capacity for violencethen you are a healthy productive citizen: asheep. If you have a capacity for violenceand no empathy for your fellow citizens,then you have defined an aggressivesociopath--a wolf. But what if you have a

capacity for violence, and a deep love foryour fellow citizens? Then you are asheepdog, a warrior, someone who iswalking the hero’s path. Someone who canwalk into the heart of darkness, into theuniversal human phobia, and walk outunscathed.

The Gift of Aggression

Everyone has been given a gift in life.

Some people have a gift for science andsome have a flair for art. And warriors havebeen given the gift of aggression. Theywould no more misuse this gift than adoctor would misuse his healing arts, butthey yearn for the opportunity to use theirgift to help others.

What goes on around you...compares little with what goes on inside you.

RALPH WALDO EMERSON

These people, the ones who have beenblessed with the gift of aggression and alove for others, are our sheepdogs. Theseare our warriors.

One career police officer wrote to meabout this after attending one of myBulletproof Mind training sessions:

I want to say thank you for finally shedding some light on why it is that I can do what I do. I always knew why I did it. I love my [citizens], even the bad ones, and had a talent that I could return to my community. I just couldn ’t put my finger on why I could wade through the chaos, the gore, the sadness, if given a chance try to make it all better, and walk right out the other side.

Let me expand on this old soldier’sexcellent model of the sheep, wolves, and

sheepdogs. We know that the sheep live indenial; that is what makes them sheep.They do not want to believe that there isevil in the world. They can accept the factthat fires can happen, which is why theywant fire extinguishers, fire sprinklers, firealarms and fire exits throughout their kids’ schools. But many of them are outraged atthe idea of putting an armed police officer intheir kid’s school. Our children are dozensof times more likely to be killed, and

thousands of times more likely to beseriously injured, by school violence thanby school fires, but the sheep’s onlyresponse to the possibility of violence isdenial. The idea of someone coming to killor harm their children is just too hard, sothey choose the path of denial.

The sheep generally do not like thesheepdog. He looks a lot like the wolf. Hehas fangs and the capacity for violence.

The difference, though, is that thesheepdog must not, cannot and will notever harm the sheep. Any sheepdog whointentionally harms the lowliest little lambwill be punished and removed. The worldcannot work any other way, at least not in a



representative democracy or a republicsuch as ours.

Still, the sheepdog disturbs the sheep.He is a constant reminder that there are

wolves in the land. They would prefer thathe didn’t tell them where to go, or givethem traffic tickets, or stand at the ready inour airports in camouflage fatigues holdingan M-16. The sheep would much ratherhave the sheepdog cash in his fangs, spraypaint himself white, and go, “Baa.”


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Until the wolf shows up. Then the entire

flock tries desperately to hide behind onelonely sheepdog. As Kipling said in his

poem about Tommy, the British soldier:

While it's Tommy this, an' Tommy that, an' "Tommy, fall be'ind,"

But it's "Please to walk in front, sir," when there's trouble in the wind,

There's trouble in the wind, my boys, there's trouble in the wind,

O it's "Please to walk in front, sir," when there's trouble in the wind.

The students, the victims, at ColumbineHigh School were big, tough high school

students, and under ordinary circumstancesthey would not have had the time of day fora police officer. They were not bad kids;they just had nothing to say to a cop. Whenthe school was under attack, however, andSWAT teams were clearing the rooms andhallways, the officers had to physically peelthose clinging, sobbing kids off of them.This is how the little lambs feel about theirsheepdog when the wolf is at the door.Look at what happened after September

11, 2001, when the wolf pounded hard onthe door. Remember how America, morethan ever before, felt differently about theirlaw enforcement officers and militarypersonnel? Remember how many timesyou heard the word hero?

Understand that there is nothingmorally superior about being a sheepdog; itis just what you choose to be. Alsounderstand that a sheepdog is a funny

critter: Heis alwayssniffingaround outon theperimeter,checkingthe breeze,barking at

things that go bump in the night, andyearning for a righteous battle. That is, the

young sheepdogs yearn for a righteousbattle. The old sheepdogs are a little olderand wiser, but they move to the sound ofthe guns when needed right along with theyoung ones.

Here is how the sheep and thesheepdog think differently. The sheeppretend the wolf will never come, but thesheepdog lives for that day. After theattacks on September 11, 2001, most of thesheep, that is, most citizens in Americasaid, “Thank God I wasn’t on one of thoseplanes. The sheepdogs, the warriors, said,“Dear God, I wish I could have been on oneof those planes. Maybe I could have madea difference.” When you are trulytransformed into a warrior and have trulyinvested yourself into warriorhood, youwant to be there. You want to be able tomake a difference.

While there is nothing morally superiorabout the sheepdog, the warrior, he doeshave one real advantage. Only one. He isable to survive and thrive in an environmentthat destroys 98 percent of the population.



There was research conducted a fewyears ago with individuals convicted ofviolent crimes. These cons were in prisonfor serious, predatory acts of violence:assaults, murders and killing law

enforcement officers. The vast majority saidthat they specifically targeted victims bybody language: slumped walk, passivebehavior and lack of awareness. Theychose their victims like big cats do in Africa,when they select one out of the herd that isleast able to protect itself.

However, when there were cues givenby potential victims that indicated theywould not go easily, the cons said that they

would walk away. If the cons sensed thatthe target was a "counter-predator," that is,a sheepdog, they would leave him aloneunless there was no other choice but toengage.

One police officer told me that he rodea commuter train to work each day. Oneday, as was his usual, he was standing inthe crowded car, dressed in blue jeans, T-shirt and jacket, holding onto a pole andreading a paperback. At one of the stops,two street toughs boarded, shouting andcursing and doing every obnoxious thingpossible to intimidate the other riders. Theofficer continued to read his book, thoughhe kept a watchful eye on the two punks asthey strolled along the aisle makingcomments to female passengers, andbanging shoulders with men as theypassed.


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As they approached the officer, he

lowered his novel and made eye contactwith them. “You got a problem, man?” oneof the IQ-challenged punks asked. “Youthink you’re tough, or somethin?” the other

asked, obviously offended that this one wasnot shirking away from them.

“As a matter of fact, I am tough,” theofficer said, calmly and with a steady gaze.

The two looked at him for a longmoment, and then without saying a word,turned and moved back down the aisle tocontinue their taunting of the otherpassengers, the sheep.

Some people may be destined to besheep and others might be geneticallyprimed to be wolves or sheepdogs. But Ibelieve that most people can choose which

one they want to be, and I’m proud to saythat more and more Americans arechoosing to become sheepdogs.

Seven months after the attack onSeptember 11, 2001, Todd Beamer washonored in his hometown of Cranbury, NewJersey. Todd, as you recall, was the manon Flight 93 over Pennsylvania who calledon his cell phone to alert an operator fromUnited Airlines about the hijacking. When

he learned ofthe otherthreepassengerplanes thathad beenused asweapons,Todd

dropped his phone and uttered the words,“Let’s roll,” which authorities believe was asignal to the other passengers to confrontthe terrorist hijackers. In one hour, atransformation occurred among thepassengers--athletes, business people andparents--from sheep to sheepdogs andtogether they fought the wolves, ultimately




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saving an unknown number of lives on theground.

Here is the point I like to emphasize,especially to the thousands of police

officers and soldiers I speak to each year.In nature the sheep, real sheep, are born assheep. Sheepdogs are born that way, andso are wolves. They didn’t have a choice.But you are not a critter. As a human being,you can be whatever you want to be. It is aconscious, moral decision.

There is no safety for honest men except by believing all possible evil of evil men.

Edmund Burke

If you want to be a sheep, then you canbe a sheep and that is okay, but you mustunderstand the price you pay. When thewolf comes, you and your loved ones aregoing to die if there is not a sheepdog thereto protect you. If you want to be a wolf, youcan be one, but the sheepdogs are going tohunt you down and you will never have rest,

safety, trust or love. But if you want to be asheepdog and walk the warrior’s path, thenyou must make a conscious and moraldecision every day to dedicate, equip andprepare yourself to thrive in that toxic,corrosive moment when the wolf comesknocking at the door.

