All of us on the ALADS Board agree with a recent Los Angeles Times editorial headline: Police officers should help write, not shun, new use-of-force standards. The disturbing fact is that the body of the editorial praised the Police Executive Research Forum (PERF) is evidence that cops, and not newspaper editorial boards, should be defining use of force standards. PERF recently announced its standards on the use of force as a “serious” attempt to elevate the discussion of the use of force and has been engaged in a serious public relations campaign to push their agenda to police executives, civic leaders and the media.
PERF would have us believe their “principles” are based on sound reasoning and constitute good public policy. Experts in the genre of tactics, force and the law have loudly disagreed. Missy O’Linn, a former police officer and respected attorney specializing in police use of force cases formulated a response to PERF’s “30 Guiding Principles.” O’Linn critiqued PERF’s May 2015 conference entitled; “Re-engineering Police Use of Force” which was based on the premise; “American policing is bad: bad cops; bad tactics; and bad training.”
O’Linn, wrote a letter to PERF’S Executive Director Chuck Wexler after the conference raising questions and requesting dialogue about the dubious logic and conclusions stated at PERF’s conference. Wexler did notbother to respond to her letter to defend his organization’s views. The Fraternal Order of Police (FOP), which represents hundreds of thousands of rank-and-file law enforcement, and the International Association of Chiefs of Police (IACP) which represents hundreds of police department heads, have also issued statements opposing PERF’s proposals.
One PERF standard, is the “proportionality” test which calls for officers to ask themselves; “How would the general public view the action we took? Would they think it was appropriate to the entire situation and the severity of the threat posed to me or the public?” This statement is stunning in its lack of insight and practicality. First of all, using force against another human being never looks “good” from the viewpoint of the average person. It is a necessity of the kind of work we in law enforcement are called upon to do so the general public doesn’t have to!
Second, uses of force don’t occur in a vacuum. They are usually fluid, rapidly evolving situations which require split-second decisions based on an individual officer’s training, experience and assessment of the situation unfolding in in front of them. Under such circumstances it would be dangerous and possibly irresponsible to risk one’s life and the lives of others worrying about how something might look, given the benefit of 20/20 hindsight.
Another standard calls for “de-escalation” to be the preferred approach to critical incidents. Apparently PERF went to Scotland and became infatuated by seeing what they described as Scottish police backing away from suspects with their hands up when in a confrontation (I received an angry denial of this assertion from a frequent visitor to Scotland following an earlier blog on this topic).
Essentially, PERF proposes a set of standards whereby cops retreat, hide, and consider how any use of force might look to the general public.
The LA Times, claims the Graham v. Connor standard of “reasonable force” is misunderstood and profers the opinion that, “Few officers in 1989, the year of the Graham decision, would have seen it as a normal part of police duties to de-escalate tense encounters with suspects.” Many of you out there who were cops in 1989 would loudly disagree with this clear example of the Times’ anti-police bias. Such an assertion is patently false, unsupported by any facts and is a disservice to the reputations of thousands of American law enforcement officers who have been using “de-escalation” since before there was a term for it!
Graham v. Connor was decided on Fourth Amendment principles. In 2007, the US Supreme Court stated in Virginia v. Moore that the Fourth Amendment should reflect “administrable bright-line rules” that cannot be altered by any state law or local rule, as allowing such alteration would “produce a constitutional regime” which would be “vague and unpredictable.”
What the Supreme Court was saying is that a reasonable use of force in California should be evaluated by the same standards as a reasonable use of force in any other state. Some departments may choose to adopt more restrictive rules regarding the use of force by their employees, however, this does nothing to diminish the reasonableness standard as set forth in Graham v. Connor and it doesn’t make sense.
Since PERF and its standards are the topics on the table, we offer this invitation to PERF and Executive Director Chuck Wexler – to participate in a conference which we will host in Los Angeles within the next 90 days. Should Mr. Wexler choose to accept our invitation, the subject of the conference will be PERF’s recommended “standards.”
We at ALADS hope PERF has enough confidence in its proposed standards to welcome the opportunity to discuss and debate them with our members and invited guests. How about it, Mr. Wexler?
Sean Van Leeuwen is Vice President of the Association for Los Angeles Deputy Sheriffs. ALADS is the collective bargaining agent and represents more than 8,200 deputy sheriffs and district attorney investigators working in Los Angeles County. Sean can be reached at Svanleeuwen@alads.org.