By Chief (Ret.) Michael Ranalli, Esq.
Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police
The public debate over police use of force continues, with some advocating legal changes. Agencies are revisiting their policies, and some are asking for public comment. This is what the Chicago Police Department did in November 2016 after posting their draft revised use of force policies. Comments posted by two law professors, Sheila Bedi and Craig Futterman, during this period will serve as the focal point for this article.(1)
Bedi and Futterman state:
The policy should delete terms such as “reasonably believes” or “reasonably necessary” because they are confusing and fail to provide clear guidance to officers. The policy should instead read: “The use of deadly force is a measure of last resort that is permissible only when necessary to protect against an imminent threat to life or great bodily injury. As such, an officer may use deadly force only when such force is necessary to prevent: (a) death or great bodily harm from an immediate threat posed to the sworn member or another person, or (b) an arrest from being defeated by resistance or escape, and the person poses an immediate threat of death or great bodily harm to a sworn member or another person unless arrested without delay.” [emphasis added]
To the average reader, this suggested policy language may appear reasonable. But it is contrary to the law and completely ignores the fact that things are not always as they appear. This language assumes that human beings – police officers – will 1) immediately have all the information necessary to them to make a decision and 2) have the mental capacity under stress to make the correct decision.
The language “reasonably believes” or “reasonably necessary” flows from the Supreme Court of the United States and the seminal decision of Graham v. Connor.(2) The court recognized that officers need to make split-second, life-or-death decisions that are not capable of precise definition or mechanical application. Such decisions are to be judged from the perspective of a reasonable officer on the scene and not with the benefit of hindsight. The objective reasonableness standard accepts the reality that officers must make the best call they can with whatever information is available to them, and sometimes that call will turn out to be wrong. The language proposed by the professors would reject this reality and make officers strictly liable should they reasonably but mistakenly perceive a threat.
Human Limitations and Inadequate Training
In so many areas of our society, we tacitly take for granted that humans are prone to mistakes when faced with rapidly evolving situations. So why do so many people fail to consider human error when evaluating police use of force?
Think about it: The existence of instant replay in professional football, baseball and basketball is an outright acknowledgment that humans are fallible. Even without instant replay, professional referees and umpires already have an advantage that police officers do not – the ability to confer and consult with each other after a call is made, and reverse the call if appropriate.
There are some who will bristle at this comparison: “The police can take a life; how can you compare that situation with a game?” But the fact that a use of force decision can have life-or-death consequences does not change the reality of human fallibility, especially when under stress. The question really should be, how can we place police officers in such critical situations and hold them strictly accountable for reasonable perceptions when we are surrounded in everyday life by the reality of human shortcomings?
“But the police are trained to make such decisions!” Oh, really – are they? Most high school athletes will receive more skills training in their sport than most police officers will receive in their entire career. In New York, we give officers about six months of basic training, which includes 40 to 48 hours of defensive tactics training, 48 hours of firearms training, and, depending upon the size of the agency and/or the academy, limited scenario-based role playing and decision making. To be generous, call it about 140 hours of skills training. Then, officers graduate and face the realities of police work in which those skills are infrequently used. As they are perishable skills, officers may not have sufficient mastery to efficiently and effectively apply a necessary skill. If we are going to start holding our officers strictly accountable, then perhaps we need to follow the special forces model and require officers to attend an additional 18 months of specialized training. This would not be a popular option in an environment where there are multiple demands upon tax dollars.
During a recent NFL playoff game between the Seattle Seahawks and the Detroit Lions, Seattle had driven up the field and was on the one-yard line. Russell Wilson floated a pass toward the back of the end zone and receiver Paul Richardson made an incredible one-handed catch for a touchdown.
But several things happened very quickly on this play and not everything was caught by the officials. First, the defender interfered with Richardson, for which an official threw a penalty flag. After calling the penalty, the officials then focused on what they are supposed to primarily focus on – did Richardson catch and control the ball and did he land in-bounds? The answer to these questions was yes, and the play was ruled a touchdown. What the officials did not see, however, since their attention was focused on the catch, was very clear in the subsequent instant replays: While Richardson was reaching out with his left hand for the ball, his right hand was locked onto the defender’s facemask, pulling the defender’s head toward the back of the end zone. This should have resulted in a facemask penalty that would have offset the defender’s penalty, thus negating the touchdown and resulting in a replay of the down. The NFL rules, however, do not allow for review of missed penalty calls in such a situation. So, the play stood as called.
How can a highly-trained NFL official miss such an obvious penalty at such a critical moment? This is likely an example of a phenomenon called “inattention blindness,” which was originally discovered in 1975 and subsequently made famous by the “invisible gorilla” video.(3) In the video, six persons in two teams of three were passing a basketball back and forth. Team members were dressed in either a black or white t-shirt and the subjects watching the video were instructed to count the number of passes made by the team in white. During the video, a person dressed in a gorilla suit passed through the players and pounded his chest. The typical result of this experiment is that half of the study participants do not see the gorilla at all.