For example, many officers carry theirweapons in church. They are wellconcealed in ankle holsters, shoulderholsters or inside-the-belt holsters tuckedinto the small of their backs. Anytime yougo to some form of religious service, thereis a very good chance that a police officer inyour congregation is carrying. You willnever know if there is such an individual in

your place of worship, until the wolf appearsto slaughter you and your loved ones.

I was training a group of police officersin Texas, and during the break, one officer

asked his friend if he carried his weapon inchurch. The other cop replied, “I will neverbe caught without my gun in church.” Iasked why he felt so strongly about this,and he told me about a police officer heknew who was at a church massacre in Ft.Worth, Texas, in 1999. In that incident, amentally deranged individual came into thechurch and opened fire, gunning down 14people. He said that officer believed hecould have saved every life that day if he

had been carrying his gun. His own sonwas shot, and all he could do was throwhimself on the boy’s body and wait to die.That cop looked me in the eye and said,“Do you have any idea how hard it wouldbe to live with yourself after that?”

Some individuals would be horrified ifthey knew this police officer was carrying aweapon in church. They might call himparanoid and would probably scorn him.

Yet these same individuals would beenraged and would call for “heads to roll” ifthey found out that the airbags in their carswere defective, or that the fire extinguisherand fire sprinklers in their kids’ school didnot work. They can accept the fact that firesand traffic accidents can happen and thatthere must be safeguards against them.Their only response to the wolf, though, isdenial, and all too often their response tothe sheepdog is scorn and disdain. But thesheepdog quietly asks himself, “Do youhave any idea how hard it would be to livewith yourself if your loved ones wereattacked and killed, and you had to standthere helplessly because you wereunprepared for that day?”




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The warrior must cleanse denial from

his thinking. Coach Bob Lindsey, arenowned law enforcement trainer, saysthat warriors must practice when/then

thinking, not if/when. Instead of saying,” If ithappens then I will take action,” the warriorsays, “When it happens then I will beready.”

It is denial that turns people into sheep.Sheep are psychologically destroyed bycombat because their only defense isdenial, which is counterproductive anddestructive, resulting in fear, helplessnessand horror when the wolf shows up.

Denial kills you twice. It kills you once,at your moment of truth when you are notphysically prepared: You didn’t bring yourgun; you didn’t train. Your only defensewas wishful thinking. Hope is not a strategy.Denial kills you a second time becauseeven if you do physically survive, you arepsychologically shattered by fear,helplessness, horror and shame at yourmoment of truth.

Chuck Yeager, the famous test pilotand first man to fly faster than the speed ofsound, says that he knew he could die.

I was always afraid of dying. Always.It was my fear that made me learn everything I could about my airplane and my emergency equipment, and kept me flying respectful of my machine and always alert in the

cockpit. Chuck Yeager

There was no denial for him. He did notallow himself the luxury of denial. This

acceptance of reality can cause fear, but itis a healthy, controlled fear that will keepyou alive.

Gavin de Becker puts it like this in Fear

Less, his superb post-9/11 book, whichshould be required reading for anyonetrying to come to terms with our currentworld situation:

“...denial can be seductive, but it has aninsidious side effect. For all the peace ofmind deniers think they get by saying itisn’t so, the fall they take when faced withnew violence is all the more unsettling.Denial is a save-now-pay-later scheme, acontract written entirely in small print, for inthe long run, the denying person knowsthe truth on some level.”

And so the warrior must strive toconfront denial in all aspects of his life, andprepare himself for the day when evilcomes.

If you are a warrior who is legallyauthorized to carry a weapon and you stepoutside without that weapon, then youbecome a sheep, pretending that the bad

man will not come today. No one can beone 24/7 for a lifetime. Everyone needsdown time. But if you are authorized tocarry a weapon, and you walk outsidewithout it, just take a deep breath, and saythis to yourself... “Baa.”

This business of being a sheep or asheepdog is not a yes-no dichotomy. It isnot an all-or-nothing, either-or choice. It is amatter of degrees, a continuum. On one

end is an abject, head-in-the-grass sheepand on the other end is the ultimate warrior.Few people exist completely on one end orthe other. Most of us live somewhere inbetween. Since 9-11 almost everyone inAmerica took a step up that continuum,



away from denial. The sheep took a fewsteps toward accepting and appreciatingtheir warriors, and the warriors startedtaking their job more seriously. The degreeto which you move up that continuum, away

from sheephood and denial, is the degreeto which you and your loved ones will

survive, physically and psychologically atyour moment of truth.

The article above is excerpted from On Combat, by Dave Grossman with Loren

Christen.

Deadly Force by Lt. Harvey Hedden


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Being able to identify a deadly threat isimportant to officer survival. If we fail torecognize the threat, we may not have to beconcerned about criminal charges orliability. But if we misidentify a threat andshoot someone based on poor sensoryperception, the suspect, the officer, the

agency and thecommunity may pay aterrible price. For thisreason firearmsinstructors arerevisiting flashlight

assisted shooting techniques in the hope ofimproving our ability to accurately identifythreats in reduced light. On the street,officers typically use the light to identifythreats, but once shooting starts it is rare tofind officers who maintained such a stance.

In the past 5 years, weapon mountedlights have also become so popular that

nearly every handgun manufacturerhas added rails to

their weapons

to permitattachmentof a light.

Initially suchequipment was the

exclusive domain of tactical officers. Butmore street officers are adopting thisequipment and some law enforcementagencies have actually provided it for all

their officers.

One of theproblems with thepistol mounted lighthas been finding a

holster to accommodate the combination.As a result many officers have purchased

pouches or holders for theirlights with the intention ofattaching the light when it isneeded. But manufacturersof pistolmountedlightsadviseusers tomount the light

only on an unloaded weapon.It is unlikely an officer will needhis weapon but unload it prior

to mounting the light and then reload it.Re-holstering also presents problems asthe officer must remove the light first.Placing the hand in front of the muzzle




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during a high risk contact is a verydangerous condition.

Safariland is producing duty holstersthat will accommodate weapon mounted

lights. Other manufacturers are gearing upto meet this new demand. Plainclothesofficers such as myself are somewhatlimited in their choices. Fobus and BladeTech currently make such a holster for themore popular police pistols. If you preferleather you may have to look at a customshop until the market dictates thatproduction of a concealment holster isworthwhile.

Having used a weapon mounted lighton duty and observing others using it, it is

critical that we teach our officers that theweapon mounted light is not a tool ofillumination but a weapon system. Thissounds elementary but I have observedofficers executing a search warrant begin

searching the scene with their weaponmounted light after the all clear. Theyalmost always corrected themselves but thepotential danger and need for training inthis area is clear. Officers must carry aflashlight, (and preferably a back up), fornormal illumination duties and should notremove the weapon mounted light for thispurpose. As with any new equipment, it isonly as valuable as the training behind it.

Stay Safe

You Make the Call

By Larry Smith

Disclaimer: This scenario could be

fictitious or factual and all evaluations of theincident are based solely on the informationin print and not based on any hypotheticalsituations. The conclusion is strictly myopinion.

The Incident

James Farmer was an auto detailer andworked for several companies. He had anagreement with AAA Auto Auctions to do

minor paint and body touch up for vehiclesbeing readied for the auction. On theauction grounds he had a tent cover and aplace to work. Here he stored thinners andhazardous waste products. Hazardousmaterials must be removed by a licensedHAZMAT company. Tiny Jones was hissubordinate and worked at the auction lot.

Farmer received a call from Jones totell him that the auction company wantedhis hazardous waste removed from theproperty immediately. The auction used aforklift to lift two fifty-five gallon drums with

hazardous waste onto his truck andruptured one of the drums spilling thecontents onto the truck and onto theground. There was a falling out withFarmer and the management of AAA AutoAuction and they no longer wanted hisservices.

