Wait for the Muzzle Flash?

Ken Crane, vice president of the Phoenix Law Enforcement Association

Ed. Note: This op-ed was written by Ken Crane, vice president of the Phoenix Law Enforcement Association. 

There is a famous quote attributed to a General from the American Revolution before the battle of Bunker Hill. Revolutionary War author David Weems quotes General Israel Putnam of Connecticut, as saying, “Don’t throw away a single shot, my brave fellows . . .don’t throw away a single shot, but take good aim; nor touch a trigger, till you can see the whites of their eyes.”

The obvious intent of the quote was to encourage soldiers to conserve ammunition and hold fire until the last minute, in order to inflict the maximum number of casualties, as rapidly as possible against a force of well-trained British regulars that most certainly outnumbered them.

In modern law enforcement, there is a similar but more disturbing trend starting to emerge that I simply refer to as the “wait for the muzzle flash” mindset. Since I came on the department in 1989, and for decades before, there have been numerous shooting incidents over the years, where police officers, not only in Phoenix but around the nation, have shot suspects who were unarmed or later found to be unarmed.

In the vast majority of these instances officers are not criminally prosecuted and are usually found to be in policy by their respective departments. Most of these situations involve suspects who either simulated a firearm or refused to follow commands, combined with making furtive moves or displaying other contextual cues that would lead a reasonable officer to believe they were going for a weapon.

On August 9, 2014, the now-infamous shooting in Ferguson, Missouri, between Officer Darren Wilson and Michael Brown occurred. The contact quickly escalated to a level necessitating the use of lethal force to control the situation and ultimately resulted in the death of Brown. Following the shooting, the nation was treated to an incredible display of biased media reporting, with new-and-improved versions the story were pumped out daily, with little to no fact checking beforehand. Reporters, in some cases, literally tried to gin up victims and witnesses, all in the name of getting a fresh angle on an already controversial and convoluted story.

Our nation watched as a mob mentality took hold in a small town, where protestors came in from outlying cities and from out of state, resulting in looting, businesses being burned, and injuries to citizens and police alike. The media became complicit in perpetuating the bogus “hands up, don’t shoot” mantra, all in the name of keeping the hype going. Perhaps most disappointing was seeing Attorney General Eric Holder on the ground in Ferguson making statements that tended to inflame rather than calm an already tense situation. Holder seemed to take on more of an activist role rather than the role of the nation’s top law enforcement official. I believe many cops nationwide felt betrayed by his actions.

Prior to and since Ferguson, I have had growing concerns with the way police managers are viewing and reacting to use-of-force incidents, including here in Phoenix. A couple of years ago, our former Chief made his infamous statement that the only three entities that determine whether an officer’s use of force is in policy are “the citizens, the media, and the Police Chief.”

I found this to be an unbelievable and absurd statement, especially coming from a person with well over 30 years of police experience. When I heard those words from the previous Chief, I knew that decisions made by him on anything high profile would be politically motivated rather than rule-driven.

Since Ferguson, my guess is that police managers in many jurisdictions across the nation have succumbed to a condition I will refer to as “Fergusonitis.” This is a condition that occurs when use-of-force incidents that would have previously been found in policy are now being found out of policy, in an attempt to head off potential political fallout. Police managers then scratch their heads wondering why officers won’t work the streets with the same level of energy and drive as in years past. Some officers simply aren’t going to go the extra mile or take what they perceive to be unnecessary risks, knowing that in the current climate, they may be the next item served up on the menu of political expediency.

I have seen “Fergusonitis” first-hand in at least four use-of-force incidents that readily come to mind here in Phoenix over the last couple of years; a couple that occurred pre-Ferguson and a couple post-Ferguson.

In one incident, an officer was found out of policy for firing on a suspect who spun around and went for his waistband. A glint of metal was seen, leading the officer to believe the suspect was going for a gun.

In another, a suspect, while being chased, crouched down and then came up in a shooting stance, leading the pursuing officer to believe his partner was about to be shot. The officer pretty much did what any reasonable officer would have done under the circumstances—he fired on the suspect. You guessed it… “out of policy,” because he didn’t actually see a gun.

When officers are found “out of policy” in situations such as these, it sends many clear messages:

• Apparently, the new “unwritten rule” is that officers are now expected to clearly see a weapon or wait for the muzzle flash before firing (a position, by the way, that is clearly not supported by Supreme Court case law, state law, or departmental policy).

• In the post-Ferguson era that we now find ourselves in, use-of-force evaluations are clearly being driven by politics, rather than the rule of law and departmental policy.

