A Very Righteous Use of Force

By: Jerry Cooper

 

I simply must stop watching TV news.

I am writing just hours after prison escapee David Sweat was shot and captured by New York State Police Sergeant Jay Cook on June 28, 2015 near Constable, New York.  I cannot resist making a few candid comments concerning the event and subsequent news coverage, and the lack thereof.

For those who do not pay attention to any news, David Sweat and Richard Matt are killers who escaped from the Clinton Correctional Facility in New York on June 6, 2015.  Matt was killed by a U. S. Border Patrol officer near Malone, New York on June 26, 2015 when he failed to disarm himself when confronted. 

Neither should have been in prison at the time of their escape; however, the State of New York shamefully does not have the death penalty.  Maybe they will revisit this issue, but I doubt it.  So, both were serving life sentences.  Matt had killed two people, and Sweat savagely killed a deputy sheriff who was on routine patrol at the time, then ran over him to make sure he was dead. 

I saw a news alert banner on my computer screen reflecting that Sweat had been shot and captured.  I immediately ran to the TV and switched on CBS.  Just golf there.  So, I switched to ABC, then to NBC.  As the case with CBS, there was only routine programming.  Surely CNN would have coverage.  They did, but hey, it is CNN, and they might as well have been reporting on a Paris fashion show.  I turned to FOX News.

Julie Banderas was anchoring the news program.  Oh boy.  Bandaras is even worse than Bill O’Reilly when it comes to pontificating about something she has absolutely no knowledge.  Back in 2006, during the early stages of the Duke lacrosse case in which players were falsely accused of rape, Bandaras made an idiot of herself when she tried explaining the legal issues pertaining to the police interviewing the suspects.  I have taught interview and interrogation, including the legal aspects, to many law enforcement officers.  I was embarrassed for Banderas, so I sent her an email with information to try to help her out.  I wasted my time.

Referring back to Matt’s capture a couple of days earlier, Bandaras struggled with the idea that if police shoot to stop the threat, and not to kill, then why was Matt shot in the head three times?  Let me try one more time Julie to give you a little help.  A professional investigation will undoubtedly answer your question in due time.  As for now, let me just throw out three possibilities: 1) in a police shooting, a trained, experienced officer only hits the target about 20% of the time; so, maybe they were shooting at “center mass,” but shot Matt in the head; 2) center mass is the largest part of what you can see, and if Matt was trying to take cover or use concealment, then the head might have been center mass; and 3) as Matt had a shotgun, and if he was aiming the gun at the police, then it is common for the officer’s brain to focus on the threat; the threat in this case would be the shotgun, which he probably would have been near his head while he was taking aim.

Then, referring to Sweat’s capture, Bandaras kept saying how impressed she was that although Sweat had killed a deputy sheriff in the past, the officer who shot Sweat had the presence to simply wound him.  She explained that Sergeant Cook was a firearms instructor and obviously knew where to place the shots in Sweat’s back so as not to injure any organs or other vital body parts.  Now, Julie, not taking away from Sgt. Cook’s abilities, but under what had to be great stress, and using his duty handgun, do you really believe this is what happened?

Thankfully, they finally got Rod Wheeler on the phone to comment.  Wheeler is a former Washington, D.C. homicide detective, and is a brilliant guy.  Wheeler tried to bail Bandaras out.  Wheeler illuminated that if Cook shot Sweat in the back as reported, it was certainly justified so that Sweat would not escape and harm anyone else.

After Wheeler, they connected by phone with Gil Alba, a former NYPD detective.  Alba sent Bandaras into a downward spiral by telling her that officers shoot to kill, not to stop the threat.  Huh?  Now, Bandaras was all confused.  Fortunately, she was replaced as anchor by Harris Faulkner.  An ATF agent, also commenting telephonically, straightened out the mess.  He enlightened everyone by clarifying that officers don’t shoot to wound; they just shoot, and sometimes they wound, and sometimes they kill.