Farmer arrived at the auction yard andwent into the main business office and wasloud and boisterous toward the Controller,

Alex Johnson. Farmer went into theauction yard and confronted anotheremployee, Jim Jensen. Jensen had a goodrapport with Farmer and gave himpermission to enter the yard to get hisvehicle and other property there.




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Jones stayed with the vehicle andFarmer went back to the front of the officesto get his truck. Farmer drove through theguard gate without stopping and went to thearea where Jones was. Meanwhile, Alex

Johnson broadcast over the security radiothat he wanted Farmer ejected from theyard. Security officers Tony Lopez andJake Moreno responded to where Farmerwas. Lopez was in plain clothes andMoreno was in a security guard uniform.

Rich Robertson, the security chief, hadwritten policies that no was to enter thepremises without signing in at the securityentrance gate. Another policy stated that ifa security officer had a verbal confrontation,

to back off and call management.

Lopez must give a clear-cut message that Farmer was trespassing and order him to leave.Further, Farmer must be given adequate time to comply before an arrest.

Lopez approached Farmer’s truck andFarmer was talking on a cell phone. Lopeztold him he was making a citizen’s arrest fortrespassing. There was no immediateresponse from Farmer and Lopez openedthe driver side door to the truck andgrabbed Farmer by the left hand. NextFarmer struck Lopez in the face with hisfist. Lopez, with the help of Moreno, drugFarmer out the truck. There werediscrepancies as to whether Farmer landedon his buttocks on the ground or waspushed against the side of the truck forhandcuffing.

In any event, Farmer was handcuffedand escorted to the front offices by Lopezand Moreno. The Police were called.When the police officer arrived there wasdiscussion about the incident and the twoparties, Lopez and Farmer, agreed not totake any legal action and Farmer was

released. They agreed not to make anypolice report and Farmer left with hisequipment and products.

On the way home Farmer said his back

was hurting and called the police from aplace near the north city limits. Theresponding officer called back to the firstofficer that was at the auction yard andconfirmed that no report was requested.The officer told Farmer this was a civilmatter and he could pursue it in a civilcourt.

Two years later Farmer filed a lawsuitagainst the auction company for injuries

sustained at the auction yard during theconfrontation with Lopez.

The Investigation

During the investigation it wasconfirmed that Jensen had givenpermission for Farmer to enter the auctionproperty. Farmer never stopped at thesecurity gate nor complied with the rules bysigning in. Alex Johnson was the person in

charge and ordered Farmer off theproperty. Lopez, a private security officer,had only the right of any citizen to make acitizen’s arrest. There was no clear-cutorder given to Farmer to inform him that hewas trespassing and he would be arrestedif he remained. It was unclear if Farmerrefused to leave, then threw a punch atLopez or whether Farmer threw the punchwhen Lopez tried to get Farmer out of thetruck. There were contradicting statements

about Farmer landing on the ground oragainst the truck.

My Opinion

Obviously this incident occurredbecause of anger and a heated argumentbetween Farmer and Controller Johnson.



More negotiating could have avoided thissituation. I believe that Johnson couldresend the policy and instruct the securityguard to eject Farmer from the property.Lopez was not very skilled at enforcing the

law. He never identified himself as asecurity officer before he took any action.Remember, Lopez was in plain clothes. Hehas to give a clear-cut admonishment thatFarmer is trespassing and order him toleave. Lopez must then give him adequatetime to comply before he can use force toeffect an arrest, and only after Farmeractively resists. If Farmer struck Lopez

prior to any enforcement action, thenobviously Lopez has every right to make acitizen’s arrest for battery. In this caseeverything ran together and the legal stepswere not defined. It is a legal decision to

determine whether the injuries occurredduring the incident or not, but if they didoccur I believe AAA Action is liable.

That is my opinion, what is yours?

Larry can be reached [email protected].

Use of Force Training:Competence and

Liability

By Brian A. Kinnaird, Ph.D.

If you pick up a trade publication or visit

any professional organization’s websitetoday, you will more than likely find an

advertisement on “how tobecome a

certified ______”(you fill inthe blank).More andmore, theindustry is

seeing aproliferationofspecialized

titles for thosewho pay a rather large fee, submit anessay-style written examination and/or haveexperience in a designated area for a

specific amount of time. To a furtherdegree, we are also seeing more trainingprograms for practitioners that promote theability to certify or be certified.

Holding a certification is central toanything one does in law enforcement. Infact, as will be discussed, certification leadsto a whole new world of insight and

perspective. The problem lies in the rhetoricof just what certification means ? Thisquestion is best summarized through afamiliar and simple inquiry-basedmethodology that considers the who, what,when, where, and why of certification.

Who is Certified?

Typically, “certified _______ (you fill inthe blank)” or agency instructors are law

enforcement officers who have beenthrough recruit training, field trainingprograms and have spent some time in thefield or in the jail. Depending on agencycircumstances, however, this is not alwaysthe case. For example, reserve and civilianofficers, agency staff, and communityliaisons may acquire certifications as


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agency supplements in an effort to provideservices. Agencies may also have reserveofficers who have certifications such as“radar instructor” or “radar operator” whothemselves do not have basic law

enforcement certification. Other times,agencies may have an officer trained andassigned as a community policing officerwho spends absolutely no time doingcommunity policing. This is no different thanan agency that sends their officers topursuit driving training with a departmentpolicy that states that pursuits areforbidden.


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It is important for agency administrators

to identify specific variables when seekingout potential applicants for use of forcetraining. Not only should the applicant sharesimilar administrative philosophies abouttraining and the dissemination of suchskills, techniques and knowledge, but theyshould also exhibit a passion for thecertificate. How many times are officerssubmitting training requests for expensive

and seemingly non-tangible training forpurposes of justsatisfying annualtraining hours orproviding a vacationout of town?

In addition tounderstanding theneeds of their agencyand resources

available forallocation, a savvy police chief, sheriff,training administrator (or their subordinates)should also have an intrinsic knowledge oftheir personnel: their weaknesses, theirstrengths, their interests, and theircommitments to pursuits in their career.

From this, a comfortable (and worthwhile)decision may be made as to “who” gets tobe certified and “what” that certification willentail.

What is Certification?

Certification is perhaps best describedas credentialing personnel in an effort toprovide an explicit display of competence,recognition, or achievement. It may also beconsidered as a simple tool for continuedpersonal or professional growth anddevelopment.

Law enforcement officers attend basic

recruit training and become certified tocarry out specific duties and responsibilitiesunder local, state and federal law. In doingso, officers may become certified to useprojectile irritants such as oleoresincapsicum or the baton, taser and othermethods of the use of force. Likewise,officers may become certified to handle acanine unit, head up a community policinginitiative or become a drug recognitionexpert.

Certifications are most commonlydocumented through a basic certificate orletter that states that the individual has

completed acertain number oftraining hours,typically includingwritten andpracticalproficiencies.

Somecertifications are designated for instructor-trainers, while other certifications maysimply provide documentation that theofficer is proficient enough to use theknowledge in a basic manner that is




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consistent with the certifying body,community standards, department policy,state and federal law. Careful attentionshould be given as to how the certificate isarticulated. Is it a certificate of completion ,

certificate of participation , or instructor certification program ? Certifications given toofficers to instruct or simply use theknowledge are typically accompanied bywords and phrases that give them suchspecific designation, too.

When is Certification?

Beyond typical recruit-based trainingprograms, including the academy and field

training programs which officers attendshortly after being hired, law enforcementofficers usually observe a period of fieldwork and experience before they areauthorized to become instructors or“certified _____” in specialized areas.Contrastingly, there are a number ofagencies who also try to get their officersinto use of force programs immediately forpurposes of accreditation, in-house training,or simply for professional development and

competence.

Spending some time within theorganization, learning both formal andinformal rules, assists both the officer andtheir administrators in deciding whether ornot the candidate is an acceptable choicefor training/certification. It gives anadministration time to identify specificneeds within the agency and to furtherdecide where and how to allocate funds

(within positive fiscal parameters). This timealso gives the officer a period of selfreflection as to what their passion is withinthat organization, how their skills may workfor the organization and where their currentniche is or is not.

