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The Totality of Circumstances

Despite what the public believes, videos do not tell the whole story of law enforcement use-of-force incidents.

January 28, 2016  |  by Greg Meyer

Often a citizen video only shows the force, not the inciting event and certainly not the totality of circumstances. (Photo: Carla Blazek)
Often a citizen video only shows the force, not the inciting event and certainly not the totality of circumstances. (Photo: Carla Blazek)

Images of police use-of-force encounters with subjects inspire different reactions from different Americans. Many people express outrage and believe the police are always in the wrong. Others just shake their heads and wonder, "Why?" Still others assume the police were "just doing their jobs." We have become a visually over-stimulated culture. Our heavy reliance on visuals, particularly video, of police encounters, has some serious unintended consequences. But relying solely on a video to make a judgment is foolish.

For more than 25 years, I have testified for and occasionally against officers in police shootings and other use-of-force cases in criminal, civil, and administrative cases across the country. Also, during a 30-year law enforcement career with the Los Angeles Police Department, I had roles at various levels during the investigation and review of such incidents. The challenge in any use-of-force incident is for reviewers to determine if the force was objectively reasonable under the laws of our land. This determination is almost never possible on the basis of visuals alone. Any objective review must consider the totality of the circumstances.

Television and radio commentators, talk-show hosts, newspaper columnists, social-media users, clergymen, special interest group spokespersons, your best friend—and even other cops—pass instant judgment on officers' actions on video without seeming to know anything about the investigation and analysis that necessarily includes policy, training, and the laws that govern police use of force. There are even police chiefs and prosecutors who throw officers under the bus on the strength of a troublesome video before the investigation is even conducted. So much for due process.

Rush to Judgment

Apparently it is too much to ask the public—and sometimes the members of our profession—to wait for the results of the multiple investigations. Later, people are confused and upset when a jury—which gets the related facts and context, along with the video—does not do what the media led people to expect. When that happens, be ready to put on your helmet and protect your firefighters in case of rioting, burning, and looting.

Use of force is ugly. There's no way to pretty it up. But the public could sure do a better job of understanding how and why these things happen. Instead, television and YouTube take the place of orderly investigation and adjudication processes.

With cellphone video cameras, security cameras, police in-car video systems, and body-worn cameras proliferating across the country, there must be tens of thousands of police videos made each day. Only the most dramatic aberrations make it onto your national news channels. And who wants to be the lucky officer whose video instantly makes him or her "The Daily Chump" on CNN?

When I think about this situation, I am reminded of an old "Grin and Bear It" newspaper cartoon. Picture the leader of a group of glum cavemen addressing his people around the evening campfire. The leader says, "Conditions have always been bad…but now that language has been invented you hear more about it!"

The 24/7 news cycle and social media are the language of our time, and it seems that everyone feels compelled to express an opinion, no matter how ill informed. The dramatic misinformation spreads like wildfire. Later corrections or retractions rarely rise above the din of the original misinformation. Ferguson, anyone?

False Impressions

Videos are not the ultimate truth many believe them to be. They are simply data in a stream of data that investigators and adjudicators must examine to determine what the officer perceived at the time and whether the totality of the circumstances along with policy, training, and the law sustain or do not sustain a finding of objective reasonableness.

Juries make decisions on more than just a video. When I review a case before testifying, I look at the incident in terms of policy, training, equipment, tactics, supervision, investigation, documentation, review processes, and the law. These days I'm also looking at one or more videos. Some good, some marginal, some…let's say not so good.

In recent years I've attended group meetings with dozens of police chiefs from all over the country at events produced by the Police Executive Research Forum. The recurring theme of the conversations is "how do we restore public confidence in our police force?" Other themes focus specifically on particular use-of-force issues like when and how to employ TASERs, how to confront people who are wielding knives, and "slowing the action down" as police approach an incident. (Slowing down the action, as I've written before, is a good idea if the situation is not immediately life-threatening.)

I'm not sure that we are at a place in history where restoration of confidence in the police by those who have lost confidence is possible in the short run. The 24/7 news cycle plus social media combine to drive an unstoppable increase in cynicism about police professionalism. And we keep feeding them awkward incidents to broadcast.

The public learns about incidents from the media. For whatever reason, the media seems to have a bias toward focusing on tragic police incidents when there is a racial component, real or imagined. (Sorry, but I don't suffer political correctness gladly.) But notice that the media has not told you that four of the first 10 law enforcement officers murdered by gunfire in the line of duty during 2015 were black and that seven of the 12 accused copkillers were black. I stopped counting in mid-May.

Are there more police shootings than there used to be? No. There are far fewer than there were 30 or 40 years ago, thanks to better training and the widespread deployment of less-lethal weapons like TASERs and pepper spray.

Tough Truths

Are there terrible tragedies precipitated by poor (even criminal) police actions? Occasionally, yes. But looking back over my active duty decades with the LAPD plus my experience handling more than 250 cases as an expert, I estimate that maybe two-thirds of use-of-force incidents are clearly justifiable; maybe a quarter are "gray area" cases, where the courts generally give officers the benefit of the doubt (and so do I); and a relative few are just awful. Bad decisions, bad tactics, occasionally malicious.

