Don't Charge Police for Mistakes

I have often wonder during my 24 years as a cop how or why a officer in the performance of his duties could end up charged with a crime and end up doing time in jail for a mistake in judgment  under pressure while doing his job? I have often thought why is it that judges and prosecuting attorney’s get immunity from their decisions made in the chambers of a calm court room, with plenty of time to decide and very little risk involved. While at the same time cops are being punished for decisions made implicitly on the street in the heat of battle, on the fly with little time, and where risks are high. In circumstances where  life and death could be the outcome. Quite frankly, cops, just doing their jobs. A job that often involves uncertain, complex and rapidly changing, unpredictable  circumstances involving uncertain, complex, rapidly changing, unpredictable and adaptable people who would do them or others harm. It has never made sense to me.

Reasonableness is the standard set forth by the courts in use of force cases which in my view alludes to an officer making rapid decisions under pressure and that mistakes in judgment will be made due to the rapidly changing conditions. The court in their decision to set the reasonableness standard  seems to understand that this decision making under pressure is not an easy task and that there is not a right or wrong solution, that the action taken must be reasonable. So why the problem?

My view is there is a huge gap between the street and the aftermath, between what cops do in the implicit world of conflict and violence and the explicit world of review boards and courtrooms, juries and judges. The way we make decisions in these two environments is different , much, much different.

On the street we are taught to make judgments based on patterns of behavior, body language and intuition. In the courtroom we are taught to look at just the facts and to make no judgment on anything other than the facts presented. Quite frankly this fact gathering method of making decisions is what we have been taught  (ALL OF US) since we began learning. Cops are also taught and learn in the same linear way and  they are not taught enough, if at all, about rapid decision-making under pressure, yet they still must do it . The Implicit verses the Explicit world of learning and decision making are both necessary yet only the explicit world is understood. Life and death lies in the implicit world. As cops, why do we not know more about it and makes sure those who sit in judgment of us do as well?

I received an email this week from retired senior prosecutor from the State of Connecticut, John Massameno who is trying to help cops in this area. He has drafted a proposed statute for the state of Connecticut  titled; an act concerning police officers mistakes in judgment.  He has also written an op-ed piece for the Hartford Courant in Connecticut.

I thought this valuable information you all should take notice of. Its also valuable to know that there is someone who  has an understanding of what cops do and how difficult making observations, orientations, decisions and actions can be under the pressure of real-time dynamic encounters where life and death are the potential outcomes. A hat tip and more John deserves in my view for possessing the strength of character and imitative in taking this on.

“The essence of winning and losing is in learning how to shape or influence events so that we not only magnify our spirit and strength but also influence potential adversaries as well as the uncommitted so that they are drawn toward our philosophy and are empathetic towards our success.” ~Col. John Boyd

Take a look at his article and proposal he is attempting to get enacted in Connecticut. Your feedback is most welcome you can sound off in the comments section or at fred@lesc.net

Stay Oriented!

Fred

Police officers need our help.

They must make split second, but accurate decisions about using deadly force to protect themselves or others from harm. Occasionally, an officer makes a mistake. Absent some aggravating factor, such as an improper motive, the law should not criminalize their good-faith mistakes in judgment. Otherwise, how can we expect them to take decisive action to protect lives when their own could be destroyed by doing so?

Two prominent Connecticut cases illustrate the terrible dilemma our officers confront when they believe their lives are threatened. In 1998, New Milford Police Officer Scott Smith pursued a violent fugitive (Franklyn Reid) on foot, brought him to the ground and, believing he was reaching for a weapon, shot and killed him. Reid did have a knife in his
nearby jacket. Nevertheless, Smith was charged with murder. MURDER, a Class A Felony, punishable by up to sixty years in prison! While Smith was not convicted of murder, he was convicted of manslaughter and sentenced to six years in prison. The conviction was reversed on appeal. Just prior to the new trial, wanting to avoid prison, Smith felt
compelled to accept a plea agreement that turned him into a convicted criminal. Yet, what if Smith had lost his appeal? The original conviction would have been upheld and Smith’s life would have been destroyed. Given the publicity surrounding his trial, with civil rights advocates claiming that he shot Reid because he was black, Smith probably would have met a terrible end in prison at the hands of the type of criminals he had vowed
to bring to justice.

Last week, a decorated Hartford police officer, Robert Lawlor, was acquitted of a similar charge. In 2005, Lawlor was on duty in an area of Hartford plagued by drugs and violence when he said he saw a young man, Jashon Bryant, with a gun. He testified before a grand jury that he approached the car that Bryant entered as a passenger and that the driver
suddenly disobeyed his command by starting the car and driving toward him. Lawlor testified that, when he saw Bryant reaching for a gun, he shot both of them. The driver, a felon and admitted drug dealer, recovered from his injuries, but Bryant died. While cocaine was found in the car, no gun was recovered. The investigation into the shooting and pre-trial proceedings consumed four-and-one-half years of Lawlor’s life and resulted in his
leaving the police force. Yes, he was acquitted, but only after being treated as one of society’s worst criminals, also accused of racial bias.

