By Jerry Cooper
I have been watching an online video depicting two NYPD officers being assaulted by a mob in Harlem. The video was published on June 23, 2015, and it appears the actual incident may have taken place on June 19, 2015. I watched the video over and over, until the effects of my rising blood pressure told me to stop. The video shows a woman, who has been arrested, struggling with a female officer and trying to unholster the officer’s firearm. As the video continues, a male subject delivers a pounding to the face of the male officer. This officer was obviously stunned and can be seen trying to shake off the effects of the strike. The printed information accompanying the video says the two assailants were eventually taken into custody. The female officer suffered cuts and scratches, while the male officer was treated for swelling to the face and a cut to his mouth.
In a second separate incident within hours of the first, two Bronx officers were injured when assaulted by a group. One officer suffered a broken eye socket and a broken nose. The other officer had his jaw dislocated.
I keep thinking of a statement from “In the Line of Fire: Violence Against Law Enforcement,” a U. S. Department of Justice publication. It says, “Law enforcement must recognize that in order to serve and protect the larger community, they must first be prepared to protect themselves . . . “
One of the most negligent aspects of training law enforcement in use of force is that we spend so much time telling them what they cannot do, and too little time enlightening them as to what they can do. Use of force training too often drills into the trainee’s head that as a result of using force they can be sued, be criminally charged, ruin their department’s reputation, be given time off due to a lengthy investigation, become de-certified, receive hostile publicity, and cause their agency to lose accreditations or pay higher insurance premiums.
In teaching use of force legal issues to law enforcement officers, I have endeavored to emphasize what they can do. I do think it is necessary to discuss case law detailing how officers have engaged in an unconstitutional use of force, but I try to present the subject in light of what can be done.
The Ninth U. S. Circuit Court of Appeals, sitting in San Francisco, is the most liberal circuit court in the country, and historically has the largest percentage of their cases reversed by the U. S. Supreme Court. (The Fourth U. S. Circuit Court of Appeals, sitting in Richmond, Virginia, has for years been considered the most conservative; however, one of Barack Obama’s campaign promises prior to being elected President was to fill the openings on the Fourth Circuit with liberals, thus completely changing the make-up. It appears the promise has been fulfilled.) Liberal Courts of Appeal are usually less favorable to law enforcement than more conservative courts. To be fair to the Ninth Circuit, however, I have seen some decisions by this court that are very sympathetic towards law enforcement action. I could be wrong, but I believe the Ninth Circuit, as well as other Federal Circuit Courts and Federal District Courts, has “matured” in its realization that law enforcement is a dangerous and difficult job. Consider this quote from the Ninth Circuit:
“ . . . Judges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor’s precision.”
Is it possible that, contrary to the national media’s campaign to show law enforcement officers are out to kill and otherwise deprive citizens of their constitutional rights, police are actually consistently using too little force? According to the U. S. Bureau of Justice, “. . . In a significant number of incidents, police use lower forms of force than are justified.”
Are police officers at times hesitating way too often before escalating the use of force? Many studies tend to show this as being the case. In the law enforcement profession, the fear of being sued is an occupational hazard (del Carmen, 1991). Job performance may be hindered by a preoccupation with litigation (Breslin, Taylor, and Brodsky, 1986).
It is well established in law that a law enforcement officer has a right to use force, up to and including deadly force, to defend himself or a third person against the use, or attempted use, of deadly force. What is “deadly force?” It is force that could result in death or serious injury to a person.
News Flash: No one has a constitutional right to disobey a lawful command given by a law enforcement officer. No one has a right to assault an officer, especially an assault that could result in a serious injury. No one has the right to attempt to arm themselves with a deadly weapon that under the circumstances could be used against a law enforcement officer.
There is plenty of research data that points to the conclusion that officers are more often guilty of using not enough force rather than too much force.
I mentioned the Harlem and Bronx incidents only as a prop. I was not present at the incidents. I don’t have all the facts. I have not seen the incident or investigative reports. I am not insisting “coulda-woulda-shoulda,” but I will ask the question: Did the officers involved in those incidents have a right to use deadly force against the attackers? Was their force level too little? For whatever reason, the officers apparently did not counter deadly force with deadly force; they accomplished their mission using lower levels of force, and under very difficult circumstances that are foreign to most people. For that, they have my admiration. I do not desire to “Monday morning quarterback.” I’m just raising an issue.
In any use of force incident, there are parallel truths at play: 1) verbal de-escalation should always be the goal in a confrontation between a law enforcement officer and a member of the public; and 2) officers must first be prepared to protect themselves. There are a lot of gray area in-between circumstances in which force is clearly excessive and in which force is clearly justified. In fact, most use of force situations falls within this gray area. The U. S. Supreme Court has said that when there is a gray area, deference must be paid to law enforcement (Saucier v. Katz). This is something the national media does not want the public to know.
Law enforcement officers cannot protect others until they first protect themselves.
(In bringing up the training issue, in no way am I blaming use of force trainers. They probably share the least guilt in the push to force law enforcement officers from proactive policing to reactive policing. I will place the blame where I believe it belongs in a future post.)