Where is Certification?

From a physical perspective, trainingand testing for certifications can occur

essentially anywhere. From the confines ofa police academy to the squad room of alaw enforcement agency, certification ritualscan be held anywhere people can gettogether. A contemporary event in thecourse of certification programs is the useof technology. Mediated equipment fromPowerPoint™ presentations to videos andInternet programs allows the trainingenvironment to expand in depth. As aresult, many certification programs today

are set up in physical quarters whereby aprojector screen or other equipment may bedisplayed and used to enhance the training.It is not typical, however, to have skills-based training conducted through the useof “sit-down-lectures”, at least allinclusively.

Why Certify?

Perhaps one of the most poignant

questions asked about certificationprocesses is its importance. Individualcertifications in specific programs orcertifications related to the agency as awhole may be required for some forpurposes of accreditation or for monetaryallocations offered by local, state, or federalcommissions. Whatever the specific cause,certifications are inevitably obtained andheld as a qualifying document of the officeror agency’s proficiency and experience in

the use of force area, they are also used toadvance the overall knowledge of thepractitioner in the field, ensuring that theyare aware of current initiatives andapproaches relative to the area ofcertification.



In today’s litigious society where a

lawsuit is around every corner, lawenforcement is reminded daily of the impactof improper decisions or merely “good”

decisions that affected the other partyadversely . As a result, how is certificationused to minimize liability for the trainer ortrainer’s agency for training (or lack thereof)provided to end users? Additionally, at whatpoint is an officer’s training certification orthe fact that they are a training providercalled into question negatively by opposingcounsel?

The idea that trainers might be held

liable because their instruction wassomehow faulty appears to be a novelproposition and little to no information orcases exist on that kind of claim. Thissituation may simply be labeled as“negligent training.” However, manylawsuits deal with the failure to train inwhich agencies or municipalities arealleged to have a policy of failing to trainofficers or failing to train officers adequatelyregarding tasks frequently performed.


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The suggestion that little informationexists on what is considered negligenttraining is due to the difficulty in meeting the

burden of proof. Therefore, itmight be useful to examine

a hypothetical lawsuitbased upon the notion of

negligent training in thiscontext.

The most likelyplaintiff in this type oflegal action against an

instructor would be either thestudent who took an instructor-trainingcourse or a third person claiming harm due

to a student-officer who applied a trainingtechnique in the field. Alternatively, theplaintiff might claim that a particular traininginitiative was missing from the instruction.What kind of legal claim would the plaintiff

bring in a lawsuit? Most likely, the claimwould arise in tort; more specifically, itwould allege a claim of negligence.

Negligence is the breach of a dutyowed toward those who may foresee ablybe harmed. In a lawsuit for negligenttraining, the plaintiff’s claim would assertthat a trainer’s instruction or failure toinstruct created an unreasonable risk ofharm to the plaintiff. The claim could further

assert that the trainer failed to take intoconsideration changes in the law or simplyfailed to abandon a technique that hadbeen shown to be invalid (either throughscientific or medical scrutiny). It might beasserted that the instructor knew or shouldhave known that a point of instruction wasinvalid or was excluded and that thisresulted in harm to the plaintiff.

An important aspect of negligence isforeseeability. Although it is foreseeablethat a training component or failure toinclude some aspect in training might leadto some harm in general, it might be arguedthat the requisite foreseeability requiredmore specificity. For example, instructionfor a use of force technique might be givenand then applied inappropriately to anarrestee by a student-officer. Even though aplaintiff would try to argue that thenegligence was foreseeable, therelationship between some unknown thirdparty and the original trainer is somewhatattenuated. In other words, the likelihoodthat the harm was foreseeable to theplaintiff, specifically, is difficult to prove andit would depend largely on the facts and



circumstances of each case as governed byGraham v. Connor (1989).

Consider these factors: did the student-officer retain reliable and valid training and

simply forgot something and applied itinappropriately? Were there otherintervening or contributing factors for theharm? Were there particular facts andcircumstances unique to the situation? Fourelements required for a negligence claimare duty, breach of duty, causation andharm (or damages). All four elements haveto be proven in order for the plaintiff to besuccessful in a lawsuit. Each element isdiscussed below in the context of the

previous hypothetical scenario.

Duty. Proving that the instructor had aduty to the plaintiff would not be outside therealm of possibility. A duty or obligation ofreasonable care can arise out of statute,common law, policy, custom, contract, orrelationship. For example, a third party suchas an arrestee might have a weaker caseagainst the trainer than the student-officerwould have against the instructor. At leastone obvious reason for this would be thatthe student had a better ground to claimthat a duty arose to train effectively, whichmay include an argument based on dutyarising out of custom, contract, orrelationship. However, the third partyarrestee would have to be craftier indeveloping an argument that the student-officer owed him a duty because thatrelationship is more attenuated.

Breach of duty. A breach of duty impliesthat the instructor owed a duty but did notact in accordance with that duty. Theinstruction could be consideredincompetent, unreliable or invalid. But howare training methods deemed

unacceptable? Who determines what isunacceptable? Regarding legality, trainingtechniques are deemed unacceptable bydetermining reasonableness under thecircumstances. Evidence that the training or

lack thereof, was unreasonable or recklesswould have to be attested to in court. Whodetermines, then, the standards forappropriate training techniques under a setof circumstances? Content experts such asprofessional trainers, consultants, and lawenforcement or corrections officersthemselves would be called upon. Forexample, there may be differences in

trainingcourses

and theseindividualswould havevaryingopinions asto whichtrainingcourses

were best. Summarily, the reasonablenesswould depend on a variety of factors suchas the testimony of the expert, specific factsand circumstances of each case or the

jurisdiction.

The standards for certification aredetermined by those who sit on theirboards. Do they consist of civilians,attorneys, administrators or city governmentor are they content experts, lawenforcement officers and public safetytrainers? The standards of what iscompetent and reliable training are largelycontrolled by the certifying bodiesthemselves.

Does it matter from which certifyingorganization instructor-training is received?While many instructor-schools have training


27




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that does not conflict with state P.O.S.T. ornon-P.O.S.T. commissions, theoretically,liability would not rest on whetherinstructors came from a certifyingorganization. The question would be the

quality of the training and whether it wasrecognized in the field as reasonable underthe circumstances. An instructor oradministrator, however, would also want tomake sure that the organization offeringinstructor training had comparable and non-conflicting training standards as thoseoffered in similar instructor schools in orderto reduce the risk for liability and theargument that the training wasunreasonable. For example, is an essay-

style examination enough to qualify one asa “trainer”? Is law enforcement experiencealone, without commensurate specializedinstruction, testing or education enough toqualify one as trainer or “expert”? Theanswer to these question are found onlythrough a generalizable, affirmativerecognition by other trainers and certifyingbodies regarding what is commonplace andacceptable as certification.

Causation. Causation is the linkbetween the conduct of the officer and theresulting harm. In applying this element toour hypothetical situation, the plaintiff wouldtry to prove that the trainer’s instruction (orlack thereof) was the cause for harm.Causation asks, “but for the trainer’sinstruction (or lack thereof), would this harmhave resulted?” An instructor defendinghimself or agency against a lawsuit wouldhope that despite their instruction, the harmwould have resulted anyway. Although thisquestion might only be answered basedupon the specific facts, previous discussionregarding foreseeability demonstrates thatproving that the instruction was the causeis, in indeed, difficult.

