ADVANCED TOPICS IN POLICE ETHICS
"I know what you're thinking, punk. You're thinkin', 'Did he fire six shots or only five?' (Dirty Harry)
Nothing defines the central role of police in society better than the monopoly over unquestionable use of force. Unquestionable is the key term, as in there will be no room for argument. However, arguments arise when police use of force rises to the level of lethality. Deadly force serves no purpose in making offenders accountable, and granted, most incidents fall into the realm of self-defense, nothing brings out public and private reactions more than when a citizen dies at the hands of police. It is this particular area of interest which has prompted critics to say that police culture is an adrenaline-soaked culture, permeated by values such as aggressiveness, toughness, and relentlessness. Stronger critics might go so far as to say that policing represents a cult of violence. Police subculture studies abound which are based on anecdotal evidence, but the field of study known as deadly force is quite interested in rigorous research. Numbers matter, and the stakes are high, even in regard to conceptualization of terms.
Deadly force is a subtype of excessive force. Deadly force is defined as such force readily capable of, or likely to cause, death or serious bodily harm (Alpert & Fridel 1992). Some states, but not all, have statutory definitions of deadly force, and a common feature to all definitions is that deadly force refers to a means, not an outcome. In other words, no one has to die for deadly force to be "deadly" force. All that's required is a chance of someone dying. So, with all seriousness, an examination of so-called "high anxiety" encounters is warranted.
About 2 million of all total arrests every year involve police use of force, reflecting the number of suspects who have chosen to come along with police "the hard way." Weaponless (or strong hold) tactics are the most common kind of force, and these occur frequently when alcohol, drugs, or mental illness are involved on behalf of the suspect. A small percentage of officers appear to be over-represented among the more extreme incidents of force involving impact or use of a weapon. The following continuum of force is an expanded adaptation from Skolnick & Fyfe (1993), and rather clearly shows the various levels of force, or what is more commonly called the "ladder" of force:
|A Continuum of Police Use of Force|
|Mere presence||The officer doesn't have to say a word; the sheer physical presence, the uniform or other police markings force the subject to comply|
|Verbalization||The officer uses persuasive or polite language; e.g. emphatically saying "Sir" or "please"|
|Command voice||A kind of verbal judo in which the tone and inflection of voice carries some kind of command authority in it|
|Swarming||The surrounding of a suspect by the use of additional officers or the practical use of easily visible barricades or obstacles|
|Firm grip||The elbow or shoulder is held to remind the subject to remain still or move in a certain direction|
|Come-along hold||A painful grip on a finger, wrist, or arm is used; similar to an Aikido or martial arts maneuver|
|Impact-Nonlethal (1)||The use of kicks or punches; but primarily the use of pepper spray, sometimes with the use of spray before physical contact is initiated|
|Impact-Nonlethal (2)||The use of kicks or punches; but primarily use of TASER|
|Impact-Nonlethal (3)||The use of kicks or punches; but primarily use of the PR-24 metal baton|
|Impact-Lethal||The use of any impact-nonlethal methods that run the risk of death; but also includes certain martial arts maneuvers like sleeper holds|
|Deadly force||Any use of a weapon; but also includes the use of a vehicle|
Technology is a big issue. Somewhere between the come-along and lethal levels, experts have added new levels, with most people calling it a less-than-lethal level. The basic ideas behind the less-than-lethal force movement are to: (1) minimize the risk of death, even for collateral bystanders; and (2) be appropriate for various special occasions such as vehicle stoppage, riot control, and hostage rescue. Some devices aid with personal survival. Other devices can work through walls. The "less" in less-than-lethal is based on calculating the kinetic energy of a device. Recent years have seen an enormous amount of interest in this topic. The Justice Department has produced a special Less-Than-Lethal Technologies page that is worth a visit. Devices range from simple sand-bag shotguns to sophisticated psychological instruments developed at places like Oak Ridge National Laboratory, such as thermal guns (which heat the body to a temperature of 107 degrees), electromagnetic guns (which produce nausea or epileptic-like seizures), and magnetophosphene guns (which produce the same effect as a blow to the head, producing the seeing of "stars"). A concise, if dated (1994), article on these technologies can be found at a Zarc International webpage. The Courts have been reluctant to express their approval for much beyond advanced development with chemical weapons, such as pepper spray.
