Avoiding ‘lawful but awful’: How Minneapolis and St. Paul police officials are looking to change when officers use deadly force

MPD Chief Janee Harteau

In a single phrase, the head of one national police-chiefs group succinctly described the type of officer-involved shootings his organization is trying to reduce:

Lawful but awful.

Chuck Wexler used those words during a late January session of the Police Executive Research Forum (PERF) in Washington, D.C. They were used to describe shootings that may be considered lawful under most departments’ use-of-force policies — but that nevertheless look awful to many residents of communities, the type of incidents that have been at the center of protests against use of deadly force by police.

After two years of research that included field visits to England, Scotland and Northern Ireland — where police are rarely armed — the forum has developed a new set of protocols that emphasize de-escalation and helping police slow situations down to provide time to resolve them without gunfire.

They also ask officers to assess situations against what it terms “the test of proportionality.” For officers to ask themselves: How would the general public view the action we took? That is, would the community consider them awful even if police officers, prosecutors and grand juries assert that they are legal?

And now those policies are coming to the Twin Cities. Both Minneapolis Police Chief Janeé Harteau and St. Paul Chief Tom Smith are members of the forum, which reviewed and finalized the new policy, and both cities are deciding how to adjust use-of-force protocols and officer training into department policies.

“We’re constantly having to re-engineer what we do, and that’s what we should be doing,” said Harteau, who’s a board member of the chiefs organization. “As things change, so should we change.”

‘Contain and negotiate’

The proposed changes do not relate to threats involving guns. The changes are focused instead on confrontations with people who are armed with knives, clubs or weapons other than guns. Rather than directly confronting those people — many of whom have mental-health or substance-abuse problems — training should emphasize slowing down situations in order to “contain and negotiate.”

Harteau cites the equation “cover plus distance equals time.”

“This is not a case of if an officer has to shoot someone, we’re saying that they shouldn’t,” she said. “That’s a fact — that deadly force is going to be used at times when it is needed. But we have an opportunity to change the thinking and the training so we don’t even get to that point.”

The forum leaders are sensitive to criticism that using the United Kingdom as a laboratory for police practices is unrealistic. Police officers there can patrol unarmed because there are relatively few firearms in the population, critics have said. But both Wexler and Harteau say that while there are certainly differences in crime and culture, it’s because of those differences that U.S. law enforcement can learn from British police.

“I’m very realistic and we’re very cognizant of the fact that people don’t have guns in those countries,” Harteau said. “We have a lot of guns on the street and a lot of gun violence, and they don’t. We can’t just take what they do and overlay it here. But there are situations when an officer doesn’t have to shoot because they did other things. Can we replicate that?”

Harteau was part of a 2014 delegation to Scotland taken by members of the research forum and had planned to be part of the November 2015 return trip. She canceled, however, because it came in the aftermath of the police shooting of Jamar Clark and the nearly three-week occupation of space in front of the 4th Precinct in North Minneapolis.

Controversy, protest and video

The impetus for the policy change is the changing attitudes toward police and policing in the wake of the shooting death of Michael Brown in Ferguson, Missouri, and other controversial deaths. And the ubiquity of video recordings — from dash and body cams to civilian recordings — has forced a change in approach, the report acknowledges.

“With all the video recording becoming available, the role of the community in reviewing police uses of force will only increase in the future,” Wexler wrote. Thus, departments need a higher standard than “not unconstitutional” and “not criminal.”

“In many of these cases, the officers’ use of force has already been deemed ‘justified,’ and prosecutors have declined to press criminal charges,“ he wrote in the report’s summary. “But that does not mean that the uses of force are considered justified by many people in the community.”

The annual PERF meeting was held at the Newseum in Washington

PERF/Sarah Mostyn
The annual PERF meeting was held at the Newseum in Washington, D.C., in January.

Wexler attributes the “disconnect” to the most-recent U.S. Supreme Court ruling on officer-involved shootings, Graham v. Connor. In that 1989 case, the court found that a shooting is legally justified if it would have been considered reasonable “from the perspective of a reasonable officer on the scene,” even if the officer’s perception of threats turns out to be incorrect. That analysis should come with the consideration that cops make split-second decisions in situations that are “tense, uncertain and rapidly evolving,” the court noted.

Wexler wrote that there is a “growing recognition” in the profession that use-of-force reviews should not focus solely on the moment when a gun was fired but should also cover what led up to the incident. Officers should be held accountable “if they failed to de-escalate the situation in order to prevent it from ever reaching the point where the use of force was necessary.”

It’s the difference between “could” and “should” an officer fire a weapon.

Some other items among the 30 recommendations included in the report: a call for more data collection and reporting of police use of force; a prohibition on firing weapons at or from moving vehicles; a duty to render first aid promptly; more use of nonlethal weapons, and an obligation for officers to intervene to prevent fellow officers from using excessive force.

Culture as important as training

In his summary of the findings, Wexler called for departments to “rethink” training. “As we look back at the most controversial police shooting incidents, we sometimes find that while the shooting may be legally justified, there were missed opportunities to ratchet down the encounter, to slow things down, to call in additional resources, in the minutes before the shooting occurred,” he wrote.

He said the conclusion of the chiefs is that police practices need to “change dramatically,” something that may be difficult for some in policing to accept. “We give officers many hours of training on how to shoot a gun,”  he wrote. “But we spend much less time discussing the importance of de-escalation tactics and Crisis Intervention strategies for dealing with mentally ill persons, homeless persons and other challenging situations.” The report calls for fewer lectures and more “scenario-based” training of officers.