Videos are tough, and they certainly have their limitations. Although I would prefer to know all the evidence first, some videos are explicit enough that the viewer can make preliminary observations.

The Chicago police officer who was recently charged with murder after a video incident will likely offer a defense of his early two or three shots when a young man carrying a knife and whacked out on PCP during an 18-minute rampage came dangerously within 10 or 12 feet of another officer. Don't buy into the media-promoted lie that he was walking away. With every step until perhaps the last two, even though he was not walking directly at the officers, he was getting closer to them. Take another look at that video at the 21-second mark. The guy moves his knife from hanging down at his side to thrusting it out in front of him, and simultaneously turns his head to look at the officers to his left. It wouldn't take much time to attack the closest officer. Still, the shooting officer will have a difficult time explaining all the shots that he fired over a protracted period of time after the guy was already on the ground.

Video evidence will increasingly document what happened, and will usually—but not always—make you and your partners look good. An age-old problem that puts cops between a rock and a hard spot is when we see misconduct by other cops. Been there, done that, especially as a rookie. The pressures are enormous. Too often, the "code of silence" kicks in. Videos should relieve some of that pressure.

Video or no video, you don't do yourself or your agency any favors if you condone major misconduct like excessive force and fail to report it or fail to answer honestly when asked about it. In my work, I see more officers stepping forward on that subject than I used to, but the code of silence is still a big problem. Yes, it's a big problem for doctors, and lawyers, and teachers, and journalists, and all the rest of the professions, too. But they don't have badges and guns and TASERs and the power to arrest and use force on people. So yes, get over it…our profession is held to a higher standard, as well it should be.

The law gives police the power to stop, question, arrest, use force upon, and even shoot people. Occasional mistakes are made. Some of the mistakes are the result of stress during critical incidents, and some of them are malicious. Officers must be held accountable by our administrative and justice systems for their actions and how they performed, even in the most difficult situations, including the ones on video.

It is important that police tactical training be dynamic and stress-producing so that officers will be better prepared for the realities of the sudden violence they will encounter. Witness the outstanding performance of officers responding to the tragic active-shooter terrorist incident in San Bernardino last month. Also, improved training on handling mentally ill persons, people freaked out on stimulant drugs, and people armed with knives and other dangerous weapons would yield better results in some cases.

While the overwhelming number of law enforcement professionals do their jobs well, it is essential that supervision and management keep tabs on officers, be aware of inappropriate high-risk conduct, and weed out the unfit before an unreasonable incident happens. We all have a responsibility in that regard for the good of our profession. We need our videos to show our best side, not our worst.

The videos are out there, and there are more to come. As our profession comes under greater scrutiny, there is growing concern that officers are backing off from making discretionary stops. "De-policing" is developing in some places.

No doubt incidents like Michael Brown in Ferguson, Eric Garner in New York, Tamir Rice in Cleveland, Walter Scott in North Charleston, Freddie Gray in Baltimore, Laquan McDonald in Chicago, and the rest, whether or not they are on video, fuel the anti-police backlash that now makes your job harder on the street. About a year from now, there needs to be a study of statistics of officer-initiated enforcement activity for two years before Ferguson vs. two years after. We shall see whether de-policing is real or not.

Meanwhile, the public and the media ought to look beyond emotional reactions to the next inevitable difficult video and gain an appreciation of what the United States Supreme Court ruled more than 25 years ago in the landmark use-of-force case Graham v. Connor: police incidents tend to happen in circumstances that are tense, uncertain, and rapidly evolving. The test of what is reasonable is not capable of precise definition or mechanical application. 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.

Greg Meyer is a retired Los Angeles Police Department captain who consults nationwide on police procedures and tactics. He is a longtime member of the POLICE advisory board.


Comments (3)

Displaying 1 - 3 of 3

plato's playdough @ 2/14/2016 3:39 AM

If false or misleading statements are made by a TV spokesperson (I did not say journalist, for they are reading a tele-prompter) then sue the spokesperson personally.

The Network may then step in to protect and defend the spokesperson. When that happens, sue the Network as an accomplice.

There was a day, in the long-ago past, when facts were verified before publication.

If they really believe that what they call freedom of speech has standing, call them a F*&K-face C*ck WhOr# and see if they still believe in it.

(sorry, so sorry, I hate it when it does that...)

Trigger @ 2/25/2016 6:39 AM

When verbal judo doesnot work and you have to go hands on violence is present. There are some individuals that will not comply when you are attempting to control them or place them under arrest. This profession deals with violence and at times we have to use violence to resolve an issue. I know there are those that will be upset with my statement but unless you have had to deal with a physical encounter there is not much you can say about it. This past week Brown University students had some major "Issues": Students at Brown University are claiming that the combination of classwork and social activism is causing them mental anguish as they try to keep up with academics while maintaining a busy protest schedule, the Brown Daily Herald reported on February 18. .....Deans are working together with students to help them find accommodations, the paper reported. According to Ferranti, student activism is an “important part of the academic learning experience.”

Lt @ 9/20/2016 7:05 PM

Great article. I will be using for in-service and roll call training.

Now we all have a choice to make. Given the current situation with officer involved shootings being sky lined, do we want a President that will come out before any facts are public and have a talk with her white people to say this is intolerable. She might be nominating a supreme court justice one day.

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