"Excessive" force, or anything "excessive," is a liability issue for police, and the study of it should involve much more than simply understanding the reasonableness standard in Constitutional law. International law, for instance, has a much better grasp on this than Constitutional law. At the level of impact and beyond, one has to be very careful in determining if those levels are justified, and if not, it makes sense to refer to excessive force as what some individual officers do and excessive use of force as what is practiced on a department-wide basis. In an average year, 600 suspects are shot and killed by police, while another 1,200 are shot and wounded, and 1,800 are shot at and missed. Black property offenders are twice as likely as any other group to be shot at by police, and another interesting statistic is the growing percentage of cases (over 10%) that involve suicide by cop, where a note is sometimes found saying "Sorry to get you involved. I just needed to die."
"Brutality" is a wedge issue in political discussions about use of force. Criminal justice experts are divided over whether racial differences exist with respect to police use of force. Some groups like Amnesty International think that such a pattern exists as part of systematic police brutality. Police brutality is a term used a couple of different ways in criminal justice. The most common way it is referred to in most textbooks is as a kind of excessive force involving the level of impact and beyond where such levels are not needed. Using this definitional approach, brutality is the same as excessive force. Other ways to reference the phrase include defining police brutality as involving the unnecessary and unjustified use of force be it either physical or verbal (Dudley 1991). This definitional approach has never found any credence with the courts. With regard to racist police brutality, respected researchers like Adams (1996) and Tonry (1995) as well as the U.S. government have never unveiled such a pattern. Excessive use of force and deadly force need to be studied without reference to whether systematic bias are parts of it. Far too often, writers jump into the study of issues like racial and gender discrimination without first examining the police use of force literature.
THE BASIC STRUCTURE OF AN ENCOUNTER
"There's no way to evaluate whether it was justified or not; you would have had to been there." This statement is an expression of the split-second syndrome, as that term constitutes a common belief among police officers (Fyfe 1981; 1988). However, it's also a term used to describe some subjective characteristics in each of the stages that researchers have found useful in analyzing deadly force encounters. Those stages are subjective and fleeting, and consist of the following which can be liberally characterized as so:
Anticipation stage -- this describes a feeling that the officer has planned or "visualized" the encounter (deja vu) as it is about to unfold before their eyes
Entry stage -- this describes a gut reaction where training kicks in; for example, whether cover is sought and how the weapon is drawn
Exchange stage -- this describes the compulsion to verbalize or exchange information in some way; most officers are trained to say "drop it," but sometimes all that can be verbalized is "oh shit"
Final frame stage -- this describes the "freeze frame" quality of when impact occurs, and a weapons focus is usually the case; sometimes officers report seeing the bullets whiz away or by
Too often, researchers don't look at anything but the final frame stage, but as we can see from the above, there are a number of other important stages (if "stages" is the correct term to use for these fleeting milliseconds). While it is indeed true that no two deadly force situations are exactly alike, they do share a number of commonalities, particularly in what subjective factors individual officers bring to the situation themselves. For example, there's the personal fears that an officer brings to the situation (in the anticipation stage), there's the remembrance of policy factor in the entry stage (whether training "kicks in"), there's some sort of attempt at hostage negotiation (with one's self as the hostage) during the exchange stage, and there's an audience factor to consider with the final frame stage (whether stray bullets are hitting anybody). Indeed, a deadly force encounter is complicated. Some well-known phenomena include: experiencing time in slow motion, failing to hear clear audible signals, and constriction of the visual field (Patrick and Hall 2005).