The report also said that while training is an issue that must be addressed, so is police culture. Trainees are taught the importance of getting home safely after each shift. Officers are taught to be mindful that they face danger every day and should be ready to protect themselves. But the proposed protocols call for officers to be protective of all life, not just their own life and their partner’s life.

“A number of departments have begun to build their use-of-force policies around statements of principle about the sanctity of all human life,” the summary states. “Some of the officer-involved shootings that have been most controversial seem to reflect training that has officers think solely about their own safety rather than a broader approach designed to protect everyone’s lives.”

Another cultural belief that should change is one that concludes that officers should move in and take charge — never back down. “If an officer slows a situation down and calls for assistance, there is sometimes a feeling that other responding officers will think, ‘What, you couldn’t handle this yourself?’ Wexler wrote.

Harteau said she sees that attitude among some of her officers, and thinks it might be a generational split. “Some of the more seasoned officers are in that mindset, more than our newer officers, because training now is very much a team concept,” she said.

During her early days as a street cop, she said, it was standard practice for other officers to back up fellow cops who were on a domestic assault call. “It’s always better to have more numbers, more eyes, more options.”

The 21-foot rule

The rule reflects another bit of police culture — the rule-of-thumb that a suspect armed with a knife should be kept at least 21 feet from the officer or others. Once that barrier is crossed, many officers and departments believe the shooting of the assailant is justified to protect the officer from harm.

The reasoning is that an assailant with a knife is close enough to harm the officer or others in a short amount of time. Once the threshold has been crossed, officers are trained to stop the possible attack, with gunfire if necessary.

“It’s not like you have this automatic ability to shoot at 21 feet here,” Harteau said. “But it is still something that is in the back of officers’ minds because it has been drilled into their heads and passed down.” The chiefs group suggests getting rid of any hard policies based on distance and train officers to buy more time if possible — to create a “reaction gap” between themselves and an knife-armed person. Harteau calls it “moving the box.” The forum also proposes greater use of nonlethal weapons like sprays and Tasers —  and even shields — to protect officers from harm without using firearms.

In a New York Times op-ed this week, Wexler and Camden County, New Jersey Police Chief Scott Thomson summarized the approach this way: “The key for the police in such circumstances is to slow things down: to ask questions rather than bark orders, to speak in a normal tone, to summon additional resources if necessary. Pulling out a gun on an anxious person may unintentionally raise his level of stress.”

The forum proposes greater use of nonlethal weapons like shields

REUTERS/Hazir Reka
The forum proposes greater use of nonlethal weapons like sprays and Tasers — and even shields — to protect officers from harm without using firearms.

Minneapolis already gives officers de-escalation training and is currently putting 500 officers through a 40-hour crisis intervention training. This is on top of ongoing procedural justice training and implicit bias training that is part of the National Initiative for Building Community Trust and Justice, a three-year federal program that includes Minneapolis and five other police departments.

St. Paul’s Chief Smith was not available to talk about how the department might use the proposed protocols, but department spokesman Sgt. Mike Ernster said the Sept. 24 police shooting of Philip Quinn raised issues that are touched upon in the research forum report. In that case, officers responded to reports of a man with a screwdriver who had known mental health issues.

At one point, responding officers backed away from a garage where Quinn was standing and the man ran away. When they returned to his home hours later after getting calls from his family, they intended to contain him, Smith asserted at a February press conference. But when Quinn appeared to rush officers, he was shot. A grand jury decided not to charge Officer Richard McGuire in the death. Quinn family members, however, witnessed the shooting and say Quinn was just trying to run away because he felt surrounded and didn’t want to be arrested.  “We wanted to wait,” Ernster said. “But the situation took off before resources could gather.”

Union response

Bob Kroll is a Minneapolis police lieutenant and president of the Police Officers Federation of Minneapolis. He’s concerned about the proposed use-of-force protocols. “You can’t go back and recreate Graham v. Connor,” Kroll said, something he believes the chiefs group is trying to do. “Use of force is dependent on the situation you are facing.”

Having a supervisor review a situation after the fact — something he dubbed Monday morning quarterbacking — is unfair to officers. “I don’t know who would want to do this job anymore,” Kroll said. “So there’s a guy with a knife who may have mental health issues and is a risk to others and we have to go after him with a shield? We’re not in the time of gladiators anymore.”

Kroll called the work of groups like the research forum as “ivory tower” thinking. “We used to say, ‘They’ve been in administration too long, they’ve forgotten what it’s like on the street.’”

Kroll, however, did endorse the current conflict resolution and de-escalation training. “When feasible you want to slow it down,” he said. “But sometimes, no matter what you do, you can’t de-escalate. You need some real cops to step up and take someone down.”

Next Steps

Harteau said that because she is on the research forum board and has been involved in the review of use of force for several years, she has been making changes to policy and training over that time. Of the 30 proposals, she said 14 are already in policy, four more exist but need updating, eight are in progress or are being seriously considered and seven are under early review. Among those in only early stages of review are bans on firing into vehicles, the use of shields and how the department releases information on use-of-force incidents.

“I’m proud of the fact we’ve been incredibly proactive,” Harteau said. “We’re at the table to have the conversation, to get the input. The city of Minneapolis should be pleased with that.”

https://www.minnpost.com/politics-policy/2016/03/avoiding-lawful-awful-how-minneapolis-and-st-paul-police-officials-are-looki