Damages. Lastly, damages are theresulting harm suffered by the plaintiff.Damages can be upon a person or propertyand be both physical and emotional. Such

harm may include injury or death, medicalexpenses, pain and suffering, loss ofcomfort, loss of society, humiliation, loss ofincome or loss of expenses for propertydamage. A court presiding over thenegligence claim must have a standard forwhich to measure the instructor’sblameworthiness. Typically, a standard innegligence claims is the failure to exercisereasonable care under the circumstances,however, some jurisdictions apply a higher

standard for which to assess conduct. Thishigher standard is termed “grossnegligence” and is typically defined asacting with reckless disregard to theconsequences of one’s actions. The grossnegligence standard forces the plaintiff toprove a higher level of blameworthiness onthe part of the instructor. Instead of merelyproving that the trainer acted carelessly orunreasonable under the circumstances, theplaintiff must prove that the instructor wasreckless in their training. Obviously, theinstructor would want their jurisdiction toapply the higher standard of grossnegligence because this is more difficult tomeet. The court in the specific jurisdictiondefines the standard that must be applied inthe liability area. If this situation has nevercome up before in the jurisdiction, the courtwill have to determine what the standardwill be as well as to all future cases with thesame kind of claim.

Here are a few suggestions for use offorce instructors to help minimize their riskfor tort liability:




29

• If providing in-house training to fellowofficers, design training adequate to thetasks performed by officers in theagency on a regular basis;

• Develop course outlines, goals,

learning objectives, and means ofassessing the learning objectives. Keepupdated course outlines and materialsas changes develop in the law andtraining content;

• Offer updated training on a regularbasis;

• Continue your own training on a regularbasis, even if this is not required andeven if it is only a refresher course.Keep a record of all training you have

received. It is beneficial to keep thecourse training announcement with thedates, instructor(s), accreditingagencies and the training and methodsused to instruct you.

If you have trained to be an instructorthrough a certifying program, it is beneficialto keep copies of their policies. Thisinformation will provide data on trainingsources they approve or accept as well as

their credentials and standards. If yourtraining is done through an organizationthat does not “certify”, keep any materialthat describes their mission and goals, theirmeans of accomplishing goals andinformation on their standards.

References

Graham v. Connor , 490 U.S. 386, 109 S.Ct. 1865, 104 L. Ed. 2d 443 (1989).

Suggested Legal References forAdditional Reading

Liability

42 U.S.C. Section 1983Bivens v. Six Unknown Federal Agents

Training

City of Canton (OH) v. HarrisGraham v. Connor (1989)Valdez v. Abney (1986)Whitney v. WardenOwens v. Haas (1979)Hays v. Jefferson County, Kentucky (1982)

Brian A. Kinnaird is the Director of JusticeStudies at Fort Hays State University inHays, KS. He is also an author, police

trainer and consultant in the field of use offorce and defensive tactics. A former lawenforcement officer, Dr. Kinnaird is acharter member of ILEETA.




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En Banc Ninth Circuit Revises the Definition of “DeadlyForce” Under Civil Rights Laws

Police K-9 Bite Might Constitute Deadly Force Under Rule Announced

by

Michael P. Stone

The United States Ninth Circuit Court ofAppeals recently re-defined the term

“deadly force” to be applied in civil rightscases brought under Title 42, United States Code , §1983 (“42 USC §1983").

In Smith v. City of Hemet , 394 F.3d 689(9th Cir. 2005) an en banc Ninth Circuitpanel of 11 Circuit judges overruledrecently-applied precedent in this Circuit(Vera Cruz v. City of Escondido , 139 F.3d659 (9th Cir. 1998) by a margin of eight tothree.

This case featured two separate issues:(1) The use of a K-9 as “deadly force” and(2) whether Smith could present claimsunder §1983 after he was convicted in acriminal court for violating Penal Code §148(a)(1) for willfully resisting, delaying, orobstructing a peace officer in theperformance of his duties.

We shall examine the “deadly force”

issue first, and employ the factualbackground taken directly from the opinion:

The facts of the encounter between Smith and the police are not seriously

disputed. To the extent that there is a difference between the parties,

however, we look to the version most favorable to the plaintiff, the non- moving party. On the night of August 26, 1999, Smith’s wife placed an emergency phone call to the Hemet Police Department (“Department”)reporting that her husband “was hitting her and/or was physical with her.” Mrs. Smith informed emergency personnel that her husband did not have a gun, there were no weapons in

the house, and he was clad in his pajamas. Officer Daniel Reinbolt was the first officer to arrive at the house in order to investigate the incident. He observed Smith standing on his front porch and “noticed Smith’s hands in his pockets.” The officer announced himself and instructed Smith to remove his hands from his pockets.Smith refused, responding with expletives and directing Officer

Reinbolt to come to him. Officer Reinbolt informed Smith that he would approach, but only after Smith removed his



hands from his pockets and showed that he had no weapons. Smith again refused to remove his hands from his pockets and instead entered his home.

After Officer Reinbolt advised dispatch of what had transpired, Smith

reemerged onto the porch with his hands still in his pockets. Officer Reinbolt again instructed Smith to show his hands. Smith complied with his instruction, but then refused to follow an order to “put his hands on his head and walk towards [the officer’s] voice[.]” Instead, Smith again asked Officer Reinbolt to approach and enter the home with him.

Officer Nate Miller arrived in response to Officer Reinbolt’s radioed request for assistance. Observing Smith’s refusal to cooperate with Officer Reinbolt, Officer Miller contacted dispatch to request additional assistance, including a canine unit.Officer David Quinn, a canine handler with the Department, arrived shortly thereafter with “Quando,” a police canine. Officer Aaron Medina also

responded to one of the assistance calls.

*694 Officer Quinn instructed Smith to turn around and place his hands on his head. Smith again refused to obey the order, despite being informed that Quando could be sent to subdue him and might bite. Without further warning, Officer Quinn sprayed Smith in the face with pepper spray. Smith

responded with expletives and attempted to reenter his residence,but the door had been locked by Mrs.Smith. Several more officers then moved onto the porch, grabbed Smith from behind, slammed him against the door, and threw him down on the porch; Officer Quinn ordered the canine to attack him. Quando bit

Smith on his right shoulder and neck area. At some point, either before or after the order to attack, the dog sank his teeth into Smith’s arm and clung to it.

With at least four officers surrounding him and Quando’s teeth sunk into his

shoulder and neck, Smith agreed to comply with the officers’ orders and submit to arrest. Although Smith submitted, he admits that he was “curled up” in a fetal position in an attempt to shield himself from the dog and that one of his hands was “tucked in somewhere,” still out of the officers’ view. As one of the officers attempted to secure both arms, Quando was instructed by Officer Quinn to bite

Smith a second time; this time the dog bit Smith on his left side and shoulder blade. Upon Officer Quinn’s order,Quando ultimately retreated, and the officers dragged Smith off the porch,face down. Once off the porch, Smith continued to shield one of his arms from the dog’s attack. Officer Quinn then ordered Quando to bite Smith a third time. This time, the dog bit into Smith’s buttock. While all this was

transpiring, Smith was pepper- sprayed at least four times, at least two of which sprayings occurred after the police dog had seized him and broken his skin, and at least one after the officers had pinned him to the ground.

Eventually, the officers secured the handcuffs on both of Smith’s arms.Officer Reinbolt then washed Smith’s

eyes out with water from a nearby hose, but did not cleanse the wounds he received as a result of the dog bites. Paramedics arrived shortly thereafter and attended to Smith’s injuries.


31



Smith pled guilty in California Superior Court to a violation of California Penal Code §148(a)(1).

Since the 1989 Supreme Court decisionin Graham v. Connor , 450 U.S. 386, it isclear that claims of excessive force in§1983 cases are analyzed under the Fourth

Amendment, where the force is used toeffect an arrest, overcome resistance, orprevent escape. The standard applied iswhether the force used was “objectivelyreasonable” from the standpoint of areasonable officer in the same or similarcircumstances.

On the other hand, in another U.S.Supreme Court case, Tennessee v. Garner ,471 U.S. 1 (1985), the Court held that an

officer may not use deadly force toapprehend a person, “unless it is necessaryto prevent escape and the officer hasprobable cause to believe that the suspectposes a significant threat of death orserious physical injury to the officer orothers.” Id. at 471 U.S. 3.

In the Ninth Circuit, following Vera Cruz, supra , the rule has been that “deadlyforce” means “force reasonably likely to

kill.” Arguably, controlled use of a K-9service dog to bite a suspect is not“reasonably likely to kill.”

