A letter to the American public: Law enforcement officers cannot read minds

In July 2021 intent became an explicit requirement for Washington state peace officers in their calculus for responding with deadly force. [1] A few other jurisdictions require or teach something similar.

Intent is part of the A.O.I. triad:

• Ability: Having the means to seriously injure someone; having superior strength, exceptional skill, greater numbers, or a weapon.
• Opportunity: Being within the means’ effective range; having weapon-specific proximity; being close enough to use the ability to seriously injure someone.
• Intent: Is the person displaying, using or threatening with their ability (i.e., weapon) in a manner that puts another person’s safety in jeopardy? Some use “jeopardy” here in place of intent; others use “motive.”

Some under-informed people have suggested this A.O.I. requirement means law enforcement officers must know a person’s intention is immediately dangerous before the officer can shoot. Other inexperienced people claim LEOs need confirmation of a threatening person’s intent. Or worse, certainty.

These notions are seriously flawed because no one can be certain of another person’s intentions. Teaching law enforcement officers (LEOs) that there is a requirement to know or be certain of another’s intent is impetuously dangerous to the innocent people LEOs should protect, as well as to the protectors themselves.

False signals

Ascertaining another person’s intent is derived from outward signals within contextual cues. That would be difficult enough, but it is extra complex due to the presence of false signals. Some false signals are inadvertent. Others are insidiously intentional.

A moving automobile’s “blinker” is, literally, a signal of the driver’s intent to turn or change lanes in the direction of the signal. When you observe a vehicle traveling ahead of you in a neighboring lane and that car’s blinker is on, indicating an intended lane change, it is reasonable for you to infer the driver intends to change lanes. Then, when you give them space to move into your lane and the other car does not change lanes into the available space, it is reasonable to change your conclusion and infer the other driver is oblivious that their blinker is on. However, it is equally likely that the other driver wants to make the maneuver and fully intends to, but they are an extra cautious neophyte and will not change lanes until there is much more space available. From where you sit in your own car, it is impossible for you to know the other driver’s actual, subjective intent.

Continuing the example, as a driver you might have committed an unintended error by signaling left when you meant to turn right. Or you intended to turn right, signaled that direction, and then changed your mind at the last second and continued straight. Dealing with criminals involves similar complexities when law enforcement officers attempt to decipher intent.

Every time an athlete “jukes” an opposing player, that is an example of faked intention to gain an advantage.

Every sudden and unexpected attack launches from a pad of hidden or counterfeit intentions. In “The Art of War,” Sun Tzu wrote that “the whole secret [to winning] lies in confusing the enemy, so that he cannot fathom our real intent.” [2] This principle illustrates the need to disguise or conceal one’s intentions when contemplating an attack to maintain a degree of surprise.

Surprise is one of the nine principles of successful tactical operations, from large missions to sudden gunfights between two individuals. Dangerous, fearless assailants seem to innately understand this concept. They execute deception and surprise effectively against law enforcement officers, or overseas in military settings, and against each other or innocent victims wherever they are. The element of surprise is accomplished by concealing true intentions.

The ruse

With someone who is contemplating a crime or tactical maneuver, their true intentions are often intentionally disguised. In special cases, LEOs sometimes use a ruse to achieve surprise when arresting a dangerous person. A ruse is based on the concept of feigning our intentions. We use a ruse to take an unsuspecting person into custody before they have an opportunity to realize what’s really happening, which minimizes their opportunity to resist, which protects everyone involved. A ruse is, therefore, a de-escalation tool when used by LEOs.

Human predators use ruses to mask their evil intentions. Monetary scammers and serial killers are very skilled at using ruses to lure their victims into feeling safe before being victimized.

Law enforcement officers cannot read minds

Law enforcement officers cannot know another person’s subjective intent. Therefore, it is foolish to assert that LEOs must know the other person’s intent before LEOs can take action to protect themselves or others from serious injury.

Law enforcement officers cannot read minds and we cannot see the future. The best we can do is observe and draw conclusions from those observations. Conclusions are inferences. Inferring a person’s intent is an exercise in educated guessing. Even when we guess right, people can and sometimes do suddenly change their minds.

“Taking what the defense gives you” and other adjustments made by athletes and teams during sports competition are examples of intentions changing mid-action.

It is the unpredictable nature of human behavior that makes dealing with people so complex.

Consider the subject’s intent in the following pictures. Assume it’s a robbery suspect being contacted by uniformed LEOs. Officers identified themselves as police and told the man he is under arrest. Is he actually surrendering in each of these photographs, or is he buying time to resist or flee?

Photos/Kyle Sumpter

The answer is, we don’t know. It’s impossible to know what he will do. We can guess, based on articulable observations, compared with our experience. But that’s as good as it gets.

