Grab a Snickers, this is going to be a long column. However, I think it is important.
If you have not been watching the coverage of what has been transpiring nationally with law enforcement, this column may be a bit confusing. If you have, you will know there has been some rift amongst the public and law enforcement lately in our nation. Primarily, Minnesota has been a flashpoint of some of the biggest controversy nationwide. I am reading a book called “Predictable Surprises” by Max H. Bazerman and Michael D. Watkins. It has to do with “the disasters you should have seen coming, and how to prevent them” as stated on the cover of the book. Additionally, the company that helps write our policy manuals (Lexipol) has a tagline of, “Predictable is Preventable.” These things are important as we delve into this topic.
Officer Derek Chauvin of Minneapolis Police Department and Officer Kim Potter of Brooklyn Center Police Department have both been convicted of the felonious killing of a human being in the course of their duties. Chauvin knelt on George Floyd’s neck for nine (9) minutes and twenty-nine (29) seconds and Potter mistakenly shot Daunte Wright with her handgun when she mistook it for a Taser. I believe many in the nation expect police to “have each other’s back” and “cover for each other” when these things occur. From my experience, it just isn’t the case. The adage, “Nobody hates a bad cop more than a good cop” is very true. I am certain corruption occurs in public safety, but I have not seen it where I have worked.
I was a very proactive street cop in my day. But I always policed with respect. I was appalled to see the video of former Officer Chauvin. He was held accountable for George Floyd’s death for good reason. In California we have long had the “duty to intercede.” In fact, in my police academy in 1999, one of our scenario tests was to see if we would step-in when our partner was getting “too rough” with a suspect. We did not know prior to the test that if you did not intervene, you failed. Some failed. We learned from the academy setting, all the way through field training, then through policy, procedure, and law, that we were always expected to step in when an officer was losing their temper. We are human, we lose our temper. If you have ever been punched in the face, or spit on, you can see how quickly emotion can take over. However, we are expected, and required, to stay on an even keel. Further, we always need to watch out for our fellow officers/deputies to make sure they don’t make mistakes like the ones in Minneapolis and Brooklyn Center.
I have been a use of force instructor for 21 years and have been a “Taser” instructor for 15 years. I have also been an In-Custody Death Prevention instructor for 14 years. In this office, we train to always use the least amount of force necessary to safely effect an arrest. We also teach compliance must come with reward. So, if you put a control hold on someone, and they begin to comply, you immediately release pressure to reward compliance. We also train in “excited/agitated delirium.” This condition, if not recognized and mitigated, leads to in-custody or arrest-related death. In San Benito County, we train to see the signs and summon medical aid immediately. The crime takes a back seat to the medical crisis. Not all agencies do this. This is a shame as we know this condition exists, and lives are lost if you don’t train to see the signs. Remember, as Lexipol says, “Predicable is Preventable.”
George Floyd resisted arrest, yes. He was taken to the ground and was knelt on. That same thing happens numerous times in this country every day. The problem truly started when the officers on-scene failed to realize Floyd was in distress and was no longer resisting. They failed to summon medical aid. They failed to put him in a rescue position. They failed to push Chauvin off Floyd’s neck and take over to calm things down. They failed to realize the criminal activity had turned into a medical emergency. They failed to de-escalate and focus on lifesaving. Therefore, they are all responsible for what happened to Floyd. I believe society would feel differently if Chauvin and his partners realized Floyd was in distress and began life-saving efforts. In my opinion, Chauvin, through what is often referred to as “condition black,” froze up and failed to see what was happening right beneath him. In the video he looks lost, his eyes are glazed over. He looks confused and disconnected. He clearly lacked the tools necessary to do his job. Was it training? Was it the selection process of Minneapolis PD? Was it failed chances to intervene in his behavior? Perhaps a bit of all those things. However, failure to train is preventable. Hiring sub-standard people is preventable. Not holding staff accountable is preventable. And so, a life is lost. Intent doesn’t really matter.
In arrest control, we teach what we call the “five conditions.” These conditions are states of mind we need to be aware of in law enforcement. They are:
Condition White: You are totally unaware of your surroundings and totally unprepared for even the prospect of danger. In policework, we are never supposed to be in this state. This is the state you are in while lying on the beach or settling down for a nap.
Condition Yellow: You are relaxed but alert. You are not expecting trouble, but you are aware of your environment, so you would recognize a problem if it arose. Most people find themselves in this state when watching their children play at the park, or the beach. You are not expecting a problem, but you are present in case something happens.
Condition Orange: This is the state of mind in which we begin our day, in law enforcement, and we never truly get out of it. You are aware there are threats around you, and you are prepared to react at any moment. It is not paranoia; it is a heightened state of being alert for danger. Some of us never leave this state, even when we should be in “white” while off-duty and on vacation. We are just programmed to be always alert. It is annoying for our families.
Condition Red: Something has occurred or is occurring, and you are facing one or more threats you reasonably believe might do harm. You must be prepared to take control of the threat and stop it by reasonable means, including use of deadly force.
Condition Black: You are in a blind state of panic where you are unable to react to the situation because you have developed neither the inner tools nor the outer skills with which to react. This is the worst condition for a peace officer to ever be in. This is where cops get killed and mistakes are made. You can train to avoid this and should evaluate your staff to see the warning signs. Some people just are not cut out for policework, and that is ok. We should never retain substandard cops.