But in Smith , the en banc panel seizedthe opportunity to re-visit Vera Cruz, andultimately, to overrule it, substituting in itsplace a new definition of “deadly force”:“...whether the force employed creates asubstantial risk of causing death or seriousbodily injury.”

The Court reasoned that this definitionbrings the Ninth Circuit “into conformity withthe other (seven) circuits” that haveadopted this standard 394 F3d. at 705.

The Court stopped short however, offinding that the use of Quando in this case

constituted deadly force, and remanded theissue to the District Court.

Nothing of course in the law prohibits the use of deadly force in appropriatecircumstances. However this case, byredefining deadly force to include thecreation of a “substantial risk of causing

death or serious bodily injury” will likelyexpand the range of force applications thatwill be considered “deadly”.

The three dissenters noted thatQuando’s teeth had been previouslycapped and were incapable of inflictingdeep puncture wounds, and that Smith’sbite injuries were superficial and did notrequire any treatment beyond cleaning thewounds.

The other issue decided by the Courtwas whether Smith’s §1983 suit was barredby the rule in Heck v. Humphrey , 512 U.S.477 (1994). There, the Supreme Court heldthat a §1983 suit is barred if successfulprosecution of the §1983 claim(s) wouldnecessarily imply the invalidity of a statecourt criminal conviction. Put another way,if the plaintiff suffered a state conviction of acrime, say Penal Code §148, suing the

police for the use of excessive force inovercoming the plaintiff’s resistance toarrest would necessarily call into questionthe validity of the conviction, since if theofficers were using excessive force, thenthey could not also be engaged in theperformance of their duties – a necessaryelement of §148. So, if the conviction for§148 is final, then a claim under §1983 forthe use of excessive force would benecessarily foreclosed by virtue of the valid

conviction of §148.


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Smith does not dispute this rule.However, the judges held that Smith couldmaintain a §1983 excessive force claim forany force used on him after he quitresisting. This is of course a highly fact-oriented analysis, to determine whetherexcessive force was used after the conduct




33

of Smith that constituted the crime under§148.

Trainers, experts and force policywriters will need to take this new definitioninto consideration when training officers inuse of force, particularly with regard tocontinuums and policies that focus on the

intermediate to deadly force options.

Policies on use of force should be reviewedto determine how this new definition mightlead to liability issues when it issuperimposed over existing policies whichsimply employ the term “deadly force.”

Stay Safe!

“Search and Seizure” Parole Term Doesn’t NecessarilyMean What It States

Ninth Circuit Holds That Even Parolees Subject to “Search and Seizure” have Fourth Amendment Rights

by

Michael P. Stone

We are all accustomed to encounteringparolees and probationers who, as a termand condition of their supervised freedom,are subject to “search and seizure.”

What this really means is that theparolee’s or probationer’s person, propertyand residence may be searched at any timeby a parole agent or probation officer, or bya peace officer, without a warrant. We arealso accustomed to believing that such aterm and condition of supervised releasevitiates any requirement that police (orparole or probation) secure a warrant priorto a search or otherwise worry about the

Fourth Amendment. We may conclude thata parolee or probationer who is subject to“search and seizure” has no FourthAmendment protections.

But a recent Ninth Circuit case, Moreno v. Baca , ___ F.3d , 2005 WL517851 (9TH Cir., March 7, 2005), shows the error in

assuming that the Fourth Amendment doesnot protect parolees and probationers, eventhose with “search conditions” attached totheir freedom.

The opinion holds that officers musthave, at a minimum, a “reasonablesuspicion” of criminal activity and that theparolee or probationer is involved in thatactivity. Without at least that, the detentionof a probationer or parolee is an unlawfulseizure at the outset; and the subsequentdiscovery that the person is on parole orprobation and subject to “search andseizure”, does not transform an unlawful

seizure into a lawful detention.

Deputies spotted Moreno in a “highcrime” area walking at night. He was“startled” and “nervous” when the deputiesapproached. He was detained andsearched. Then it was determined that hewas on parole, subject to “search and




34

seizure”, and that he had an outstandingwarrant. The deputies also claimed hetossed a baggie of rock cocaine when theyapproached. He was acquitted ofpossessing the cocaine, and sued under 42USC §1983, claiming that the initialdetention and search violated the FourthAmendment.

The Court found that the deputies didnot have a reasonable suspicion necessaryto justify their detention and search ofMoreno – mere “nervousness” coupled withpresence in a high crime area wasinsufficient to warrant the detention.Moreno disputed that he dropped or tossedany contraband. The subsequent discoveryof the parole condition and warrant,unknown to the deputies at the outset of

their detention of Moreno, could not justifythe stop at its inception, because thesefacts were discovered after the stop.

So, the rule of this case is simplystated: Even though a parolee orprobationer is subject to “search andseizure” without a warrant as a condition of

his/her supervised release, any detention ofthat person must initially be justified by areasonable suspicion that the person isinvolved in some kind of criminal activity.Subsequently learned facts will not turn anunlawful detention into a reasonable one.Rather, the focus is on what the officersknow or perceive at the time of the initialstop.

Stay Safe!

Confronting the Code of Silence:When Excessive Use of Force Occurs.

by

Neal Trautman, Ph.D.

Overview

The Code of Silence is the principlethat an officer will not provide adverseinformation against a fellow officer. It is alsoknown as the blue wall of silence and bluecurtain. The phenomenon commonlyreferred to exists within virtually allorganizations, for it refers to the bond ofloyalty.

It is natural and expected for peoplewho spend considerable time together,have the same responsibilities or sharesimilar adversities to become loyal towardeach other. The challenge that has neverbeen achieved and validated is to be ableto mold the culture of a workplace to whereloyalty to honor and integrity truly becomes

more important than peer pressure andloyalty to another person.

A year long review of relevant researchrelated to the code of silence confirms thatrelatively little research exists.1 That whichhas been conducted has resulted fromcommissions convened after a substantialscandal occurred. The law enforcementprofession has totally neglected this subjectas the focus of scholarly investigation.Although it is regrettable that a matter ofsuch importance has been the subject of solittle national study, there are severalreasons why the absence of pertinentresearch is both understandable and

1Allyson Collins, Shielded From Justice, Human Rights

Watch, New York, NY, 1998, 108-110.




35

logical. The fundamental reason there hasbeen so little research that has yielded dataabout the experiences of officers is thatofficers don’t want to cooperate. Sinceemployees do not wish to communicateabout the misconduct of other workers, theprobability that they would care tovoluntarily participate in research that

analyzes their refusal to communicate isunderstandably low.

In his paper “The Blue Wall of Silence:An Ethical Analysis,” Kleinig criticizes theMollen Commission, stating “My complaintabout the Mollen Commission, and anumber of other inquiries into police culture,is that you cannot affirm the loyalty thatpolice have for each other without alsoaffirming a code of silence.” In other words,

the code of silence and deep-seated bondsof loyalty among officers, are complex,interwoven and inseparable. Just as thesame affiliations grow within the personalrelationships of family members, closefriendships and teammates in sports, loyaltytoward each other is a legitimate, naturaloccurrence.2 To deny the code’s existenceis just as illogical as denying the presenceof loyalty among officers, for you will nothave one without the other.

If an officer elects to “blow the whistle”on his own team, it is virtually certain thatothers in the workplace will view him asdisloyal. Having been torn between aloyalty to fellow employees and theadministration versus a loyalty to valuedprinciples, the whistle-blower has chosen tobe loyal to his values, rather than people.3 Unquestionably, this is a decision thatalmost always causes his ostracism, but his

dignity and self-respect remains intact.

2 John Kleinig, The Blue Wall of Silence: An Ethical

Analysis, a paper presented at the Fortunoff

Collquium, the New York University, 2000, page 9.

3 Tom Beauchamp and Norman Bowie, Ethical

Theory, Prentice-Hall, New Jersey, 1983, 263.

