Unlikely Panacea

longform-original-26531-1416932724-10Pictured above: An Officer who is not retreating
http://www.stltoday.com/news/local/crime-and-courts/after-ferguson-police-consider-tactical-retreat-instead-of-force-in/article_7fa34fed-9770-5860-ad10-4358b4523b76.html

It takes a lot for me to be surprised with the ignorance of an article these days but the following report by St. Louis Post Dispatch Crime Writer, Christine Byers, succeeded in this regard.

First of all, the article begins with the straw man assumption that police training, policy, and subsequent action is reflective of an aggressive, always moving forward, take-no-prisoners, warrior mentality. Outside of tactical/SWAT units, the keep pushing forward mentality described in the article isn’t standard for those in patrol. In fact, looking at Ferguson in particular, remaining stationary holding a line or retreating as ordered by police command was more than a little commonplace. More than once, the line was forced to move back down W. Florissant when things became too dicey or pulled back when gunfire broke out across from the Ferguson PD.

One of Ron Johnson’s first nights, St. Louis County and Highway Patrol rolled teargas to cover an ordered withdrawal from the area while being attacked trying to extract injured officers. More generally, even after assemblies were deemed unlawful to the point that teargas had to be used, those that remained or returned after the gas dissipated were not widely arrested nor pursued beyond a very limited area of control. This is not the behavior of the mindset presupposed in the article.

Ms. Byers further makes the implication that using a policy that encourages tactical retreat will help with community building. The reality on the ground demonstrates the contrary. When officers held back as seen by what I called the Ron “Johnson Doctrine” back in August, officers were immediately criticized for not doing enough to stop the looting. This has resulted in not only widespread media and community condemnation but numerous pending lawsuits against law enforcement and city/county government.

In reference to the Grand Jury Decision on November 24th, many in the Ferguson Twitter Brigade including Sarah Kendzior made a point of outright stating that racism was responsible for “letting” West Florissant burn. Of course, many of these same voices also claimed that it was racist to preemptively activate the Missouri National Guard under the assumption that there would be violence. The bottom line is that community building / reconstruction is impossible if a group is committed to condemning everything you do.

Interestingly, police pursuit policy in nearly all jurisdictions has in fact adopted more retreat friendly guidelines. The result has been a criminal element who know how far to run, how fast to go, and how recklessly to drive in order to get officers to stop chasing them. Pursuits are common place in North County / North City, as are pursuit terminations when the reckless disregard for bystanders has become too great to continue. It is important to note that the reason for adopting these policies has not been an ideological shift but civil liability. Criminal defense and personal injury attorneys have ensured that the case law condemns officers and police administrators for tragedies resulting from pursuits instead of the individual deciding to break the law and fail to yield in the first place.

The answer to preventing tragedies resulting from pursuits is to reduce the need for pursuits by utilizing charges that make the decision to run and put bystanders and property in danger less palatable. As things stand, if Joe Criminal has committed a crime, what reason is there for him to pull over if the police will stop chasing him for driving recklessly? If policy is changed to favor of this type of approach to foot patrol, why would the result be any different?

In reference to the police training discussion from the article, academy instructors universally teach the individual officer not to “be a hero” and put themselves needlessly at risk for two reasons. It doesn’t do anyone any good if the first responding officer winds up injured or dead and it puts other later responding officers at risk trying to help the first officer when they could be helping other people or catching the person responsible for the danger.

In fact, there are a number of calls that are by definition considered “two-person calls” which in reality translates to two or more. An open door or burglary in progress is one such example. A domestic disturbance is another. Sometimes logistics don’t work out the way you want and you find yourself in over your head. However, this is not the result of police training. Sometimes, it’s an officer’s mistake usually stemming from underestimation. Sometimes, it’s just bad luck.

Case in point, the Antonio Martin situation in Berkeley. The call was supposed to just be a larceny in progress. What’s more, as things become suddenly and inexplicably dangerous when Martin pulls a gun, the officer retreats so fast he falls down. This isn’t the mentality of a militarized warrior that the media or the Ferguson Twitter Brigade has been dreaming up. This is a real flesh and blood person who found himself in a dangerous situation and barely survived. Survival mentality not Warrior mentality. He wasn’t committed to pushing forward following some macho idealism related to the old military anachronistic motto, “take that hill.”