THE ETHICS OF A BASIC ENCOUNTER
Although there are many ethical issues involved, a good place to begin is by drawing comparisons to other well-known ethical isues. Elliston (1985) makes an interesting comparison between deadly force and capital punishment utilizing six (6) characteristics, as follows:
|Deadly Force||Capital Punishment|
|1. Self defense||1. Justice principles|
|2. To prevent commission of a crime||2. Social defense (incapacitation & deterrence)|
|3. To arrest a fleeing felon||3. Fallibility or irrevocability|
|4. To recapture an escapee after arrest||4. Sanctity of human life|
|5. To recapture an escapee after imprisonment||5. Due process|
|6. To stop a riot||6. Contemporary moral standards|
Elliston's (1985) purpose seems to involve drawing links or connections between circumstances and settled principles, and in many ways, illustrates the problem in finding any ethical principles to guide deadly force policy. Circumstances justifying deadly force are always situational and temporary in nature. The settled principles of capital punishment all reflect relatively permanent and fixed ideas. For example, shooting a fleeing felon is "connected" to fallibility or irrevocability in the sense that ruling out mistake or error must be involved. Granted, I don't fully understand the connection between due process and escaped prisoners, unless you're supposed to think in some way where they are given a "fighting chance" to get away. There is an unusual American jurisprudence on this, as there is with much of "fleeing felon" doctrine under U.S. constitutional law. The Dutch model is clearer, where police can shoot a running suspect as long as they try to do it in the leg. Something like that is practically non-existent in American law.
The attempt to discover fixed principles that can guide action in fluid situations has been a quest in police science for some time, and in many ways, is also a philosophical ethics concern. It has long been a military concern, and there are some who say police firearms training is little more than police gunfighting. One of the essential points in that lecture is that firearms training has moved (and should move) from basic target practice and shoot-don't-shoot scenarios to tactical training and judgment training. Police departments also attempt to supplement their training with indoctrination on policies and procedures governing the use of deadly force. Since this is a high-liability area for police administrators, it's not surprising that such efforts take place. However, there are other, perhaps more important, factors that can help shed light on control of deadly force.
While training and indoctrination are good things in themselves, a better idea might be to approach the problem by addressing the types and levels of STRESS among individual police officers. It seems important that this be done at the individual level to get at any possible fearful "visualizations" that characterize the anticipation phase of the split-second syndrome. For example, psychoanalysis or dream interpretation might be used, or whatever inquires into horrific "images" that may privately haunt individual officers. Police have fears, and sometimes those fears can be crippling in their psychological impact. Something akin to the implications of Toch's (1992; 2002) research is needed. Let's expand on that line of research.
Every party to an encounter, and even society as a whole, have a vested interest in the "story" about what happened. We will take up the recall problem later, but one of the initial items of media interest relates to the experience of the officer. The media seems to have some pre-ordained expectations in this regard. It is well-known that public expectations affect police officers via exposure to television portrayals of shooting incidents. The media play a fantastic role in this regard, and we know that the "TV Cop" stage of a police career takes place during a certain stage (see below):
|3-4 years||TV cop|
Exactly which career stage is most likely to be involved in "shootings" is a matter of theoretical speculation. Police "shooters" do tend to be generally young and relatively inexperienced, but then, it is possible that a long-time veteran who has never used their gun before will suddenly find themselves in an encounter. The media provides a number of images which are counterproductive, shall we say, to a healthy anticipation of a shooting. Not only does the media seem to focus on the bizarre, macabre, unusually violent, and overdramatized, but TV shows and movies generally rely upon one of the following:
Contrasts -- these are depictions of officers as being vastly different from the rest of "us"
Models -- these are depictions of officers as having superhuman skills and abilities
Labels -- these are depictions of the same old stereotypes about officers
Myths -- these are depictions of officers as legendary or godlike in their commitment
THE ROLE OF PSYCHOLOGY
Violence takes place, according to Toch (1992) for one of five reasons, but there are other functions of aggression well-known in the field of psychology. Let's list these.
