A few weeks ago, I wrote an article criticizing the existence of citizen review panels and their role in supervising law enforcement agencies. The danger, I wrote, was that groups of untrained civilians would judge the actions of professional LEOs and try to influence the way the law enforcement agency conducts business. That concern has yet again been realized in Los Angeles with a recent report by the Inspector General of the Los Angeles Police Commission.

The report, issued on June 27, 2012, takes issue with the use of force statistics and reporting by the Los Angeles Police Department (LAPD) regarding officer involved shootings. The report presents such a bizarre twisting of the facts and statistical analysis which defy logic. Predictably, the media reports are even more strained in their attempts to interpret the results. So, risking the folly of an attempt to reduce the morass to a position of clarity, at least for a moment, I will do my best to explain the report.

The LAPD reports statistics on OIS based upon the number of LEOs who fire shots at a suspect. For instance, one officer shoots one suspect? This is reported as one OIS. When looking at an increase in OIS, police officials offered the explanation that assaults on LEOs rose in the same time period. However, the Inspector General took issue with this theory. Why, you ask? Because he determined that when one suspect assaults more than one LEO, for example by pointing a weapon at a group of LEOs, this is reported as an assault on multiple LEOs. This created, for the Inspector General, a statistic that does not reflect the “reality” on the street. More importantly, as I predicted a few weeks ago, this created a new reason to question the number of OIS. Stated simply, “If assaults on LEOs were not truly up, then why was there an increase in the number of OIS?”

In response to this report, the earth-shattering suggestion is that OIS should be evaluated as to whether or not the use of force was within policy. The corollary to this suggestion, which should have been the norm at all times, is that whether or not OIS were within policy was not the end of the analysis because the statistics played a role in the evaluation of the OIS! My first problem with this, and I have several, is that no LEO has faced down an armed assailant and thought for a moment about the incidence of assaults on other LEOs! In that instant, they think about the law regarding the use of force and whether or not they will go home to their family! In every sense, if the use of force is within the law, it should be within policy.

Think for a moment about the ramifications of the use of such statistics. Each OIS is explained and justified based upon the law not whether or not the LEO works in a high crime area, has used deadly force in the past 12 months or has been assaulted in the past! I doubt any citizen ever called 911 because they believed the incidence of assaults in their area was up. They call because someone is threatening them or attempting to force entry into their home.

The true folly of the report is that the calculation of the number of victims is a matter of standardized reporting requirements of crime statistics and the basic tenets of criminal law! As every LEO knows, when a suspect threatens 5 LEOs with a tire iron, he has committed an assault on every LEO on the scene!

The same is true when a robber waives a gun in a bank full of customers. The bad guy is charged with one count of aggravated assault, or the state equivalent, for each customer. So why should LEOs be any different? Once again, we see people stating, at the heart of this controversy, that being assaulted is “just part of the job” for a LEO. Forgive me if I am not amused.

So, what is the answer? I predict the politicians and bureaucrats in Los Angeles will continue to debate the issue and never consider the ramifications of their efforts in the real world. Meanwhile, the LEOs in the LAPD will keep responding to calls, facing armed threats and protecting themselves, each other and public. Perhaps the officers of the LAPD should respond to the home of one of these commission members following a 911 call and leave their weapons in their vehicles. “Why don’t you have your gun?” they will ask. “So sorry sir, but we have not been assaulted enough this month to justify using deadly force should the need arise.” You just cannot make this stuff up.

Lance LoRusso is an attorney, former LEO and founder of LoRusso Law Firm, PC in Marietta, Georgia.  He is the General Counsel for the Georgia Fraternal Order of Police and author of a blog, www.bluelinelawyer.com.  He speaks at many conferences for law enforcement on use of force, responses to critical incident, and other topics of interest to law enforcement. He will soon release a book for LEOs on critical incidents.