Objectively reasonable standard

As with any guessing game we often have clues that help us infer another person’s intent. When those hints occur outside of ourselves and they are recordable or describable, we call them objective factors. When others agree with our inferences based on our description of observed and known facts, our conclusions are said to be reasonable.

Perfection is impossible, so perfect understanding is not the standard. Being objectively reasonable is the best we can hope for when guessing in the moment, even if hindsight later reveals some inferences were wrong.

A person’s underlying intentions are purely subjective, existing only in the person’s mind. I’ll say it again for emphasis: police officers cannot read minds. Police officers can only respond to what the person says and does, based on the context of the unique situation – the totality of its circumstances. The assailant’s actions and words, combined with the assailant’s previous behaviors that are known to the officer at the time, are among the objective factors.

Complying with the intent requirement

Reasonable suspicion is an amount of information based on objective factors. It is less information than probable cause. Probable cause is more information than reasonable suspicion and less than proof beyond a reasonable doubt. After many months – sometimes years – of detective work, the best information we can hope for in the criminal courtroom is proof beyond a reasonable doubt. Of all these, the best we can hope for in the field is probable cause to believe something.

Within the context of law enforcement field situations, especially in a review or discussion about knowing another person’s intentions, certainty does not exist. Having absolute certainty is one of the rare concepts about which we should say, “we never have that.” Even with eyewitness testimony, including when the LEO sees it with their own eyes, certainty is an impossible standard.

After careful deliberation, when all the facts are supposedly known with the clarity of hindsight, certainty is not required for a criminal conviction. We cannot expect an officer to have certainty in the field, especially when they are under the duress of a dangerous moment when the information of that moment is under-developed and the action is unfolding.

Probable cause, which is based on objective factors, is the viable standard. Justification for responding with deadly force is probable cause to believe there is an imminent threat of serious physical harm. [3]

When an involved officer is asked about the assailant’s intentions, one way of answering that is by articulating what the officer had probable cause to believe. For example, “Based on all those objective factors, I had probable cause to believe the assailant was about to [stab the innocent person].”

Another way of answering is by describing the officer’s inferences. For instance, “Based on the objective factors I just described, I inferred the assailant was about to [stab the innocent person].”

Hypothetical scenario and application

A man brandishes a handgun while robbing a bank. Investigators identify the man within hours. He is a convicted felon, known to the local police department. Bank surveillance photographs and a recent booking photograph are included in a BOLO bulletin to all uniformed police officers.

The next morning, uniformed patrol officers on foot locate the man lurking behind a business about a mile from the robbed bank. He is wearing the same clothes pictured in the robbery bulletin. A bulky sweatshirt covers the suspect’s waist. His hands are empty when officers contact him with their weapons drawn. Based on field experience LEOs know the waistband is where weapons are frequently carried.

When officers initiate contact the separation distance is approximately 25 feet. The officers verbally identify themselves as police officers and tell the suspect that he is under arrest for robbery. The suspect looks directly at the officers and says, “Oh, hell no!” as he reaches quickly under his sweatshirt to the front of his concealed waistband.

Because of their training, the officers know that once the assailant’s gun is in his hand it only takes a quarter-second to point and fire it at the officers. Whereas, it takes officers a third to a half-second to observe and mentally process (perceive) what is happening. It takes the officers another quarter second (at best) to enact a response. This lag time by the officers is called “the reactionary gap.” [4]

Within this context, the combination of the suspect’s history and his current words and actions, understood through the officers’ training and experience, gives officers probable cause to believe the suspect is initiating a deadly assault. The officers do not have – nor will they ever have – knowledge or certainty of the robber’s intent. To wait and see what happens next would be naïve, foolish, and increase the presently grave danger to the officers. Waiting increases the officers’ risk of being seriously injured or killed. Hesitation and delay at this moment would subject the officers’ lives purely to the vagaries of chance. Unfortunately, chance (luck) has no favorites.

Probable cause – not knowledge or certainty of the assailant’s intent – is the moment to respond. [5] The suspect’s history, words, and present actions give the officers probable cause to believe their lives are in jeopardy the moment the robber reaches under his sweatshirt toward his waistband. The suspect’s objective behavior creates an immediate necessity for officers to shoot the assailant in order to protect themselves from a reasonably perceived, present threat of serious injury.

Conclusion

When a law enforcement officer faces an immediate threat of deadly resistance, in that moment the assailant’s subjective intent is irrelevant. To enter an intellectual analysis in that moment could be tragic. The appropriate time for addressing the legal requirement of “intent” is in conceptual discussions later. At the time of resistance, the basis for action is what the officer has probable cause to believe at that moment, based on objective factors. It is also in those terms that we may confidently describe the assailant’s intent after the dust settles.

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