It should be noted that the premise behind the article was clearly not in reference to Berkeley but more unsubtly tied to Ferguson and Darren Wilson. Darren Wilson made a number of what are in hindsight tactical errors. Getting as close to Dorian Johnson and Michael Brown was a mistake given what transpired. If either of these individuals had done what Antonio Martin did, Wilson would be dead. Of course, a number of factors might have played into Wilson’s error including that he might have underestimated how big Brown was from his vantage point inside the car. He might not have expected things to escalate as they did to the confrontation inside the car. However, while these are mistakes on Wilson’s part, the notion that Mike Brown gets a pass for his own actions and bears no personal responsibility for attacking the officer is utterly ridiculous.

So now we come to the meat and potatoes of this conversation. In reality, we’re not really discussing police policy and philosophy, but “stand-your-ground” law. Having no obligation to retreat from a dangerous situation you didn’t cause is the fundamental tenant of these laws across all states that have legislated them. Forcing officers through law or policy to retreat is tantamount to overturning these laws for everyone. To that point, there are many who would argue that the laws should in fact be overturned for everyone. The problem with this thinking is that there is never any explanation for why a private citizen or an officer shouldn’t be able to use reasonable force proportionate to the situation to defend themselves from an aggressor.

Some would argue that in practice the force hasn’t been proportionate, but that’s not an error with the law as written.  No stand your ground law has ever been written to advocate disproportionate response.  Along these lines, in the case of Michael Brown, the legal argument has never reasonably been that Darren Wilson had no right to affect an arrest for Brown’s robbery of Ferguson Market. The argument has been that his response to Brown was disproportionate and hyperbolically race based.

It’s easy to say that in hindsight, if Wilson had retreated at the moment Brown fled the car following the first two gunshots, he might not have died. It’s also possible that if he was better trained in the use of blood chokes he could have confidently put Brown to sleep and not felt so reliant on his gun when Brown came back towards him. Of course, if we start playing the hindsight game it inevitably raises other questions (given that the crime scene evidence proves that Brown was advancing at the end) in reference to other force options such as:

  •  -What if Brown bleeds out from his first two injuries or has some type of complication anyway.
  • -If Wilson used a taser (which he didn’t have), and given Brown’s size he had a heart attack from the trauma
  • -If Wilson used a blood choke and Brown had a seizure.
  • -If Wilson pistol whipped Brown or used his baton while charging and Brown died from a head strike whether intentional or accidental given the speed of the confrontation.
  • -If Wilson used mace and Brown fell striking his head.

The reason why cops are quick to avoid “Monday Morning Quarterbacking” is because I could go on and on with other possible responses to any scenario as well as a myriad of resulting outcomes by descending order of likelihood. It is interesting that the first people to criticize the use of force here are also some of the same people who have been trying to reduce the force options available to all officers in general. The term “less lethal” has become so crazily ill-defined, particularly during Ferguson, that we were actually having histrionic conversations about tear gas being a “chemical weapon.” You can’t in one breath criticize Darren Wilson for acting incorrectly while in the same breath eliminating his options and ability to act differently.

To be sure, there are officers who needlessly escalate situations even if they are in the minority. Some of these individuals have poor communications skills. Others just like to fight. They are a problem to be sure and difficult to deal with when considering whether there is a pattern, whether someone just had a bad day, or whether the other individual was going to escalate regardless of how the officer intervened. Still, even if I cuss at someone, if that person then decides to punch me in the face, they are still responsible for their own violent response. Behavior that needlessly escalates conflict should not be encouraged, but we can’t in good faith stop holding people responsible for their own actions in response, particularly when that response is violence.

WS

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3 thoughts on “Unlikely Panacea

  1. I thought the Post Dispatch article was interesting, so I sent the following to “letters@post-dispatch.com” (we’ll see if they print it).

    “In my opinion, we had “tactical retreat” by the police during the Ferguson demonstrations–or was that “tactical surrender”? Look at the results–several businesses were burned or destroyed, some will not be rebuilt/reopened, some business owners have lost their livelihood, as have people who worked for them. Where is justice for them?

    Governor Nixon should have told the protestors, before the Grand Jury decision was announced, that anyone looting, committing arson, or assaulting the police or anyone else would immediately taken into custody, even if the police had to go through a whole crowd of “peaceful” protestors to get to them–don’t get in our way, get out of our way, we will enforce the law.

    I think a good protection plan could have prevented most of the looting and arson, and had the police actually arrested some of those trying to loot the Dellwood Market, or loot or commit arson anywhere else, others who wanted to make trouble might have thought twice about continuing to do so, especially if the incidents were caught on camera and spread around the area, the nation, and the world.”

    Like

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