Police Use of Force Decision Making
(Note: This article was recently used against me in court in regards to a law enforcement officer who perceived he was looking down the barrel of a gun. Make no mistake: This article is about pre-event decision making - not about immediate reactions / decisions to perceived immediate threats. I'm dissapointed that my attempts to assist law enforcement decision making prior to engagement have been misrepresented in the court room - but it comes as no surprise!)
History has provided several examples of the “ebb and flow” of law enforcement / community interactions and expectations. While change is often a positive thing; law enforcement has occassionally experienced the unintended long term consequences. In regards to change, I don't beleive we have never seen a pattern of events similar to those occurring now. Events which threaten to change how a use of force is viewed. Historically, the Graham Standard has provided that a use of force will be viewed through the objective and reasonable perspective of the officer at the scene at the moment the force was applied. This review is supposed to be completed without the benefit of 20/20 hindsight and is rather forgiving of what some may refer to as human error.
While many police departments have more restrictive policies than what Graham may allow, I see an erosion of the Graham standard in its current state. The errosion is occurring at different levels and ways and not all of them in the courtroom. While Graham remains the law of the land, holes are being poked in the final frame analysis it provides. Those holes have allowed pre-event decision making to be injected in to the final frame analysis and could make a difference in your next use of force review; whether in the courts or internally within your agency.
Keep in mind that the intent here is not to discuss Graham or policy, but only to increase awareness and ensure officers are equipped to make the best decisions possible in rapidly evolving, tense and uncertain environments.
3 examples of new trends in UOF evaluation
To ensure you are aware of what’s happening, let’s look at 3 recent examples from different sources. One is from the agency level, one from the courtroom, and the last from a police research organization. Each should at least cause a raised eyebrow:
The first comes to us from the Arlington Police Department (Tx). While the specific details of the case are unknown to me, media reports state an officer shot and killed an unarmed male inside a car dealership. The felonious suspect rushed the officer (in training) prior to being shot by him. The officer was fired 4 days after the event for poor decision making in confronting the suspect alone. This is only one example and many others exist of similar type. Officers are losing their jobs for pre-event decision making - don't let it happen to you. Recomendation: Stay within contemporary police practices - ie: surround and call out, proper high risk traffic stops, contact / cover, and my constant: distance & shielding = time!
The 2nd example involves a 2014 9th Circuit Court ruling entitled “Hayes v San Diego”. The decision begins the courts process of pre-event analysis of an officer’s use of force. The case involves deputies who entered a residence to confront a potentially mentally unstable subject. During that encounter, the subject moved toward deputies with a large knife overhead and was subsequently shot and killed. The court ruled that the shooting was not objectively reasonable based on several pre-event decisions (actions / inactions) made by the deputies prior to engaging the subject. Ultimately, this decision adds to the “totality of circumstances” review in that courts in the 9th circuit will also review officer’s actions or inactions (decision making) prior to the use of force in determining whether the force was justified. Recommendation: Seeming not that different from the first recomendation, but adding the need to investigate as fully as possible prior to engaging in order to determine a reasonable course of action that remains within policy, law, training, and good judgement.
Lastly, the Police Executive Research Forum recently released their “Re-engineering Training on Police Use of Force” report. The report presents many interesting observations by police executives across the nation. Specific to the current narrative, the report provides a great deal of discussion on pre-event decision making and an apparent misunderstanding of the Tueller drill. The report introduces a European Decision Making model as a method to assist officers in making better decisions (although I believe the full OODA is more appropriate). Many PERF recommendations fall under the umbrella of; slowing down, keeping distance, assessing a situation, de-escalation, and making appropriate decisions - not inconsistent with what has already been provided. The takeaway is that everyone involved in the criminal justice system is speaking VERY LOUDLY - and agencies must listen.
Like it or not, the wheels of change are in motion and no one can predict what new developments may be coming. Law Enforcement is evolving towards a more in depth review of the decision making leading up to the use of force event. We need to understand it, accept it, and adapt through better training specific to making those pre-event decisions. As decision making is solely under the control of the human brain – it makes sense to start there.
Science Lesson: Decision Making Under Stress
We can reasonably expect that rapidly evolving, tense, and uncertain events are going to cause a great deal of stress. As a matter of fact, those words (rapidly evolving, tense, and uncertain) correlate well with the scientific definitions of stress. Generally, it is our perception of a threat, our ability to overcome the threat, and our perception of the importance of overcoming the threat that all combine to determine the level of stress. In turn, stress dictates physiological arousal levels – or better known as our “fight or flight” response.
The fight or flight response occurs at the subconscious level and begins the release of “stimulant” hormones within our body (eg: cortisol, adrenaline). The hormones increase performance along an ever increasing curve to a point of optimal performance (inverted U). However, stress levels in life or death situations may cause a “full push” of stimulating hormones providing great strength and speed – but decreasing performance in areas such as; fine motor skills, attention, and decision making. It is the stress response’s effect upon decision making that we should be most concerned with.
According to a depth of scientific evidence, decision making is degraded during acute stress. In a situation where time compression and the perceived threat of injury / death are involved, the fight or flight response may push an officer into a state of hyper-vigilance. It is within the hyper-vigilant state that humans rely more on the survival brain or limbic system (reactive) and less on your frontal lobes or thinking brain (analytical). The perception of a life threatening experience can be problematic when accurate assessments and sound decision making are expected.
3 Recommendations for Better Decisions
Hypervigilance and its effects on decision making is the biological foundation for these evidence based recommendations. Olympic athletes and Navy SEALs have utilized some of these concepts within their training and performance regimes in order to increase performance; especially cognitive performance:
1. Slow down and keep / increase distance: Stress is caused by time compression and increased threat perception. Distance and cover / concealment allow for increased reaction time / safety. Allowing yourself time in a decreased threat atmosphere will ensure prolonged time to assess the situation and make better decisions.
2. Goal Setting: Creating a plan of action before you engage, and having a backup plan will allow your brain to “spool up” and prepare. Being caught by surprise can increase the perception of time compression and threat while increasing the chance of hypervigilance. Hypervigilant states make analytical decision making difficult if not impossible.
3. Combat Breathing: Taking in a deep breath, holding it for a few seconds, and allowing it to slowly escape will increase oxygen intake and reduce the stress response. A great tool for re-engaging good decision making.
While we should do everything we can to make the best decisions possible, it may be difficult if one does not understand the most important tool we deploy – our brain. While powerful, the brain has limitations (some more than others?) in its cognitive abilities under stress. Respecting those limitations by slowing down, observing / assessing situations, tactical retreat, calling in additional resources, and simply not over penetrating a situation (becoming completely reactive) will all increase an officer’s cognitive performance. Physical skills become worthless without the cognitive abilities necessary to control them! Be Safe – Be Vigilant.
David Blake, M.Sc, F.S.A., C.C.I., is a consultant and expert witness on Police Use of Force and Human Factors Science. He is a contract instructor with the California Training Institute facilitating their CA-POST certified courses entitled; Force Encounters Analysis & Human Factors, Threat and Error Management. He is an Adjunct Professor of Criminal Justice, a Police Academy Instructor, and a Force Options Simulator Instructor at a large regional training center. Dave has instructor certifications in; Force Options Simulator, Firearms, DT, and Reality Based Training. He holds a Bachelor of Science in Criminal Justice Management and a Masters of Science in Psychology. He is a Certified Criminal Investigator with the American College of Forensic Examiners Institute and a Force Science Certified Analyst with the Force Science Institute ©.