Ugly Police Force: Misunderstandings of Law & Human Factors
Videos of police officers using force. Police incidents involving citizens with mental illnesses. Social media instantaneously spreading opinions and public verdicts. The "no comment" policy in police media relations. This combination makes it virtually impossible to build community trust and understanding.
LAW
What is the law? The law is a collection of written documents that guide police procedure. It includes old yellowing papers such as the United States Constitution and Bill of Rights. It also encompasses modern statutes or regulations of the various states. But more practically speaking, law is the compilation of judges' opinions and interpretations. Judges and justices from all levels of our justice system (up to and including the Supreme Court of the United States) make rulings on questionable incidents of police activity as to whether the actions are lawful or not. This is called "case law."
Lawyers take facts, evidence, and statements from a disputed police event and argue right or wrong. Judges (or panels of judges) take this information and form an opinion. These opinions then become part of the living and breathing set of documents that further direct police procedure. Some decisions limit police powers; others empower the police. Unfortunately, for both police and public, this case law is extremely confusing and a relatively unstructured patchwork.
What seems to be misunderstood by the public is how the court systems view police events and how the judges accept certain compromises:
Another growing accommodation within our court system is an understanding of human factors.....
HUMAN FACTORS
What are human factors? Human factors is a term that includes human behavior, performance, brain function, sensory system, and memory. In times of stress, these various factors are either enhanced or diminished. It's part of being "human."
Police officers are not super-human (despite some cops believing so!). Police officers' bodies and minds are affected in the same way as everyone else in times of stress and danger. Here are a few common responses:
The human body is designed to change during stressful or dangerous situations. It's a survival mechanism that does not always mesh well with the complexity of the unfolding situation or the applicable law. The officer's brain and body are not functioning in the same way as the Monday morning quarterback reading the newspaper or watching the YouTube video. The officer is behaving more like the man who just witnessed his father collapse from a major heart attack, a woman trying to escape a house fire with her kids, or a teenaged driver shaken up from a bad car wreck.
"UGLY" FORCE
When force looks "good," no one ever questions it. But when it gets ugly, all the critics come out.
Some of the ugly law factors that add to the critique of police force can be:
Some of the ugly human factors that add to the critique of police force can be:
I am a man of many questions. And I fear that all the right ones are not being asked when police use of force looks awful. High profile shooting cases such as NYPD/Broadnaux (my blog post) and Ferguson/Mike Brown (my blog post) are two examples where I did not see many of the right questions being posed. This leads me to believe the police leaders, the citizens, and the media are unaware of these critical topics. This saddens me.
Where are the police leaders and media relations officers when these incidents appear (or ARE!) awful? Why aren't they explaining to the public what the law and human factor questions are that will be asked of the officers and of the incident as a whole? (It was ten days before I heard any of the Force Science studies being cited in relation to Ferguson!)
I'm not sure if the public and media expects immediate answers or not. But don't you think it makes sense to let them know that we as police professionals will be asking the right questions of our people, and our investigators will be contending with the applicable law and human factors? To me, this is a sure path to transparency, honesty, accountability, and ultimately...trust.
Conversely, (universally) police training does a very poor job of adequately teaching, testing for understanding of, and applying case law. Police training is also still very much behind the curve as it relates to the human performance aspects. There is science-based research that shows how to maximize situation analysis, decision-making, and performance in police officers knowing they will be experiencing physical, mental, and emotional adaptations during times of stress. That's a struggle we in police training and education circles continue to work on.
SUMMARY
Let me be clear. I am NOT advocating a blanket excuse for poor decision-making or excessive force. I make NO case that police officers should be given endless slack. Clearly, there are instances of wrongdoing. These officers must be held accountable for their decisions and actions. Police leaders and peers must speak out against these transgressions.
But just as loudly, when officers do the right things that appear ugly, these leaders and peers must open up and educate our citizens about the various factors, especially those that apply to the case in question. Few police force incidents are pretty. But often, the awful is in fact lawful. And necessary. And ethical. And just. We need advocates. And understanding. And trust.
The law and human factors are great topics to start the conversation.
I am amazed by the growth of four seemingly unrelated aspects affecting my profession:
- the number of video cameras capturing police officers' actions,
- the number of police contacts with persons with a mental illness in crisis,
- the power and speed of social media and the unreliability of its content, and
- the reluctance by police leaders to speak out openly about questionable incidents.
Each of these topics has a profound impact in law enforcement operations. But when taken together, it seems as though we in police work are doing everything wrong. While we surely have our bad apples and instances of poor judgment, this is far from the norm. Unfortunately, these bad officers and lapses in discretion unjustly multiply the effects of another category of police actions: Lawful but Awful. These otherwise justifiable and ethical actions appear ugly and unnecessary. And few police leaders are voicing our side.
The answer lays within two completely misunderstood issues of police force: Law and Human Factors.
The answer lays within two completely misunderstood issues of police force: Law and Human Factors.
LAW
What is the law? The law is a collection of written documents that guide police procedure. It includes old yellowing papers such as the United States Constitution and Bill of Rights. It also encompasses modern statutes or regulations of the various states. But more practically speaking, law is the compilation of judges' opinions and interpretations. Judges and justices from all levels of our justice system (up to and including the Supreme Court of the United States) make rulings on questionable incidents of police activity as to whether the actions are lawful or not. This is called "case law."