This incident represents the kind of cooperation that should exist between law enforcement and the public.  More than 2500 leads were provided.  On this occasion, I heard no one ranting about demilitarizing the police.

Sweat has killed a deputy sheriff, was convicted of first-degree murder, was sent to prison, escaped, and was then shot twice in the back while trying to further his escape.  Sergeant Cook did what he had to do: shoot Sweat in the back to stop him from making it to a tree line where he might again escape and potentially kill someone else.  Under Tennessee v. Garner, it was a very righteous shooting.

THE EVOLUTION OF USE OF FORCE TRAINING

By Jerry Cooper

I do not consider myself to be an expert on anything; however, I have developed a certain line of knowledge in specific areas.  One such area of knowledge and skills concerns use of force by law enforcement.  It has been my privilege to have trained thousands in these topics.

I am a certified instructor in subject control.  Subject control is what we in law enforcement for decades called defensive tactics.  For ages, we trained law enforcement officers specifically on how to survive worse-case scenarios.  Such instruction evolved as we realized the need to take control of potentially dangerous situations from early on in an encounter, and not wait until the situation goes south on us.  In every contact, someone is going to be in control; if not the law enforcement officer, it will be the other guy.  We also learned that it is not enough to simply defend ourselves by escaping the assault.  Once we have defended ourselves, what are we going to do next?  Unlike a citizen defending him or herself, a law enforcement officer must still try to control the assailant; therefore, better techniques were needed.   The term “subject control” reflects this change in philosophy and techniques.

In the past 15 or so years my primary focus has been on the legal aspects of use of force, and the science (neurophysiology) involved in the process.  I have presented classroom lectures and employed practical scenario training in these issues.  As a certified firearms training simulator instructor, I have used the most advanced tool available today for training individuals in force assessment.

For those who are not familiar with the law enforcement version of the firearms training simulator, I must point out that the term “firearms” is really a misnomer.  Modern simulators are wonderful tools that allow for instruction in all force options.  The interactive scenarios can provide training in officer presence, verbal commands, physical (hands-on) force, impact weapons, chemical spray, TASER and firearms.  I have used this system to train civilians, military special operators, and of course, law enforcement personnel. 

Many members of civic organizations have asked me to explain how law enforcement officers are trained in use of force.  It has been very rewarding to demonstrate training techniques, especially use of the simulator, to these groups, and give them an opportunity to engage in the training.  The feedback I have received from the individuals who have taken advantage of these opportunities has been inspiring.  When a person is faced with stressful stimulus-response scenarios where split-second decisions have to be made, they come away with a much greater appreciation for what law enforcement officers face during situations that are tense, uncertain and rapidly evolving.   

In recent months, there have been numerous incidents involving the use of force by law enforcement.  Professional investigations have determined or will determine in each case whether the use of force was constitutional.  In the meantime, the national media has used this situation to bash law enforcement.  Many agencies with these simulators are just now learning what I learned many years ago: they can use the simulators to educate people outside of law enforcement regarding what officers face in police-public encounters, especially when a scenario forces the “officer” into a life-threatening encounter.  I’ve seen numerous reports regarding the impact of offering this experience to civilians.

It has been particularly rewarding to present this type of training to members of citizen police/sheriff academies.  Some participants in these classes enroll because of their interest in and support for law enforcement.  Others, however, look at these classes as opportunities to expose agencies in the act of promoting a corrupt police culture.  It is this latter group that usually leaves the simulator training with an entirely different viewpoint.

I have had the pleasure of conducting training for writers taking part in writer police academies.  These people are eager to handle real weapons and learn from scenarios which simulate life-like threats.  The writers get a glimpse of what it is like to suffer a downward spiral of mental and physical functions as their heart rates instantaneously jump to over 145 beats per minute.  Well-known figures within the writing community taking part in my training include such people as Lee Child, Jeffery Deaver and Marcia Clark.