Recently, two Pasadena, California police officers were faced with an officer involved shooting (OIS).  They fired upon Kendrec McDade, a 19-year old African-American man.  Police dispatchers previously advised officers that both McDade, and his accomplice were in possession of a gun.

Oscar Carillo, initially believed to be a victim only, called 911 reporting that two men robbed him.  He stated, “Two guys put a gun in my face.” The police dispatcher established the race of the two suspects, the clothing worn by each, and the direction of travel taken.

In essence, Oscar Carillo verbally placed a gun in the hand of each suspect during his conversation with the dispatcher.  There was no reason for the police department to believe the information Carillo provided was not accurate.  Later, police learned that the information about the guns was false.

Officers responded to the area.  As McDade, the suspect, ran from one officer, he ran in the direction of another seated in his patrol unit.   Community members question why the officer was sitting in the car.  Based on media reports, it appears that the officer was in his patrol unit to use the vehicle to provide cover and concealment.  Cover and concealment are common tactics practiced during firearms training.

Both officers observed McDade reach into his waist area when he approached the officer in the vehicle.  At this point, their handling of this incident had to change. As a result of this threatening movement, each officer fired on him.  Media reports indicate that the officer in the vehicle feared for his life.  The officer in foot pursuit fired to defend the officer in the patrol car.

I believe the officers’ behavior will be found to be an appropriate defensive action.  Both had reason to believe McDade was armed as he actively avoided apprehension and ran in their direction.  Neither officer fired upon McDade initially.  Although both officers had cause for arrest, he had not yet engaged in behavior, which would cause either of the officers to fear for their lives or that of another.  Once he reached for his waist area, everything changed.

News outlets have not recognized that police took an accomplice (unnamed because he was a juvenile) into custody without the use of deadly physical force.  This suggests that one of two things occurred.  Either the juvenile accomplice surrendered to the police, or he put up a minimal amount of resistance.

The unfortunate result of our 24-hour news cycle and a generally hostile atmosphere toward law enforcement in the media and within some communities is a rush to judgment on any use of force incident.  At this time, the media and the community are inappropriately asking which officer fired first.  It doesn’t matter.  What is important is if the actions of the officers were appropriate in meeting departmental guidelines and recognized standards for using force.

The United States Supreme Court’s definition of the appropriate use of force under Graham v. Connor is that officers must use no more force than is objectively reasonable.  Graham v. Connor is the metric for use of force investigations.  The finding of the Supreme Court in Graham was that all use of force arrests will be judged by the objective reasonable standard of the Fourth Amendment.

The Court also held that use of force will be viewed from the perspective of an officer on the scene and without the benefit of 20/20 hindsight.  The fact that most members of society are not aware of this is the very reason tension fills the air when a life is lost as a result of an OIS.  What officers perceived at the scene and what the media, and the public perceive in retrospect may be very different.

The Supreme Court indicated the following three-part test is required in order to determine objective reasonableness:

How serious is the offense?

Did the suspect pose a threat to the officer or others?

Was the suspect actively resisting or trying to evade arrest?

Many communities fail to assign any responsibility to their constituents, as is the case in the Pasadena incident.  McDade and the accomplice chose to commit a crime.  Carillo chose to lie about a portion of that crime.  McDade chose to run from police.  Pasadena Police Department officers were put into a position in which one officer perceived an immediate threat to his life, and a second officer perceived a threat on the life of his fellow officer. After the shooting occurred, police learned that Carillo lied about the suspects having guns to initiate a quicker police response.  These facts do not remove the need for an internal investigation to be initiated immediately to determine if the officers involved used objective reasonableness.

One life lost is one life too many whether it is a member of the public or a law enforcement officer.  The public tends not to appreciate law enforcement’s professionalism.  Approximately, 800,000 police officers serve throughout America.  Many never fire a gun during their entire careers.  Officer involved shootings rarely happen.