I personally do not believe Derek Chauvin had the intent to kill George Floyd that day. But that does not matter. In public safety we are held to a higher standard. We are supposed to protect life. Yes, there are times where deadly force is necessary, but it is always to protect life. It seems counter-intuitive, but that is our job. Sometimes force likely to cause death or great bodily injury is warranted. Know this; we never use force to kill, we use force to stop the threat. Sometimes death is a result of that force. But that is not the intention. What Chauvin did was inexcusable. He had no reason to kneel on a man’s neck for 9 minutes and 29 seconds. None. So, he is held accountable.
Fast-forward to Brooklyn Center, Minnesota. Officer Kim Potter is covering a traffic stop after an attempted warrant service of the driver. The driver, Daunte Wright, decided to resist arrest and attempt to flee. He made that decision. He chose to ignore the command and enter his car to flee. Officer Potter had her handgun drawn and pointed at him when he entered his vehicle. She told him she was going to “tase” him and he continued to attempt to flee. She fired her handgun at him while yelling, “Taser, Taser, Taser!” Mr. Wright was struck by a bullet and later died from the injuries sustained. Immediately former Officer Potter realized what transpired and had an emotional breakdown on video.
It is a clear case of “weapon confusion.” My wife asked me recently if I truly believed that was such a thing. I told her I did. Believing it occurs is not the same as believing it is ok, or it is an excuse. As a lay person, and a supporter of law enforcement, my wife struggles with believing a police officer can ever mistake his or her gun for a taser. However, it is a known phenomenon, and we do all we can to train around it. These mistakes occur in “condition black.” The most widely publicized case of weapon confusion, prior to this, was the shooting of Oscar Grant by BART Police Officer Johannes Mehserle. In that case, Mehserle was convicted of involuntary manslaughter. I have spoken with his counsel in the case as well as the man that trained him. I am certain Mehserle intended to “tase” Oscar Grant, not execute him. But that does not mean he should get away with it minus criminal or civil liability. Mehserle was a new officer and it was proven he had very inadequate training. In fact, prior to that day, Mehserle had only physically drawn his Taser less than a handful of times, ever. That includes his “training.” The killing of Oscar Grant was therefore preventable and also should have been predictable.
Prior to current times, these cases were generally handled through a civil process. Many times, the family of the decedent would make a tort claim, suing the agency and city/county for a wrongful death/civil rights violation. Often included is the claim of failure to train and/or deliberate indifference. To successfully sue an agency for inadequate training, a plaintiff must establish four factors: “(1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city/county towards persons with whom the police officers come into contact; and (4) there is a direct causal link between the constitutional deprivation and the inadequate training.”
Failure to train can also be an “excuse” for the accused. For instance, Mehserle, Chauvin or Potter could claim their agency did not adequately train them for the situation encountered, therefore relieving themselves of liability and placing blame on the agency. They would need to also meet the aforementioned four criteria. This has been used successfully in the past, and at times it can be legitimate.
Here is why that is a problem. Contact with subjects who resist are not uncommon in law enforcement. They should be, but they aren’t. We have come to a point where people believe when a peace officer tells them to do something, they simply do not have to. It happens time, and time again. We give an order or a command, and the person simply refuses to comply. They may not agree with the order, they may be trying to flee, they may be intoxicated, or they may simply want to push back against law enforcement as an authoritative body. Here in our office, I expect our deputies to adhere to the “ask-tell-make” style of policing when safe and reasonable to do so. They ask for compliance. If they don’t get it, they tell the person to comply. If they still do not get it, they make the person comply usually through some type of force. We truly should never have to get past step one, the ask.
There is a process, through civilian complaints, where deputy sheriffs and police officers are to be held accountable if their actions are against policy, or law. Often it is inappropriate for us to try to explain why we are giving a certain order. For example, we get a call of a domestic disturbance, and the involved party is described as a male, medium build, Caucasian, wearing a black sweatshirt with a white logo on it. As we get into the area, the deputy sees a Caucasian male wearing a black sweatshirt with a logo. He makes an enforcement stop. It may turn out the person stopped was not involved in any way. The person stopped knows what they were doing prior to the stop, therefore the stop is surprising to them and sometimes offensive. Conversely, the deputy or officer has no idea what the person had been doing, or if they are even the correct person to stop. But it is the duty of the deputy or officer to stop a person matching the description of the involved party. It is literally what we are paid to do. But this simple investigative stop may become a violent confrontation. If the person we are trying to stop simply wants to argue, not comply with a lawful order, and/or attempts to flee, force will likely be used. The investigative stop may turn into a crime, solely based on the actions of the person stopped. That is not ideal, but it still happens.
Often these encounters come down to the trust people have in their police force. As I have stated before, I am a firm believer in the Peelian Principles of Policing. It is where the community allows themselves to be policed. If we ever lose public trust, chaos can ensue. This is happening right now in Portland, Oregon. It happened in Ferguson-Missouri, Minneapolis-Minnesota, and other cities in our country.
Therefore, I will fight to have my staff receive pay that will compete with surrounding agencies so we too can attract and retain the best candidates possible. I will not fill a seat with a substandard person. I will not tolerate unprofessional or unethical behavior. I will have all complaints investigated. I will advocate for the funding to provide training to our very young staff. Our county is not wealthy. But, we must invest the proper amount of money in our Sheriff’s Office to make sure we have the best possible candidates, with the best possible training, to never find ourselves in the situation plaguing other cities in our nation. Remember, “Predictable is Preventable.” I do not ever want to be fooled by a “Predicable Surprise.” You can look forward to a new era of community policing from my office. We will be connecting with all of you in ways you have not seen in this county before. We are bringing community programs, youth diversion and citizen academies in English and Spanish. These things are meant to bring us together and provide clarity, which in turn fosters trust. This is YOUR Sheriff’s Office. I am just the man lucky enough to be leading it on your behalf. It truly is an honor.