Anyone who thinks that the system worked in either of these cases has no clue what those officers and their families endured. It’s time to put an end to this appalling scenario. We should not compound one tragedy by creating another: criminalization of good-faith mistakes officers make. They need to make those fateful decisions of life and death without fear of professional destruction. Otherwise, how could we hope to find conscientious officers who will truly “serve and protect”?

The Smith case troubled me, so I drafted a law that should bring some rationality to the situation. It doesn’t immunize the police; they’re not above the law. It does recognize that, when police mistakenly kill or injure someone in the performance of their duties, they should not be treated as common criminals, unless, of course, they are. It gives an
officer a defense to a homicide or assault charge when, in the line of duty, he “[makes] a mistake in judgment concerning the imminent use of force against him or a third person.” It requires the trial judge to tell jurors that “in assessing the reasonableness of the physical force used by [the] officer and . . . [his] belief that physical force would be used against him or a third person, [they must] consider the [officer’s] unique status in the enforcement of the law, his background and training in the assessment of and response to the likelihood that physical force will be used against him, and the greater likelihood that physical force will be used against [an officer] than against a person not engaged in the
enforcement of the law.”

PROPOSAL OF JOHN M. MASSAMENO, SENIOR ASSISTANT STATE’S ATTORNEY (RETIRED) AN ACT CONCERNING POLICE OFFICERS’ MISTAKES IN JUDGMENT
Be it enacted in the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) In any prosecution for a homicide or assault, it shall be an affirmative defense that at the time of the alleged offense the accused was a peace officer, as defined by section 53a-3(9) of the General Statutes, who was acting in the performance of his official duties and made a mistake in judgment concerning the imminent use of force against him or a third person, provided that nothing in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, any offense that requires proof of criminal negligence.

2. (NEW) In any prosecution for a homicide or assault where the accused was at the time of the alleged offense a peace officer, as defined by section 53a-3(9) of the General Statutes, who was acting in the performance of his official duties, the jury or court deciding guilt, as the case may be, shall in assessing the reasonableness of the physical force used by such peace officer and the reasonableness of such peace officer’s belief that physical force would be used against him or a third person, consider the accused’s unique status in the enforcement of the law, his background and training in the assessment of and response to the likelihood that physical force will be used against him, and the greater likelihood that physical force will be used against a peace officer than against a person not engaged in the enforcement of the law.

3. (NEW) This public act shall take effect upon its passage.

STATEMENT OF PURPOSE

This public act is designed to protect police officers from the threat of felony prosecution any time they mistakenly use physical force, in the performance of their duties, that results in death or physical injury. No other professionals confront felony prosecution whenever they make a mistake in judgment in the course of doing their jobs. Our police officers
should not either, especially when their decision whether to use physical force often is made in a split-second and their own lives (as well as the lives of innocent by-standers) are at stake.

The act does not create an impenetrable shield to prosecution. In the unusual case where the officer does not act mistakenly but acts maliciously, the act provides no protection. Nor does the act protect against a prosecution for criminally negligent homicide, a misdemeanor.

In recent years, Connecticut has seen several trials of police officers for felony homicide charges when it was likely that the officers had simply made a mistake in judgment while performing their duties. In most cases, an officer clearly intends to shoot or injure a suspect, establishing the officer’s guilt of a serious crime, when what really
happened was that an officer’s perception that the suspect would inflict imminent serious injury was, in hindsight, unreasonable. Nevertheless, prosecutors and jurors are forced in these cases either to exonerate the officer or convict him of a serious felony for which he is certain to go to jail. One such officer was convicted of Manslaughter in the First
Degree and sentenced to six years in prison. No society should treat men and women on the front lines in the war against crime in this manner. Their human frailty should not lead to a judgment of criminality.

The law wouldn’t require the jury to believe the defense, so where there’s evidence of some improper motive, such as racial hatred, a conviction for murder would still be possible. Nor does the proposal prevent a conviction of the misdemeanor of criminally negligent homicide. It provides no defense to a civil suit against the officer or his
department in the event that either was negligent in some way, such as a
department failing to provide proper training. It’s time for Connecticut to protect police officers who make honest mistakes as they attempt to do their jobs. We don’t arrest as common criminals the doctors, lawyers, judges or engineers who make good-faith
mistakes that result in death or serious injury. We shouldn’t treat police officers differently under analogous circumstances. Their human frailty should not render them criminals.

John M. Massameno retired in June as a senior assistant state’s attorney in the office of the chief state’s attorney after serving for 28 years as a state trial and appellate prosecutor.