The public is constantly made aware of an OIS when these incidents go viral across the Internet and receive continual media coverage.  The result is every OIS falls upon the scrutiny of the whole country; yet few citizens are educated on use of force legal issues.  Unfortunately, it is rare that an expert in police use of force or an individual familiar with Graham v. Connor standards is interviewed or quoted in media reports.

The most-recent statistics indicate that law enforcement fatalities are up to 14% over 2010 nationwide.  The threat to LEO’s is quite clear.  Use of force incidents are actually a response to a threat; that is, a defensive vs. an offensive tactic.  Officers are not trained to kill.  Police are trained to protect themselves and others as dictated by the circumstances.  Officers involved in an OIS become traumatized and can even require hospitalization.  No LEO takes an OIS lightly.

I always open my first day of class with my college criminal-justice students by discussing an OIS as well as circumstances involved in being detained in public by a police officer.  I emphasize the reasons why an LEO may temporarily detain them.  I brief my students about how to avoid escalation of an incident and respectfully respond to police lawful orders.  This opens up dialogue with them. Communication is always the key to gain cooperation through understanding.

Police officers are held accountable via departmental guidelines, use of force investigations, internal affairs/professional standards offices, criminal trials, civil litigation, and trial by media. Police departments and their communities must also work together to educate citizens about behavior, which can lead to a tragic incident like the McDade shooting.  Under Graham v. Connor, both the behavior of the citizen and that of police is the measuring stick which determines on a case by case basis if objective reasonableness was present during a use of force incident.

Learn more about this article here:

http://articles.cnn.com/2011-12-12/us/us_law-enforcement-deaths-2011_1_death-toll-police-officer-craig-floyd?_s=PM:US

http://articles.latimes.com/2012/mar/29/local/la-me-pasadena-shooting-20120329

http://www.911dispatch.com/2012/03/29/police-fatally-shoot-suspect-911-caller-arrested/

http://www.pasadenastarnews.com/news/ci_20279050/pasadena-police-arrest-9-1-1-caller-kendrec

http://supreme.justia.com/cases/federal/us/490/386/

On October 17, 2010, LEOs from the Mt. Pleasant and Pleasantville police departments in Westchester County, New York, responded to a disturbance involving a crowd in front of a bar. A short time later, a 20 year old man was dead.  Another LEO was being treated for his injuries and investigators began their work to gather evidence, document the events, and determine exactly what happened and why.

The media attention to this incident is apparent from a brief Internet search and continues today. The LEOs involved in this case were cleared of any criminal wrongdoing by a grand jury a few months after the incident. However, in April 2011, Officer Hess had not returned to work due to his injuries. An investigation is reportedly in progress by the Department of Justice. On April 20, 2011, the parents of the decedent filed suit against the LEO and his department. Nearly eighteen months after the incident, the investigations continue, the accusations of criminal misconduct and conspiracy abound, and the truth is still the subject of debate.

The LEOs involved are going through a lot. Officer Hess is waiting for this process to be over. His department is dealing with constant scrutiny of this and other incidents by an endless stream of critics. The investigators, including members of the New York State Police and the Westchester County District Attorney’s Office are standing by their investigations and the grand jury process.

Having represented families who have lost a son, I also know the grief of the parents is incalculable. However, in many ways and for many reasons, the numerous investigations, grand jury hearings and civil suits are not about the LEOs and civilians involved in the underlying incident. The process, however long and difficult, is about a principle that lies at the core of our criminal and civil systems.

Herman Melville, noted author, once said, “Truth uncompromisingly told will always have its ragged edges.” The longer I practice law, the more that statement rings true. Melville, author of Moby Dick, died in 1891. He lived in a time devoid of mass media and video cameras. In Mr. Melville’s world, the truth was told in every forum by individuals who perceived through the lens of their biases and beliefs and received with similar limitations. However, the “ragged edges” of the truth are no less tattered today.