Lawyers take facts, evidence, and statements from a disputed police event and argue right or wrong. Judges (or panels of judges) take this information and form an opinion. These opinions then become part of the living and breathing set of documents that further direct police procedure. Some decisions limit police powers; others empower the police. Unfortunately, for both police and public, this case law is extremely confusing and a relatively unstructured patchwork.
What seems to be misunderstood by the public is how the court systems view police events and how the judges accept certain compromises:
- Police incidents can be chaotic, tense, confusing, fast-paced.
- Officers have to make split-second decisions with limited (or wrong) information.
- It's impossible for officers to be expected to be factually correct or all-knowing.
- Officers are only expected to be reasonable in belief.
- Officers can make certain mistakes.
- Officers cannot be held to information discovered after the fact.
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| Lou Hayes is available to speak at your event. |
Another growing accommodation within our court system is an understanding of human factors.....
HUMAN FACTORS
What are human factors? Human factors is a term that includes human behavior, performance, brain function, sensory system, and memory. In times of stress, these various factors are either enhanced or diminished. It's part of being "human."
Police officers are not super-human (despite some cops believing so!). Police officers' bodies and minds are affected in the same way as everyone else in times of stress and danger. Here are a few common responses:
- A person's brain loses analytical and cognitive function.
- His/her dexterity and motor skills change.
- His/her sensory system undergoes adaptations. (Read this essay if you've never experienced such on a daily basis!)
- His/her perception of time, distance, proximity, speed is altered.
- His/her reaction time can be affected.
- Overall performance tends to degrade.
The human body is designed to change during stressful or dangerous situations. It's a survival mechanism that does not always mesh well with the complexity of the unfolding situation or the applicable law. The officer's brain and body are not functioning in the same way as the Monday morning quarterback reading the newspaper or watching the YouTube video. The officer is behaving more like the man who just witnessed his father collapse from a major heart attack, a woman trying to escape a house fire with her kids, or a teenaged driver shaken up from a bad car wreck.
"UGLY" FORCE
When force looks "good," no one ever questions it. But when it gets ugly, all the critics come out.
Some of the ugly law factors that add to the critique of police force can be:
- The gun was a toy/BB gun/fake.
- The boy was Autistic.
- The woman was deaf/pregnant/Schizophrenic/etc.
- The man was unarmed.
- The man was in a wheelchair/handcuffed/elderly.
- The teenager was not the offender in the local crime.
Some of the ugly human factors that add to the critique of police force can be:
- Officer didn't hear information from family/teachers/friends.
- Officer didn't see his partner/bystanders.
- Officer fired "late shots."
- Officer fired a lot of shots (high volume of fire).
- Person was shot in the back.
- Officer made a sub-optimal decision.
- Officer used foul or degrading language.
- Officer testimony does not match physical evidence or video.
I am a man of many questions. And I fear that all the right ones are not being asked when police use of force looks awful. High profile shooting cases such as NYPD/Broadnaux (my blog post) and Ferguson/Mike Brown (my blog post) are two examples where I did not see many of the right questions being posed. This leads me to believe the police leaders, the citizens, and the media are unaware of these critical topics. This saddens me.
Where are the police leaders and media relations officers when these incidents appear (or ARE!) awful? Why aren't they explaining to the public what the law and human factor questions are that will be asked of the officers and of the incident as a whole? (It was ten days before I heard any of the Force Science studies being cited in relation to Ferguson!)
I'm not sure if the public and media expects immediate answers or not. But don't you think it makes sense to let them know that we as police professionals will be asking the right questions of our people, and our investigators will be contending with the applicable law and human factors? To me, this is a sure path to transparency, honesty, accountability, and ultimately...trust.
Conversely, (universally) police training does a very poor job of adequately teaching, testing for understanding of, and applying case law. Police training is also still very much behind the curve as it relates to the human performance aspects. There is science-based research that shows how to maximize situation analysis, decision-making, and performance in police officers knowing they will be experiencing physical, mental, and emotional adaptations during times of stress. That's a struggle we in police training and education circles continue to work on.
SUMMARY
Let me be clear. I am NOT advocating a blanket excuse for poor decision-making or excessive force. I make NO case that police officers should be given endless slack. Clearly, there are instances of wrongdoing. These officers must be held accountable for their decisions and actions. Police leaders and peers must speak out against these transgressions.
But just as loudly, when officers do the right things that appear ugly, these leaders and peers must open up and educate our citizens about the various factors, especially those that apply to the case in question. Few police force incidents are pretty. But often, the awful is in fact lawful. And necessary. And ethical. And just. We need advocates. And understanding. And trust.
The law and human factors are great topics to start the conversation.
***
Louis Hayes is a systems thinker for The Virtus Group, Inc., a firm dedicated to the development of public safety leadership. He is a co-developer of The Illinois Model™ law enforcement operations system (LEOpSys) and developed several courses rooted in its theory and concepts. He is a 17-year police officer, with current assignments as a Crisis Intervention Team (CIT) member, a certified Force Science ® Analyst, and a tactical medical officer for a regional SWAT team. Lou closely follows the trend of a seemingly over-militarized police culture in America. He tries his best at maintaining an old fashioned, beat-walking, community-policing attitude...even while wearing body armor and an AR15 carbine. A full compilation of articles on The Illinois Model can be found here.
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