The majority of training I have conducted using the firearms training simulator has been for the benefit of law enforcement personnel from local city and county agencies.  State law enforcement officers have been in my classes, including every sworn officer in the State of North Carolina from one such agency.  Federal officers I have trained primarily came from the U. S. Drug Enforcement Agency (DEA) and the National Park Service.  At times, the DEA groups included some military special operators.  Most of the officers attended my instruction as a part of in-service training and basic recruit training.  Armed detention officers and armed security personnel also benefited from the instruction.  At times, I had the opportunity to help evaluate officers who had been removed from active duty temporarily due to being involved in a serious use of force incident.  To be cleared for return to gun-toting duty, some agencies required these individuals to run through a bank of scenarios to determine the reasonableness of their judgment and to ensure that they were not too hesitant or overly eager to use force, especially deadly force. 

I have witnessed the value of what is called “force-on-force” training, whether carried out by using a firearms training simulator, simunitions, or some other practical exercises using role players.  It has been shown that in order to function appropriately under stress, one must train under stress.  Unless you can get a trainee’s heartrate to go over 145 beats per minute in training, then you might be setting the trainee up for failure in the real world. 

Many law enforcement agencies either do not prescribe to what I have presented herein, or claim they just do not have the resources to engage in such training.  As to the latter point, the federal courts have ruled that lack of financial resources does not excuse inadequate use of force training.  The courts have also emphasized that firearms qualification does not constitute use of force training.  So how do so many agencies get by with subpar training?  As with many other issues, there are the caught, and the un-caught.

I can say this with certainty: as for use of force training I provided using the simulator, no one left the training until I was comfortable that his or her judgment was sound, and that their threat response was within the range of conduct the U. S. Supreme Court considers “reasonable” (Graham v. Conner).

NEW USE OF FORCE RULING BY THE UNITED STATES SUPREME COURT: KINGSLEY V. HENDRICKSON

By Jerry Cooper

Use of force by law enforcement is a hot-button issue right now.  So, for those who may be interested, the United States Supreme Court issued a very important ruling this month (June 2015); however, unlike the highly publicized street-level law enforcement use of force incidents that have played out over and over on our TV’s to a fever pitch, this ruling (Kingsley v. Hendrickson) addresses the use of force on pretrial detainees.

First, a little history:

Up until 1989, use of force against a person at liberty (i.e., not yet in custody) was considered a 14^th Amendment issue.  If you remember your high school civics, then you will recognize the 14^th Amendment as the one dealing with what is called “due process.”  In 1989, however, the U. S. Supreme Court changed everything with their ruling in Graham v. Conner.  This is the ruling that created the Objective Reasonableness Standard.  The Supreme Court reasoned that since use of force by law enforcement is not a subjective inquiry into the officer’s state of mind, then the officer’s actions are not a 14^th Amendment issue, but rather a 4^th Amendment issue.  The 4th Amendment addresses seizures of persons and property.  A 1991 Supreme Court case (California v. Hodari D.) defines “seizure” as either 1) an officer applying actual physical force to a person, or 2) a person submitting to an officer’s “show of authority.”  A use of force, whether lethal or not, is a seizure of a person. 

One thing the national news media has not learned, and does not want to know, is that an officer’s pre-seizure conduct is irrelevant, and as such, is not subject to 4^th Amendment scrutiny. 

So, as of 1989, there were three separate standards for use of force by law enforcement and detention officers.  As discussed above, in the process of seizures, we had the (4^th Amendment) Objective Reasonableness Standard. 

In post-arrest, but pre-conviction (i.e., awaiting trial) cases, we had the (14^th Amendment) “Shocks the Conscience Standard.”  This standard required complainants to prove more than objective reasonableness.  Plaintiffs must show that force was used maliciously and sadistically to cause harm; it required the courts to look into the officer’s subjective state of mind.   The Supreme Court allowed the various U. S. Circuit Courts of Appeal much flexibility in passing judgment in these cases.