Our society places a high value, the highest in fact, on freedom. Our freedoms to associate, worship, travel, petition our government and speak out are sacrosanct in our country and well they should be. They are guaranteed by our Constitution. So, when the government restricts or deprives a citizen of those freedoms, our Constitution demands that the inquiry into such action be thorough. If the government acts improperly, our system of criminal and civil justice demands redress and compensation. Governments can only act through individuals clothed with the authority of the government entity. In the case of an arrest or officer involved shooting (OIS), the government acts through LEOs and it is the action of those LEOs that will be the subject of scrutiny.

Following an OIS, everyone will play a role. The LEOs involved in the OIS will relate their statements and turn over the evidence in their possession. The investigators will use their training and accepted professional standards to secure the evidence and gather the facts. The prosecutor’s office will gather the evidence and facts and present the information to a grand jury. The person shot or the family of a decedent will have the right to file suit to further inquire about the truth.

The resulting civil suit will be presided over by a judge who will determine if the case is meritorious and if so, ensure that both sides have a fair opportunity to present their case to a jury. As in this case, the investigation also may involve a second level of scrutiny from the federal government. Each involved party will have an independent part in the process. Despite their independence, as in the case of Henry v. Hess, accusations of bias and conspiracy are commonplace.

Unfortunately, the process is slow. I represented a LEO who waited 22 months to be cleared by a grand jury. I’ve worked with LEOs who were eventually cleared by the criminal and civil courts after many years only to still face scrutiny from the media and an Internet that will never purge factual inaccuracies and opinions without any rational basis. While the legal roads will come to an end, it is hard to imagine a true end to the process in our wired society.

So, as LEOs often ask, “Is it worth it?” Is it worth the sleepless nights? Is it worth the barrage of accusations? Is it worth the public criticism?  This question cannot be answered without looking at the process described above and the reasons why that process exists. I also cannot answer that question for any individual LEO. I can only relate my answer and the answers of those I have been privileged to represent following an OIS. The honor of serving and standing for the rights of and in defense of strangers is worth this price. Not because of salaries, benefits or retirements, but because of the underlying value of the process to ensure the rights guaranteed by our Constitution.

The case of Henry v. Hess will go forward, and it will take a great deal of time. Any investigation by the Department of Justice also will take time. In the end, the parties will attempt to determine the truth. They will look for answers and resolution. However, in the end, as in every OIS, the LEOs made a decision to use deadly force based solely on the information and circumstances facing them in a fraction of a second. The statements of witnesses will be influenced by the limitations of bias, personal beliefs and the passage of time as well as poor lighting, adrenaline, tunnel vision and auditory exclusion. More than 120 years after his death, Mr. Melville’s words still ring true and we must trust the system to find the truth no matter how ragged the edges. Stay safe.

Lance LoRusso is an attorney, former LEO, and founder of LoRusso Law Firm, PC in Marietta, Georgia.  He is the General Counsel for the Georgia Fraternal Order of Police and author of a blog, www.bluelinelawyer.com.  He speaks at many conferences for law enforcement on use of force, responses to critical incident, and other topics of interest to law enforcement. He will soon release a book for LEOs on critical incidents.

In my thirty plus years as a police officer I have developed a mind frame that the possibility exists that one day I could be placed in a situation where I would be required to use my firearm in defense of myself or another. As much as my mind understands this possibility is in place, I know my heart will never be prepared for such an outcome.

Police officers are trained and educated in the protection of life and property. Anybody who does not live, eat, and breathe within the ever-evolving dynamics of the police environment will never comprehend what stressors are in place prior, during, and after an officer involved shooting (OIS). Ironically, once the initial confrontation is over, it truly has just begun.

An officer is most likely to overcome a near-death experience if equipped with what is known as the warrior’s mindset.  This term suggests firearms training, defensive tactics, and close quarter combat training prepares an officer to kill. That is not correct. This term simply means the officer is prepared to live!