It should not be a priority of lawenforcement or any other profession tomold a culture of whistle-blowers, for theturbulent consequences of whistle-blowingfor minor indiscretions is often more harmfulthan the violations publicized. Instead, thegoal must be to establish and perpetuate a

culture that constantly analyzes to whom orwhere the loyalties of workers arecommitted.

When the highest loyalty of employeesis to fellow employees, an educatedadministrator will then know that adestructive element of the code of silence ispresent within their agency. If they arecommitted to integrity, the leader can thenconduct an integrity needs assessment to

identify what is causing officers to be moreloyal to each other, than traditionallyhonored values.

Recruits, the Use of Force and the Codeof Silence

Twenty-five basic law enforcementacademies from sixteen states helped meconduct research by administering andcollecting 1,016 questionnaires during a

sixteen-month data collection phase ofFebruary, 1999, through June, 2000. Thegoal was to determine the views of newofficers about the code of silence. Here is asummary of the findings.

I think the code of silence is morejustified when an incident of excessiveforce involves a suspect who is arrogantand abusive.

Strongly agree 29

Agree 194Disagree 533Strongly disagree 159

Of the 915 recruits who answered thisquestion, 223 or 24% agreed or stronglyagreed that they think the code of silence ismore justified when an incident of




36

excessive force involves a suspect who isarrogant and abusive.

Because the bond of loyalty amongofficers is so important, I don’t reallybelieve anything is wrong with lying toprevent another officer from getting introuble.

Strongly agree 12Agree 61Disagree 628Strongly disagree 315

I would participate in the code of silenceif other officers threatened me.


I would tell on another officer forregularly smoking marijuana off duty.


I would be more likely to participate inthe code of silence if my supervisor andthe administration of my department

treated employees with great disrespect.Strongly agree 21Agree 223Disagree 618Strongly disagree 155

I would probably ignore the fact that Isaw another officer steal something if Iknew he or she was going through adivorce and had severe financialproblems.


Research Excessive Use of Force (other than lethal)

and the Code of Silence

The goals of this research were to:

1. To serve as a needs assessmentupon which effective training may be

developed;

2. Determine if the code of silenceexists in law enforcement;

3. Determine what factors within theorganizational culture of lawenforcement agencies influenceofficers to conceal the misconduct ofother officers;

4. Develop conclusions andrecommendations upon whicheffective, viable recommendationscan be made.

Sampling Profile

The surveys were administered toeighty-one different small groups ofparticipants during a sixteen-month datacollection period of February, 1999, throughJune, 2000. The sampling was not totallyrandom, in that the officers who were askedto participate were receiving ethicsinstruction from the National Institute ofEthics. The study was conducted by theNational Institute of Ethics. The samplingwas comprised of 2,657 fulltime officers. Atotal 1,116 of the 2,657 officers asked toparticipate, did so. This equates to aresponse rate of 42 percent. I was theprimary researcher.

In response to the statement, “Pleasedescribe the first time you witnessedmisconduct by another employee but tookno action,” 532 or 46 percent of the 1,157who completed a survey stated they hadwitnessed misconduct by anotheremployee, but took no action. In varyingdegrees, they provided details surrounding




37

the circumstances, on the surveyinstrument.

Incidents of Excessive Use of ForcePrompted the Most Dishonesty

The types of incidents that promptedofficers to take part in the code of silence

have been divided into five separatecategories: anger, lust, greed, peerpressure and other. The frequency of eachcategory, ranked from most to leastcommon, is:

Anger

Anger was the most frequent incidentover which the code of silence occurs. Outof the of the code of silence, 217 were

excessive use of force circumstances.Officers who withheld information about aanger related incident of misconductadmitted the reasons that they participatedin the code of silence. The following is a listof their thirty different perceivedconsequences that motivated them toconceal what they knew about corruption.The corresponding numbers designate howmany times a specific suggestion wasmade. They include:

1. I would be ostracized - 862. The officer who committed the

misconduct would be disciplined orfired - 40

3. I would be fired from my job - 324. I would be “blackballed” - 275. I would no longer be “backed up” on

calls - 216. Administration would not do anything

even if I reported it - 17

7. I would be the victim of some type ofretribution - 118. It is unknown - 119. No answer given - 1110. There would be no investigation - 1011. I am afraid to reveal the incident - 912. I would feel empathy or sympathy for

the officer I turned in - 813. I did reveal the accident - 7

14. It would be very difficult to work withthe officer(s) who committed themisconduct - 7

15. I would be disciplined - 716. I would be made to be miserable - 617. I would be told to keep quiet about

the incident - 618. The officer who committed the

misconduct would be arrested - 519. The officer who committed the

misconduct would resign or changeassignment - 5

20. My family would be threatened - 521. I think the officer would be railroaded

or somehow be treated unfairly - 422. I think that I would be railroaded or

somehow treated unfairly - 423. I would be persuaded by my peers

that no inappropriate action occurred

- 424. I would never reveal the incident - 425. Answer is not appropriate for the

question - 426. I would be killed - 227. I would probably be persuaded by

my superiors that nothinginappropriate occurred - 2

28. I would be afraid of civil litigation - 229. I would have to quit and move away

- 1

30. I’d be forced to change careers - 1

Anger Related Incidents

Of the 532 officers who stated they hadtaken part in the code of silence, a total of217 were primarily motivated by anger. Thefollowing is a list of their forty-nine differentsuggestions for how the code can becontrolled. The corresponding numbersdesignate how many times the specific

suggestion was made. They include:

1. Furnish more ethics training. It mustbegin with the administration of thedepartment - 23

2. Expose it and let anyone whoparticipates “pay the price.” Beaccountable - 11




38

3. Every department should have ananonymous reporting system - 7

4. The entire profession must havezero tolerance for this misbehavior -5

5. Better hiring of recruits and continueto enforce ethics - 4

6. Open door policies that allow upward

communications would be atremendous help - 4

7. Good department standards have tobe developed - 3

8. I’m not sure - 39. Communication within the

department has to be improved - 310. An emphasis has to be placed on

team play, group awards andrecognitions - 2

11. You can’t control it or stop it - 2

12. A change in laws to make theincident/crime more severe andthere so less likely to occur as often -1

13. Lead by example - 114. Have diversity in workplace: male,

female, black and white, civilians andinterns -

15. Be fair with citizen complaints,because many are unreasonable.Maybe officers wouldn’t be on

defensive as much - 116. Don’t know. I think it is a moral/value

issue at personal level - 117. This is a tough question. With the

way the citizens attack the police (bycomplaints, etc. not physical) and thefrustration of the court system,although not ethical, as long asthings do not go too far force may beOK - 1

18. This is not to say that I agree that a

cop has free reign to do anything

he/she wants, but sometimes “street justice” seems to be appropriate - 1

19. This is a philosophy. How could youchange or control a philosophy? Thismust be changed from the on-set,with new recruits. At the same timegetting rid of the dinosaurs will benecessary - 1

20. Strict and rigid control by supervisorsis the best way to control the code ofsilence. 1

In the final analysis, the findings of thisstudy reveal that not only is the code ofsilence prevalent, incidents of excessiveuse of force prompt officers to lie and takepart in the code of silence more than anyother type of misconduct. Consequently,every use of force trainer has an obligation

to look for evidence of officers falsifyingreports or lying during use of forceinvestigations. Furthermore, all of us musthave the courage to step forward andconfront those who encourage orparticipate in “cover ups.”

Failure to do so says a lot aboutsomeone’s character and whether they aretruly loyal to the principles for whichthousands of good cops have died. We

must always be more loyal to honor andintegrity, than to another person.

Neal Trautman is the Director of the non-profitNational Institute of Ethics. He has authored 12published books, made 67 conferencepresentations and conducted over 600ethics/leadership seminars. He chaired the IACPEthics Training Committee, and co-chaired theIACP Police Image and Ethics Committee. Hecan be reached at [email protected].





OFFICER SAFETY UPDATES

Wrist Sweatband Concealment

Officers in the Milliken (CO) P.D. recently contacteda juvenile female runaway.