How can that be? The subjects were engaged in a specific search task. Our attentional load is limited, and when faced with complex tasks or situations we must decide what to attend to and when.(4) It is not only entirely conceivable, but it is also predictable that NFL officials facing a complex play, with so many different things to try to pay attention to, will miss something. Police officers, when faced with potentially dangerous situations, have the same attentional load limitations. There is only so much that they can “see,” and, as frequently happens in real-life examples, officers can miss things that are obvious with hindsight. To hold them strictly accountable by policy language will not change the reality that their attentional load is limited. And this does not even take into consideration other environmental factors an officer may face that can impact decision making, such as inadequate lighting, inclement weather and the presence of factors known to the officer entering the situation (e.g., encountering a person near the scene of a “shots fired” call).
To add to the problems of limited attentional load, there is also the impact of stress on human physiology. Professional umpires and referees work under periodic mild to moderate stress, but police officers involved in deadly force incidents are subject to extreme stress.
When we perceive a threat, a complex process immediately commences in the brain, resulting in, among other things, the release of adrenaline and cortisol. This is what prepares the body for fight or flight, a response that has allowed our species to survive predatory attacks.(5) But side effects of this process can impede an officer’s ability to properly perceive all available stimulus. Side effects of the fight or flight response include:
• Selective attention, also known as tunnel vision. There will be an immediate tendency to focus on the perceived threat, to the exclusion of all other stimuli. As a result, the officer may fail to perceive peripheral activities.
• Auditory exclusion. This is the hearing equivalent of tunnel vision. People operating in high-stress situations may hear sounds and voices as muffled or distant—or may lose hearing entirely.
• Loss of motor skills. As a person’s heartrate reaches the 175 beats-per-minute mark, they begin to lose their gross motor skills, which can compromise an officer’s ability to effectively use their firearm or apply some type of defensive tactic technique.
Some proponents of restricting police use of force advocate that use of force policies should list situations where use of force would be strictly prohibited. Again, this may sound reasonable, but once you consider the phenomenon of inattention blindness and the human body’s reaction to stress, it is not realistic to expect that any officer would be able to safely call up for mental review the list of prohibited situations and apply that to what he or she is facing. We simply do not have sufficient attentional resources to handle such demands.
Reviewing our use of force policies is a good exercise, especially following incidents that draw public scrutiny. But proposals to restrict use of force policies by eliminating any reference to the objective reasonableness legal standard are misguided and pose a significant legal threat to officers and departments. The objective reasonableness standard exists as an acceptance of the realities officers face when involved in high-stress, use of force encounters. Removing it will not have the desired effect on officer’s behavior. Instead, agencies should focus their time and efforts on providing the needed training to help officers make sound tactical decisions when engaging in certain incidents.
1. Bedi, Sheila A & Futterman, Craig. Comments on the Chicago Police Department’s Proposed Use of Force Guidelines. Accessed January 11, 2017.
2. Graham v. Connor, 490 U.S. 386 (1989)
3. Chabris, C. & Simons, D. (2010) The Invisible Gorilla: How Our Intuitions Deceive Us. New York, Crown Publishing Group.
4. For a discussion of attention, generally: Schmidt, Richard A. and Lee, Timothy D. (2014) Motor Performance and Learning, 5th Edition. Champaign, IL: Human Kinetics, Chapter 3.
5. This article is only intended to be an overview of the relevant issues pertaining to the response to stress. For a general overview, see chapters 1 and 2 of: Sharps, M. (2010) Processing Under Pressure: Stress, Memory and Decision-Making in Law Enforcement. Flushing, NY: Looseleaf Law Publications, Inc. There are also numerous other sources on the topic and some can be find through the Force Science Institute website.
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MIKE RANALLI, ESQ., is a Program Manager II for Lexipol. He retired in 2016 after 10 years as chief of the Glenville (N.Y.) Police Department. He began his career in 1984 with the Colonie (N.Y.) Police Department and held the ranks of patrol officer, sergeant, detective sergeant and lieutenant. Mike is also an attorney and is a frequent presenter on various legal issues including search and seizure, use of force, legal aspects of interrogations and confessions, wrongful convictions, and civil liability. He is a consultant and instructor on police legal issues to the New York State Division of Criminal Justice Services, and has taught officers around New York State for the last 11 years in that capacity. Mike is also a past president of the New York State Association of Chiefs of Police, a member of the IACP Professional Standards, Image & Ethics Committee, and the former Chairman of the New York State Police Law Enforcement Accreditation Council. He is a graduate of the 2009 F.B.I.-Mid-Atlantic Law Enforcement Executive Development Seminar and is a Certified Force Science Analyst.