Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police. Reprinted with permission.
In my two prior editions of the Chief’s Chronicle, I have explored the implications of policy modifications to the Fourth Amendment objective reasonableness standard and the possible impact of policy language and state tort law. In this article, I will use two recent court cases to highlight the potential disconnect that can exist between the reality of human response versus application of the law.
First, a few ground rules:
• Humans are susceptible to mistakes and errors under normal circumstances, and are even more susceptible during high-stress, rapidly evolving situations.
• We are susceptible to selective attention, otherwise known as tunnel vision. We sometimes only see what we are paying attention to and focused on – typically the perceived threat – and miss things in the periphery, such as the presence of pedestrians and/or police officers.
• Auditory exclusion and compromised motor skills can also impede officers during high-stress situations.
• The limited training most police officers receive provides modest assistance, at best, in overcoming these effects and making decisions during high-stress situations.
Another critical concept to introduce here is that of action version reaction. Officers usually are reacting to the decisions of others. Studies have shown that a person can act faster than an officer can react in a use of force scenario.(1) Specifically, a suspect with his gun pointed down at his side can typically raise and shoot at a police officer before the officer, who has his or her gun at the high ready, can shoot at the suspect.
While that may seem counter-intuitive, it happens because decision-making takes time. The officer in such a scenario must perceive and absorb the stimuli, process it within context, decide on a response and then execute the motor program to physically initiate and perform the response. The suspect, however, has already completed the first three of these four steps without the officer’s knowledge, requiring the officer to try to complete all four in the time it takes the suspect to raise and fire the gun.
The decision-making process necessary for an officer to start shooting will also apply to the decision to stop shooting. In other words, it can take time for an officer to realize the threat a suspect has presented is now over – resulting in additional trigger pulls after the suspect is neutralized.(2)
How does this impact policy? Since officers may already be at a disadvantage, the last thing agencies should do is to create overly restrictive use of force policies that may not be possible for officers to adhere to. To further complicate the realities of use of force situations, what if the courts do not properly apply the law? Or what if the judge or the litigants in the case do not understand the limitations of human physiology under stress?
White v. Pauly, 137 S.Ct. 548 (2017)
Daniel Pauly was allegedly driving recklessly, which led to a road rage incident with two women. After a brief roadside confrontation with them, he left the scene and drove to his house nearby where he lived with his brother, Samuel. The police were called by the women and the officers decided to respond to the Pauly home to speak with Daniel about the incident, although no charges were to be filed. Two officers approached the house in a covert manner, using their flashlights only intermittently.
The brothers eventually became aware of the officers and yelled out at them. The officers’ claim they identified themselves; the lawsuit claims they did not. The brothers armed themselves with a handgun and a shotgun and yelled out, “We have guns.”
Officer White arrived at this point. He drew his gun and took cover behind a stone wall about 50 feet from the front of the house. Daniel fired two shotgun blasts out the back door and Samuel opened a front window and pointed his gun in Officer White’s direction. Another officer fired at Samuel but missed, and then White shot and killed Samuel.
The Court of Appeals for the 10th Circuit denied summary judgement for all three officers at the scene, but analyzed the first two officers on the scene separately from Officer White. The first two officers were denied qualified immunity because the plaintiff raised an issue of fact as to whether they properly identified themselves. This was important—if they did not, then the officers, according to the court, should have realized their conduct would cause the brothers to defend their home.
Officer White, arriving after the verbal exchange, was denied qualified immunity for a separate reason. The court ruled a jury could conclude Officer White’s use of deadly force was not reasonable. The Paulys could not have shot Officer White unless he moved from behind the stone wall. Therefore, the court reasoned, a jury could conclude Officer White was required to warn Pauly before using deadly force, as established in Tennessee v. Garner (471 U.S. 1 (1985)) and Graham v. Connor (490 U.S. 386 (1989)).
The U.S. Supreme Court reversed as to Officer White, ruling that the requirement of “clearly established law” must be particularized to the facts of the case and cannot be used in general terms by just citing Garner and Graham. Federal law does not prohibit a reasonable officer who arrives late at an incident from assuming that proper procedures and identification have been followed by other officers up to this point.
The Supreme Court hears a very small number of cases that are appealed to it. In prior cases, the Court has made clear to all the circuit courts of appeals that general “clearly established law” statements are not acceptable to provide the necessary notice to law enforcement. Clearly established law must come from a case that could easily fit into a similar fact pattern, and Graham and Garner do not do that in this case. Garner dealt with a situation involving a fleeing felon, which is nowhere near the facts of this case. While the first two officers may have made some tactical mistakes, and may or may not have adequately identified themselves, forcing officers while shots are being fired to have to give away their exact location and possibly expose themselves to gunfire in the process has never been the law.
