Judging Law Enforcement Use of Force

I know it's in the news often, even as little as I watch the news anymore.  Everyone has an opinion and the main stream media focuses on the bad.  It's what sells advertising because it gets people all worked up and they keep watching.  So, what is it that the average person, and even some in law enforcement, don't understand about use of force?  Why is it that these police officers are getting found not guilty?  It's not complicated.  It's based on a Supreme Court Decision called Graham V. Connor. 

Graham held that determining the "reasonableness" of a seizure "requires a careful balancing of the nature and quality of the intrusion on the individual... against the attempt at "countervailing" and under the guise of governmental interests, being at stake." These rights of which, are well documented, and established, of the people, by the people, and for the people, of the United States of America. It acknowledged, "Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." However, it then noted, "Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, “the test's" proper application requires careful attention to the facts and circumstances of each particular case."

The Court then outlined a non-exhaustive list of factors for balancing an individual's rights and an officer's: "the severity of the crime at issue," "whether the suspect poses an immediate threat to the safety of the officers or others," "whether he is actively resisting arrest or attempting to evade arrest by flight."

The Graham Court cautioned, "The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It also reinforced, "As in other Fourth Amendment contexts... the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."

The Court rejected the notion that the judiciary could use the Due Process Clause instead of the Fourth Amendment in analyzing excessive force claims: "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims."

This reasonable officer standard has been defined as what an officer with similar knowledge skills and experience would find to be reasonable under the same circumstances.  Not what a civilian sees a reasonable.  Not what the media sees as reasonable.  This is why, after the defense has presented it's expert witness on use of force and the prosecution has presented it's expert witness on use of force, the jury is left to evaluate it under the instructions of this standard.  They have all the information, from both sides, to determine the facts of the case.  And given this, that is why many of these cases are being adjudicated not guilty.

If you are reading this as a probation officer, you may ask how it applies to you.  As a probation officer, this means that when looking at the Graham factors, you should write your report as to describe the totality of circumstances, and why you used force. Additionally, you want to avoid boilerplate language when writing your report.  You do want to insure that the use of force is described as it applies to your departmental policy, as long as it is an honest description.  You need to describe what you saw and felt and why you decided to use any particular force option.  Write a thoroughly descriptive story describing what happened, because you may have to defend your actions under Graham in court.


Stay safe!!

P. O. Doe

#probation

#probationuncovered

Twitter - @PODoe2015
Facebook - https://www.facebook.com/probationuncovered/
Email - probationuncovered@gmail.com

Why should probation officers get a law enforcement type of retirement package?

It’s just not fair that probation gets a safety retirement!  I’m sure you have heard the old saying “if I had a nickel for every time (insert witty, sometimes arrogant remark here)”! Well, here it comes again.  If I had a nickel for every time someone said how lucky I am to be being able to retire at age 50 (or 55 or 57, now depending on the pension reform and your employers version) I usually respond with a smile and patronize them with ”you’re right, I’m lucky”.

After that, I continue the conversation but fall into my own thoughts at the same time.  Initially my brain jumps right to “idiot” or “moron” or “did they really say that or are they just being an a$$hole”? This all happens within a matter of seconds. As I walk away, my own self-doubt creeps into the logical side of my brain and wonders.  Am I lucky to retire at such an early age? Do I deserve to retire at an age well before most are allowed to get their gold watch?

These thoughts quickly vanish as I contemplate the absurdity of these questions.

Here are just 4 reasons why probation officers get to retire “so young” and are (or should be if you are not!) considered safety or law enforcement category for retirement.

1. Stress

You would think that this one would be a no brainer. There are people out there that think they have stressful jobs.  Unless you are a police officer, front line combat grunt, air traffic controller or a sky-diving instructor, everyone else, please sit down.

“But you don’t know man, I’ve got deadlines and a lot of pressure on me at my job, why do probation officers retire before I get to?”

And I get that. I really do.  But, really?

I will spare everyone the same old “we face armed felons and don’t know if we are going home at the end of our shift mantra.”  That is a big part of the job.

It should be blatantly obvious to everyone. Oh and I’m quite sure if you screw up, or have a perceived screw up, at work it won’t cause the city you work in to riot or change your industries culture on a global level.  Does it happen often in our industry? Not really, but it hangs there in our minds.  Potentially affecting our decision making and slowing our reaction times. 

This applies to probation officers as much as police officers.  Where cops deal with all of the population, we deal with all of the people that cause them the most problems.  They are who we supervise.  We have to go to their homes, armed or not.  We have to hold them accountable, often by arresting them. 

Plus there is compassion fatigue.  It is draining working with the population that we work with.  Full of mental health issues, addiction issues, etc., this is a difficult population.  You have to allow yourself to open up and care about people to be effective at your job and this takes a heavy toll, regardless of how well you take care of yourself. 

2. Schedule

It sucks.  I’m not talking about the building rats (PO’s who never leave the building).  I’m talking about task force work.  You are always on call. 

I have worked days and nights, holidays, birthdays, elections, hurricanes, and high school plays. I have worked 30 hours without sleep and have come back to work 20 more with only a few hours of sleep in between.

While most PO’s never work in a task force, there are a lot doing shift work.  That takes it’s toll.

3. The uniform

While most probation officers don’t have a designated uniform, it is ridiculously uncomfortable wearing a protective vest and 30 pounds of law enforcement gear.  Whether it’s in a carrier/tactical outer cover and/or on a duty belt, it effects the way you sit, stand, and walk.  It creates injury. 

4. The exposure to unspeakable suffering

It eventually comes up.  You’ll get asked if you had ever seen a dead body. Other than your grandma at her funeral, most have not.  There are things in this world that humans are not meant to see or experience.

As mentioned from reason #1, law enforcement is a highly stressful and dangerous occupation.  New PO’s arrive in this profession with an eagerness that is almost unrivaled in any other job.  “I’m going to change the world, one probationer at a time”.

Until they see their first dead baby. Or they have a probationer murdered that they’ve been working with for months or years.  Or one of their co-workers or one of the police officers they work with in their community is murdered.

The seduction of becoming a probation officer and serving the greater good enables the new PO to overlook the inherent dangers and traumatic scenes that he or she may face or see.

As they become fully immersed in the law enforcement culture, the old life they had prior to becoming a probation officer begins to fade away. They are forever changed by the things they experience in the work we do.  It becomes harder to relate to the mundane realities of the lives of people that don’t work in law enforcement. 

 

I am definitely not the same person that I was when I started this journey into law enforcement as a probation officer.  I am jaded.  My filter isn’t the same as it was near the beginning of all this.  I don’t look at people the same way.  I sit with my back to the door, just in case.  And how many of you have an emergency plan for your family for dealing with potential problems with people you’ve supervised in public?  That surely isn’t something that those normally complaining about our early retirement have to worry about.

Stay safe!!

P. O. Doe

#probation
#probationuncovered

Twitter - @PODoe2015
Facebook - https://www.facebook.com/probationuncovered/
Email - probationuncovered@gmail.com