Toch's Reasons for Violence and Psychological Functions of Aggression
3. Self-image compensating
|1. to get attention
2. to manipulate others
3. to control others
4. to experience power
5. to increase intimacy
6. to dominate rivals
7. to breakout from confining roles
8. to protect self
9. for revenge
10. for excitement
11. to disrupt a relationship
12. for impression management
13. to conform to expectations
14. for self-destruction
It's natural to focus on the glory, instead of the horror, in violence. The military has known this for years, and it's one reason why those who have seen combat receive so much respect, but standard indoctrination (consisting of pride, conviction, commitment, and being convinced you stand a chance of surviving) can only go so far. What's needed is effective, honest, and real preparation. Police work, like military work, is no place for unfounded optimism. Being unrealistic about the causes and characteristics of violence can lead to rash action and foolish judgments. It's far safer to honestly recognize that use of force is an individual decision, dependent upon human, individual characteristics, and that those who mean to do good only enter into the use of deadly force reluctantly. How to maintain the morale of "reluctant warriors" (police are NOT hired guns to kill people) should be the proper focus of our inquiry. Clearly, anyone who glorifies violence has no business in police work.
THE RECALL PROBLEM
After a shooting incident, as mentioned before, various parties have a vested interest in the "story" about what happened. Concerns will arise over whether the reported story has been fabricated, recalled correctly, or may be biased. There may exist what criminologists call "perceptual distortion" of events leading up to the encounter. Klinger and Brunson (2009) estimate that about 94% of officers admit to some kind of distortion in their "stories." Officer recall may be based on an altered or constructed reality. Memory distortion is commonly associated with high-risk and high-anxiety situations. Fatigue is a factor (Vila 2000), but so is stress (Meyerhoff et al. 2004). We know that every deadly encounter requires a series of decisions, reactions, and movements, but the biomechanics of those situations is not well known.
We must admit that an "adrenalin rush" can and does occur, and we must admit that stress/fatigue/etc. have an effect on cues as well as memory. Police officers since Graham v. Connor 1989 have been held to objective reasonableness standards (just the facts and circumstances; a reasonable officer on the scene; a reasonably prudent and well-trained officer), but it is difficult to remove subjective interpretation (that was murder) from the analysis. Video can even capture a record of the encounter, but people watching the video will interpret it different ways. For many police officers, their career ends with a shooting. Peers are, after all, the most important ones who pass judgment, and many departments fall short of having a full consensus on reasonableness standards. There are many problems with the objective reasonableness standard (see Alpert and Smith 1994), and additional ethical problems come into play when it must be asked: "How much time should elapse before officers are interviewed?" and/or "Who should do the interviewing?"
Simmering tensions exist within a community after a police shooting. There will be polarization of public opinion: one group which is overconfident of police integrity; and another group that can never be satisfied that the police did good. There is a need for public education programs, as well as broader understanding and research on this issue. Citizen police academies are a step in the right direction, but the need exists to reach those people who will never trust the police.
THE LITIGATION CONTEXT
Readers should know that quite a few self-made "forensic experts" exist in this area who will gladly provide their expert testimony for a fee. Social science research can NOT, however, prove if an individual officer experienced perceptual distortions at the time; only during recall. A standard of objective reasonableness also means that it applies to all persons equally, regardless of individual strengths or weaknesses. Lawsuits against police officers typically contain both federal and state law claims. Federal claims are based on the Civil Rights Act (chapter 1983 claims) and require proof of a constitutional violation as well as acting under color of law (e.g., off-duty and/or potentially beyond their lawful authority, but still authorized to act as an authority). State claims are based on negligence, wrongful death, and/or assault and battery. It all boils down to "reasonableness" or that chimera of the concept as outlined in Graham v. Connor (1989). Determining "reasonableness" is a tremendously difficult proposition. The courts have ruled that hindsight doesn't count; and intent or motivation don't count. A lack of consensus is what makes the concept elusive. What is reasonable in one department may not be reasonable in another (tasering, for example). Clearly some standardization is called for.
ACLU Page on Fighting Police Abuse
DOJ Study on Police Use of Force
Human Rights Watch Page on Police Abuse and Accountability
IACP Study on Police Use of Force (pdf)
NCJRS Study on Police Use of Force
Police Use of Deadly Force and Gender Differences (pdf)
Police Use of Force and Racial Differences
Police Use of Nondeadly Force to Make an Arrest
Jerome Skolnick's Theories of Police Deception and Brutality
U.N. Standards on Use of Force and Firearms
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Last updated: Oct 21, 2011
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (2011). "Advanced Police Ethics," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3300/3300lect04a.htm accessed on Oct. 21, 2011.