And finally, there was the post-conviction Cruel and Unusual Punishment Standard of the 8^th Amendment in which the petitioner had to prove obduracy and wanton infliction of pain.

As of this month, the post-arrest/pre-conviction Shocks the Conscience Standard of the 14^th Amendment no longer exist.  Use of force against these pretrial detainees now falls under the (4^th Amendment) Objective Reasonableness Standard.  This ruling in effect raises the reasonableness-bar for law enforcement and detention personnel when using force against pretrial detainees.

The lawsuit resulting in the Court’s decision stemmed from an incident in which Michael Kingsley was awaiting trial.  Kingsley had placed a piece of paper over a light fixture in his cell.  Detention officers pleaded with Kingsley for hours to remove the paper, but Kingsley refused.  Finally, detention officers and a deputy sheriff entered Kingsley’s cell and ordered him to stand and put his hands behind his back so they could handcuff him and move him to a different location.  Kingsley refused, so the officers forcibly handcuffed him and removed him from his cell.  After being moved to another cell, Kingsley then refused to let the officers remove the handcuffs.  Officer Hendrickson directed another officer to TASER Kingsley.  The officer then touched the TASER to Kingsley for the usual five-second TASER cycle.  Officers were then able to remove the handcuffs.  Kingsley filed a lawsuit alleging that the force was excessive.  In this case, the Federal District Court judge, and then the U. S. Court of Appeals for the 7^th Circuit applied the (8^th Amendment) Cruel and Unusual Punishment Standard, and both courts ruled in favor of the officers.

When this case reached the U.  S. Supreme Court, however, the Court took away the post-arrest/pre-conviction discretion of the U. S. District and U. S. Courts of Appeal in such matters.  The Court held that a pretrial detainee does not have to prove the defendant officer’s subjective state of mind, but need only prove that the use of force was objectively unreasonable as per Graham v. Conner. 

As circumstances in detention facilities are different from those encountered by law enforcement officers on the street, the Court expanded what is known as the “Graham factors” for these situations.  The Court wrote: “Considerations such as the following may bear on the reasonableness or unreasonableness of the force used:  the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the treat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”

Use of force involving convicted prisoners continues to fall under the 8^th Amendment’s Cruel and Unusual Punishment analysis.

THE PEOPLE vs. U.S. LAW ENFORCEMENT?

by: Jerry Cooper

Back in the ‘60’s, the British rock group The Tremeloes had a hit song entitled, “Silence is Golden.”  I think there is a lot of wisdom in that phrase.  There comes a time, however, when a person stays quiet as long as possible, but then cannot deal with the silence any longer.  So, I have decided to finally speak out on some of the issues relating to use of force by law enforcement. 

Where to begin . . . where to begin . . .

Let’s start at the beginning, and with a question: Who is responsible for enforcing the law here in these United States?  The obvious answer would be law enforcement agencies.  That answer would probably be technically correct.  There is, however, a deeper response.

Our process of dealing with law-breakers has its roots in old England.  Centuries ago, when a farmer had his prize cow stolen, there was no local law enforcement officer with whom to file a complaint.  Instead, the farmer would call upon his neighbors to help him get his cow back and deliver some justice to the culprit.  In our scenario, let’s say his neighbors are another farmer, a blacksmith, a barrel maker, and a tavern owner.  It would be each of these individuals civic responsibility to drop what he was doing and assist the victim of the theft.  As one might imagine, this could prove to be a costly duty to the others who were not looking after their own livelihoods during the pursuit of the thief.  So one day, the tavern owner got the idea that he would pay a small sum to one of his regular customers, who had a seasonal job, and this being the off-season, to take his place in the posse.  This turned out to be a win-win situation.  The tavern owner got to stay at his business establishment to safeguard his source of revenue, and the customer picked up some much needed extra coins.  In other words, the tavern owner got out of having to serve on the posse without shucking his civic duty.  What a country.  Eventually, the tavern customer also picked up extra posse work from the other farmer, the blacksmith, the barrel maker, and other nearby folk, and in time, turned this venture into a full-time occupation.  Sounds a lot like law enforcement, doesn’t it? 