During the contact the female wouldn’t allow officersto scrutinize her wrist sweatband (shown at left).Due to her behavior officers removed the wristbandand found a utility knife blade concealed inside thefabric.This juvenile female was rumored to be a “cutter”but it was felt that this information was a significantofficer safety issue and needed to be shared. Onceagain – don’t ever take anything for granted andsearch those in custody or detained with this type ofobject in mind.

Milliken (CO) P.D. via 4’05 R.M.I.N. Bulletin

Handcuff Escape Method

Recently the Kern County Sheriff's Department in Bakersfield CA. experienced a securitythreat. While inmates were being held in a local court holding facility, they were able to escapefrom their locked handcuffs.

To facilitate their escape they used the round lip that is located on or around the spout of thedrinking fountain section of the jail sink. They used the lip to pry open the handcuffs and popout the pin that holds the handcuffs together.

This information was provided courtesy of Lieutenant Ron Bertrand, Kern County Sheriff's Department.


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Hidden Compartment in Shoe

The shoe is an Adidas Tracey McGrady basketball shoe. These shoes do not have shoe laces.There is a special device that can be tightened to give a snug fit, thus replacing the shoe laces.The snap on the back opens up a compartment that holds the special key to tighten andloosen the shoes. As shown, a handcuff key can be easily concealed inside the compartment.Removal of the special tightening key would allow more space.


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ILEETA Update

by

Ed Nowicki, ILEETA Executive Director

CONGRATULATIONS!!! Lt. HowardRahtz, the editor of The ILEETA Use of Force Journal , has managed to fill thisissue with great information relating to theuse of force. The feature articles andregular columns contain information that isassembled only in this periodical.

The 2005 ILEETA Conference was justcompleted and it turned out to be a veryspecial event. There were sixteen separateinstructor certification courses, most relatedto the use of force. In addition there weremany classroom topics that focused on theuse of force. If you are concerned withuses of force issues, you would be hardpressed to find a conference with so manyofferings.

There was never a law enforcementinstructor conference held with the scopeand magnitude of the 2005 ILEETA

Conference. Think about it, sixteenseparate instructor certification courses andtwo armorer certification courses. Plus, over40 other topics presented by some of theworld's most well-known and respectedtraining professionals. We also stoppedaccepting registrations at 500, which keptthe integrity of ILEETA intact. ILEETA isabout the members, not the money!

As good as the 2005 ILEETA

Conference was on all fronts, there's nodoubt that the 2006 ILEETA Conference willbe an even greater conference. We'redoing all we can to expand the areas wherewe were successful, and to add even moreto the quality and integrity of the 2006Conference. The 2005 ILEETA Conferencewas very special, and if you couldn't attend,

you missed being a part of this very specialevent.

We would like to build upon thesuccess of this year's ILEETA Conferencefor the 2006 ILEETA Conference. Basedon the feedback, it seems like we were ableto meet the needs of the ILEETA Memberswho attended the conference. (Yes, youMUST be an ILEETA Member to instructand attend the conference. This is, after all,an ILEETA Conference!) Unfortunately, wehad to stop accepting conferenceregistrations 10 days before theconference, when we reached 500.

The 2006 ILEETA Conference will addadditional sessions with up to 12 trainingsessions running simultaneously. TheInstructor Certification Courses andArmorer Courses were very popular thisyear, and we actively seek proposals in

both of these areas for ‘06. These coursesshould be eight hours or less in total length.These can be in any area, although our2005 Conference Instructor CertificationCourses dealt mainly with force relatedareas - WE WANT TO ALSO INCLUDEOTHER AREAS!! Instructor certificationprograms could include written and/orcompetency testing. We will offer as manyinstructor/armorer certification courses aspossible, but our conference will never be a

certification mill.

We also want proposals that can helpas many of our members as possible, butyou MUST remember that the focus of thistraining is the instructor - this is imperative.We'd like proposals on topics related to:managing the training function; PowerPoint




42

usage - basic and advanced; using digitalphotos, video and animation; instructionalresearch methods, including the Internet;presentation design and delivery skills; E-Learning issues and implementation;training simulation design; Instructionalethics and image; whole brain teaching andlearning; the instructor as a leader; use of

force and related areas; legal issues andupdates; certification issues; how to marketyour training program; professional writingfor trainers; how to be a training officer;and, any other relevant topic that has aninstructor focus. Be creative!

You now have an opportunity to attend,for what will surely be, an even greaterconference: The 2006 ILEETA Conference.Keep in mind that we can onlyaccommodate 600 participants. Any morethan 600 participants will take away fromthe quality and integrity of what this

conference is about, which is our membersand not the money. So, start planning nowfor April 25-29, 2006, in Arlington Heights,IL, when only 600 ILEETA Members willattend a very special event: the 2006ILEETA Conference!

The ILEETA Use of Force Journal

is a FREE publication and one of thebenefits available to ILEETA members.

PLEASE help promote ILEETA!

The International Law Enforcement Educators and Trainers Association (ILEETA) membershiphas grown to over 2,000 members and it continues to grow at an even more rapid rate. If youare a law enforcement educator or trainer, i.e., an instructor, you will most definitely want to

join ILEETA. Check out www.ileeta.org . Wondering about the benefits of being an ILEETAmember (aside from the ability to interact with many of your fellow law enforcement trainers)?We’re adding more all the time! Here’s what we offer for only $45 yearly ($40 renewals),outside of the USA dues are $55, and $50 renewal.

FREE subscription to ILEETA’s official quarterly periodical, The ILEETA Digest which is sent to all members in two separate ways, via US Mail and via e-mail.

,

" basis.

.

.

.

FREE subscription to The ILEETA e-Bulletin , which is periodically sent tomembers via e-mail and includes either late breaking information or other useful

or timely information on an "as needed FREE subscription to The ILEETA Use of Force Journal

FREE subscription to Law and Order Magazine

FREE subscription to Police and Security News

http://www.ileeta.org/





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.

.

.

r

.

FREE subscription to Police Magazine FREE subscription to Law Officer (First Issue July, 2005)

FREE subscription to Presentations Magazine (Based on Qualifications)

FREE one-year membership in the American Women's Self Defense Association

Access to the “Members Gateway” on the ILEETA Web Site which includes ove

500 FREE PowerPoint Programs and “tons” of other FREE information fordownloading, including a New "Royalty Free" photo library.

Discounted subscription to American Cop Magazine (First issue to be published inSeptember, 2005).

Discounted subscription to Canada's Blue Line Magazine Numerous training program and product discounts from ILEETA’s Corporate

Sponsors and others (more being negotiated all the time).

Don’t wait – Recruit ILEETA Members Today!!

Just go to the ILEETA web site and download the ILEETA membership application at:www.ileeta.org/Membership_Application.htm. There is also an ILEETA Membership

Application at the end of this issue of The ILEETA Use of Force Journal .

That’s it for this issue of The ILEETA Use of Force Journal . As previously mentioned, wecannot respond to all of your e-mails, but we will definitely read each one. We actively solicityour suggestions and comments. Good, bad or ugly, please let us know what you think aboutthis issue. Remember, we DO NOT edit the submissions to us, so the opinions may notnecessarily reflect those of ILEETA. We also DO NOT edit the composition or spelling of thecolumns or articles submitted to us, since, unfortunately, we have neither the time nor thefinancial resources to do so. If you have specific comments about any column, please contactthe author directly. If your comments are of a general nature, contact Howard Rahtz, Editor ofThe ILEETA Use of Force Journal at [email protected].

Don’t forget to check-out the ILEETA web site at www.ileeta.org If you are an ILEETA

Member, you’ll have access to over 500 PowerPoint Programs for FREE, and all previousissues of The ILEETA Use of Force Journal , dating back to 2001. There is also plenty of otherinformation in the “Member Gateway” area of the ILEETA web site, which is for ILEETAmembers only.

http://www.ileeta.org/Membership_Application.htm





http://www.ileeta.org/Membership_Application.htm



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