• Persons sitting on the Use-of-Force Boards often seem to be ill-informed with regard to relevant use-of-force case law, state law, and departmental policy, and render decisions on what looks or feels good, rather than what is factual.

The following are a few examples of some of the unbelievable questions PLEA reps have heard from investigators in post-use-of-force interviews and from personnel on use-of-force boards:

• “Did the gun the suspect was holding appear to be functional and loaded?” This is the type of question that evokes a jaw-drop response from anyone with any common sense. Let’s go back to our basic firearms training in the academy, where they bang the four basic firearms safety rules into our heads before they ever allow us to handle a firearm. Rule #1: All guns are always loaded. ‘Nuff said.

• From a peer officer on a Use-of-Force Board: “I would be more comfortable if the officer would have waited another second before deciding to fire.” Anyone who has taken the time or effort to do just a little digging and research, with regard to current use-of-force research can easily discover that an untrained person can draw from the waistband and get a shot off in a quarter of a second, or 25/100 of a second. With a little practice, some people can whittle this down to a tenth of a second, or 10/100 of a second. By comparison, the time it takes the average person to blink their eye is a third of a second, or 30/100 of a second. Translation: An untrained person can draw a gun concealed in the waistband and fire consistently faster than the blink of a human eye. Then people sitting on a UFB say; “I would have been more comfortable if the officer would have waited another second before deciding to fire.”

• “Knowing what you know now, is there anything you would have done differently?” This is one of the most ridiculous and unfair questions I have ever heard, yet investigators and panel members on DRB’s and Use-of-Force Boards alike are fond of asking it. It is grossly unfair because it requires the involved officer to judge his or her own actions based on the 20/20 vision of hindsight. The correct answer to that question is, yeah, I should have dropped a leave slip that day and not even come into work. The Supreme Court, in the 1989 case of Graham v. Connor, stated that an officer’s application of force should not be evaluated using the 20/20 vision of hindsight. If the Supreme Court realizes it’s an unfair evaluation, why do we allow our investigators and panelists who sit on DRBs or UFBs to persist with this type of questioning?

• “Couldn’t you have backed up or created distance?” This is one of those Monday-morning quarterback questions. The purpose of the interview should be to ask questions about the force options used and give an officer a chance to explain the events leading up to the application of force and let them explain why they felt a given force option was necessary. All too often, investigators allow themselves to get drawn down a path of engaging in argumentative questioning about the officers tactics rather than the specifics of the force application. As police officers, we are trained to stay in the fight, never quit, never give up, and hang in there until the situation is under control. When you go hands-on with someone and are trying to win the fight and gain control of the situation, backing up, and creating distance is usually not the answer, in most cases.

We all understand that police officers wield a great deal of power, and with that power comes a great deal of responsibility and accountability. When you have the right to deprive a citizen of their freedom—or, in extreme circumstances take a life—there should be great accountability. However, we also owe it to our officers to at least make sure that those who are tasked with interviewing, analyzing, and evaluating use of force have the best training we can give them.

Those who do the interviewing and sit on the Use of Force Boards and DRB’s—from assistant Chiefs on down, including civilian members of those boards—need to have a thorough understanding of the relevant use-of-force case law, state law, and departmental policy.

More importantly, they should be sent to some of the more cutting-edge AZPOST-approved training that is available, such as one of the many Force Science Institute seminars that provide a wealth of useful information on the human factors involved in use-of-force dynamics backed by scientific research or some of the Labor Relations Information Systems (LRIS) or Americans for Effective Law Enforcement (AELE) training seminars on use of force. PLEA makes the effort to send many of our reps to these types of seminars. We believe it is money well spent. It is sad to know that in many instances at Use-of-Force Boards or Disciplinary Review Boards, our reps are probably the best-trained people in the room.

While increased accountability is fine, officers should not have to live under the fear. That they need to wait for the muzzle flash. That the board that evaluates and judges them lacks the requisite knowledge to make a proper decision based on facts and evidence, rather than what feels right at the moment. That they will be served up on the platter of political expediency to satisfy an agenda.

If the new mantra is to “wait for the muzzle flash,” we better get on the stick and notify the Supreme Court that they might need to revisit Graham v. Connor. We also might want to get the state legislature to revise the justification for use-of-deadly-force statutes. We should also get hot on revising department policy and scheduling the “wait for the muzzle flash” training modules. The downside of use-of-force reviews and discipline decisions driven by local or national trends rather than rules and laws is officers will hesitate to engage, which could have devastating consequences. If this is the direction we are going, the city may as well plan for a lot more industrial injuries, police funerals, and life insurance payouts.