It is not my purpose here to give a history lesson as much as it is to make the point that those living in the community with the victim farmer never dodged their responsibility to their neighbor.  The means might have changed, but not the accountability.

Fast forward a few centuries.  The plan of action has changed, but the obligation for seeing to it that the criminal justice system functions properly is still the obligation of our citizenry.

Honest, transparent and effective policing in America cannot exist without support from the public.  In this country at the present time we have people with a lot of mouth who possess much ill-will toward law enforcement.  These people have a hatred for anything functional and traditional.  They are quite simply activists with an agenda.  They are charlatans and pimps who will sell out anyone and anything to shine the light on their selfish egos.  Within the context of the subject matter herein, I believe it to be clear that the purpose of their lies is to drive a wedge in the relationship between law enforcement and the communities they serve.  The activists have the national media as their allies. 

Together, the activists and national news media are describing the relationship between law enforcement and the public as now being “toxic.”  For a large part, the toxicity is affecting the public who do not possess the knowledge necessary to keep from being infected by the hucksters.  Unfortunately, most people get their knowledge of law enforcement functions from cop TV shows and members of the media (liberal and conservative) who have no clue of what they are talking about. 

Although I’m old enough to know better, I’m still intrigued by the fact that friends, family and others who know me – even those I know mostly through Facebook – make ignorant comments about “police culture” and actions.  I usually don’t make the effort to engage them on the subject.  As they are usually talking around me and not to me, I just let their ignorance flow.

I went to a scheduled appointment with my cardiologist a few weeks ago.  He and I talked for approximately 20 minutes.  He took about a minute to look at my records, and then another half-minute to listen through his stethoscope.  The cardiologist, knowing that I am a law enforcement trainer, spent the remainder of our time together attempting to grill me on the use of force by law enforcement officers.  I would go as far as describing the encounter in such terms as he was trying to “bushwhack” me.  What he did not know was my extensive knowledge and training in use of force.  Our discussion remained respectful, even though he began the conversation by asking, “Aren’t you the least bit concerned about what is going on with the police using force?”  As my cardiologist is African-American, I knew from his phraseology, tone and other mannerisms exactly what he was talking about.  Wanting to keep the high road, I never directly addressed the racial component of law enforcement use of force.  I used the time to present a cursory explanation of use of force constitutional law and some of the science involved in these actions.  Sadly, I don’t think I got through.  The toxicity level was just too high.

Former Attorney General of the United States, Eric Holder, embarrassingly had to step before the cameras recently and admit that the entire narrative by the protesters in every demonstration in every part of the country after the use of force incident in Ferguson, Missouri was based on a lie – “Hands up/don’t shoot.” Holder and the Department of Justice deserve much of the blame for the bias and unsubstantiated reporting by the media.  Because of the lies, people were hurt, businesses destroyed, and law enforcement officers and their families were harassed and their personal information was hacked.  Communities have been damaged.

Every cloud is said to have a silver lining.  Although you will not hear it from the national media, support for law enforcement remains strong in most communities.  Even in New York, where the practice of “stop and frisk” has been disparaged so vehemently by people who do not know what they are talking about, 68% of the people approve of the method.

Trust between law enforcement and the communities they serve must be maintained.

Law enforcement officers are not perfect.  The United States Supreme Court has said that when it comes to use of force, officers do not have to be perfect, only reasonable. 

There are officers who should never have been hired to begin with.  The United States Department of Justice bears a lot of responsibility here, too.  First and foremost, however, I blame those that do the hiring.  I will address these and other issues another time.