In such situations officers are already at a disadvantage; to require that they must place themselves at more of a disadvantage is absurd. If the Supreme Court had not heard this case, the “warning issue” would have gone to a jury to decide. Ironically, the 10th Circuit in this case violated “clearly established law” themselves.
Bah v. The City of New York, 2017 WL 435823 (S.D.N.Y. 2017)
The facts of this case are complex and detailed, but for purposes of this article I will summarize them succinctly. Mohamed Bah was emotionally disturbed and his mother called 911 to request an ambulance to take him to the hospital. Officers arrived and the mother indicated that Bah was alone in the apartment. When the officers’ initial attempts to communicate with Bah were unsuccessful, the Emergency Services Unit (ESU) was requested and arrived at the apartment.
After a time, the door opened. Whether Bah opened it or whether it was because of something the ESU officers did is a point of disagreement between the parties. The officers allege that Bah attacked them with a knife, but the plaintiff disputed that contention. What is not in dispute is that officers discharged two TASERs, along with a less-lethal round. These measures were ineffective at subduing Bah, however, and ultimately, officers discharged 10 rounds from their service weapons, killing Bah.
The court addressed multiple legal issues, including the denial of qualified immunity to the officers as to the legality of their entering the apartment under these circumstances, but I will focus on one issue: Specifically, the court stated, “Plaintiff’s version of the facts supporting the excessive force claims is that the final shot to the head that killed Bah was fired at close range while Bah was lying wounded on the ground after being previously shot multiple times by the officers. According to plaintiff’s version, Bah was no longer attacking the officers with a knife and posed no threat to the officers or anyone else. If proven, this would violate a clearly established right…” (emphasis added).
This ruling will now allow the issue to go to trial for a jury to decide, unless it is settled first.
This is clearly a tragic situation and one that has repeated itself in cases across the country. Police are called for a person in crisis and the situation turns deadly. Tragic as it is, it happened and now the officers and the city must defend the claim.
Decision-making takes time. The officers in this case perceived a threat, processed it in context, decided on a course of action, and executed the resulting motor program to fulfill the task – start pulling the trigger. As the officers were firing, they would also be unconsciously tracking Bah as he moved and fell. Depending upon how many officers were firing, 10 rounds could have been fired in 1 to 1.5 seconds or less. It is entirely possible, and likely, that the final, fatal round was fired during this recognition period. The officers may not have had enough time to cognitively process the fact that Bah was down and the threat was over.
This is a reality of human reaction and decision-making. So yes, it is entirely probable that the expert for the plaintiff may be able to prove that the fatal wound was inflicted while Bah was on the ground. But the city may in turn be able to prove that this was an unavoidable result of the human decision-making process.
I hope these articles, taken together, give police executives pause about trying to change human behavior with mere words in a policy. Putting content in policy that may sound good and may appease some in the community is not effective. We must continue to train our officers about the impact of stressful encounters and through such awareness hope that they make sound tactical decisions.
The courts do not always consistently apply the law, let alone understand the physiological effects of stress on police officers. Thorough examination of incidents can help officers to learn to handle future situations better. Was it necessary to sneak up on a house in the dark to interview a suspect in a road rage incident where no arrest was going to be made? If the ESU did breach Bah’s apartment door, was it necessary at that time? I am not passing judgment in either case, instead challenging police executives to critically review incidents so as to help officers grow professionally and make better decisions, with the ultimate goal being to minimize the situations they do not control.
And when officers are forced into such situations, and criminal or civil litigation results, counsel must understand the correct application of the law and how physiological factors affect officers’ actions during use of force situations.
1. See Blair J., Pollock J, Montague D. et al (2011) Reasonableness and Reaction Time. Police Quarterly, 14:323 DOI 10.1177/1098611111423737; Lewinski W. & Hudson B. (2003) Reaction Times in Lethal Force Encounters: Time to Start Shooting? Time to Stop Shooting? The Tempe Study. Police Marksman Vol 28 No. 5 Sept/Oct. P. 26-29.; and Lewinski W. & Hudson B. (2003) The Impact of Visual Complexity, Decision Making and Anticipation: The Tempe Study Experiments 3 & 5. Police Marksman Nov/Dec. P. 24-27.
2. Lewinski W.J., Hudson W.B., Dysterheft J.L. (2014) Police Officer Reaction Time to Start and Stop Shooting: The Influence of Decision-Making and Pattern Recognition. Law Enforcement Executive Forum, 14(2), 1-16