Most members of the public do not understand the stress created when officers are dispatched to a scene when one or more people have called 911 yelling and screaming in an excited manner. The callers need help. A cop is needed! Right now! In many instances, the police respond without knowing what awaits them. Then again, people have no understanding what it is like to be on patrol and to happen across a bad situation which before your very eyes is close to spiraling out of control.

Fortunately, for me, although there were times I had my gun at the ready position; I have not needed to utilize deadly physical force. What about those officers not as fortunate as I am? These are the officers who were drawn into a situation and due to the circumstances unique to the particular incident resulted in the officer(s) on scene shooting their firearm. The public does not understand that there is no satisfaction or enjoyment in taking a life. An officer is not congratulated or patted on the back for utilizing his firearm. It is overlooked by the media a police officer utilizes his weapon in one of two scenarios; the officer is defending oneself or another!

I have attended seminars over the years where officers involved in an OIS have spoken about their experiences. It was important to me to do this because all of us in law enforcement will not be involved in a deadly use of force encounter.  However, as a part of management, one needs to know what possibilities await.   Management has the responsibility to prepare today for what tomorrow may bring. An OIS is to be initiated to address four separate entities, which are connected as one by the incident:

1) The suspect(s)

2) The police officer(s) involved.

3) The Police Department

4) The Community

An OIS generates a host of questions which need to be answered with the cooperation of the officer.  At the scene of the shooting, an officer will be asked limited questions regarding what happened. The questions are asked to determine as best as possible how the incident began as well as to determine if the crime scene itself needs to be extended.  Quite possibly, two or three crime scenes may need to be set up if shots were fired at different locations. This initial questioning does not involve an official statement by the officer regarding his role. The purpose is simply fact finding. The investigators want to ensure a complete and thorough investigation is completed.

The officer will then be transported to the hospital for medical attention. Trauma is the primary concern when an OIS occurs. The officer tends to replay the incident in his mind. This occurs because police officers are not trained to kill. All officers are trained to defend themselves and others to overcome the potential use of deadly physical force. Utilizing a firearm is a defensive action! This tends to go unrecognized. Police are often considered to be the initiators of an unnecessary use of force when officers actually are the responders. This does not provide officers a license to kill. The use of force initiated must fall within the objective reasonableness guidelines of Graham v Connor for it to be justified under the law.

Once the officer leaves the hospital, he or she will be given about48 hours before an official statement of the incident is given to the investigation team. The officer will also have the right to speak with his attorney. This is very wise to ensure the facts are obtained. Some people may be of the opinion the officer is being given an opportunity to make up a story to justify the actions taken. This is not the case due to the fact the investigators have had 48 hours to conduct a crime scene, examine evidence, possibly interview people, other officers, and evaluate any surveillance and audio-video concerning the incident. More often than not the investigators have a fairly good idea of what happened. It is now the office’s turn to connect the dots which will either serve to bring the investigation to close or extend it to ensure all issues are addressed.

It is wise to permit the officer to return to the crime scene to conduct a walk-through with an attorney. The Force Science Institute (FSI) conducted research indicating that a police officer needs to sleep in order to regain memory of what happened. Prior to this, an officer may cry or even experience rage at the suspect for placing him or her in a position where he or she had to fire upon the suspect.

An officer may need to defend himself as many as five times. Aside from being found not guilty of violating department charges, an action may be sought in a criminal and civil court on both the state and federal level. When it is all said and done, the officer may still be condemned in the eyes of the media and members of the community the officer initiated action to protect. Officers protect and serve!

I have attached a video for a general overview regarding an OIS. The video is a part of the FSI News Article # 194, published in December, 2011. This video tactfully addresses the myths of wrongdoing on the part of the police by addressing the reality of an OIS.

Learn more about this article here:

Graham v. Connor, 490 U.S. 386 (1989)

Force Science Institute

FSI combats public-myths about police shootings