Critique vs. analysis: How to evaluate pre-seizure conduct

“State-created danger.” “Officer-created jeopardy.” “Bad tactics.” “Pre-seizure conduct.”

Usually, terms like this are used in events where the outcome is undesirable or unexpected. They are used to describe contributing factors in officer-involved critical incidents, especially where someone was injured or killed. Based upon the outcome, this can occur even though similar tactics may have been used multiple times in similar events, resulting in better outcomes.

If the outcome was good, the tactics were sound; if the outcome was bad, those very same tactics are examined and assessed as potentially improper. [1]

An outcome is not a reliable measure of the performance of an officer in a critical incident. Anyone who analyzes an event afterward certainly knows how it turned out; however, the officer involved had no way of knowing what the outcome would be at the time the incident occurred. And that the outcome is known makes it very difficult to analyze a critical incident objectively. Pre-seizure data should be analyzed from the outside moving into the known result (analysis), rather than from the results moving outward (critique). [2] This is where objectivity plays an important role.

Any analysis of an incident where pre-seizure conduct is potentially at issue should examine the following points: totality of the circumstances, tactics, perceptions, intention, expectation, predictability and hindsight.

Totality of the circumstances

Unlike the reviewer, the officer could not have made their decisions based on the outcome of the incident. Under the legal precedent established by the 1989 Supreme Court case Graham v. Connor, the analysis regarding the use of force by an officer must be based upon the “totality of the facts and circumstances” known by the officer at the time. In analyzing a use of force, the reviewer has all the data available, including knowing the incident outcome. However, during the incident, the officer only had what they subjectively perceived, and it is that perception that drove their decisions and resulting actions.

Accordingly, in the analysis, the force used by the officer must be objectively reasonable given the “totality of facts and circumstances” now known in hindsight. Those facts and circumstances are only discovered after a thorough and complete investigation. We must understand that officers’ decisions to use force are made based upon their subjective interpretations during the incident, with life-or-death consequences and under the compression of time in many cases. The totality of those facts and circumstances known in hindsight may be very different than those known to the officer at the time of the incident.

Tactics

Police tactics are principally aspirational. Their successful application is often based upon the behavior of the subject of the contact, especially where it could result in bodily harm or elicit life-and-death decisions on the part of the officer. Although we hear about officer-involved critical incidents often, especially in today’s law enforcement climate, actual incidents are often novel to those involved. And, despite public perception, officer-involved critical incidents are considered high-risk, low-frequency events.

When an officer is trained in a particular tactic, that tactic is designed to mitigate safety issues for the officer and the subject of their contact. Such tactics are taught early in the officer’s career and developed over time. Those tactics are then refined and adjusted through multiple applications as the officer gains experience. In most cases I have analyzed regarding pre-seizure conduct, the tactics used mimicked the tactics used on multiple other occasions where the outcome was unremarkable or desirable.

Perceptions

The innate human limitations associated with attention issues should always be a consideration in police critical incidents. Officers, like all human beings, can only process a thin slice of the voluminous information that is available to process during a critical incident.

What an officer perceives in a critical incident is also deeply affected by the context in which they experience the event. This means their perceptions during the incident may not be completely accurate in hindsight. This is because the totality of the facts and circumstances perceived by the officer and reasonably believed to be true are subjective at the time the incident occurs.

Those facts and circumstances only become objective after the fact through investigation and confirmation based on the outcome and supportive evidence. It is for this reason that an integral part of our analysis when pre-seizure conduct is at issue must include:

1. The tactics used;

2. Perceptions from the officer’s perspective;

3. Expectations the officer developed through experience.

For example, when officers are trained in suspected DUI vehicle stops, they are taught particular behaviors (tactics). Through practice and application, the officer’s expectation is that these tactics will result in a successful and safe outcome. Officers are taught how to park their vehicle, how to walk toward the subject vehicle, how to make contact with the subjects in the vehicle, etc. And because these tactics are applied effectively and successfully over time during numerous DUI stops, the officer becomes comfortable with them. The officer then develops an expectation that future DUI stops will be equally effective and successful.

However, when the atypical event occurs and someone in the vehicle engages in behavior perceived as a deadly threat to the officer, the entire nature of the DUI stop changes, and the officer must then respond to mitigate the potential threat. At that point the officer was in a position to deal with the likely event, using the typical tactics that led to successful outcomes like the officer has come to expect. However, now the scenario has changed unpredictably. The officer is now caught between the DUI tactics already in play and the perceived deadly threat suddenly posed.

The narrative we often hear after this sort of incident is that “the officer should have never been there.” This is the moment when the officer’s perspective, goals and intentions must be considered in the analysis. The term “should have” means we are viewing this in hindsight, critiquing an outcome that could not have been predicted by the officer during the incident.

Because we know the outcome, it’s easy to conclude that, if the officer had not placed themselves in jeopardy by using DUI tactics during a critical, life-threatening incident, the outcome would have been different. This is not the standard by which an officer’s actions should be analyzed.

Intention and expectation

An officer’s decision to employ specific tactics during a critical incident is driven by an expectation that those tactics will be successful. This is typically based on the successful use of those tactics in training and previous applications. This frequently occurs around the deadly use of force where a motor vehicle is involved, as in this example. The narrative normally sounds something like this: “The officer should never have been where he/she was in relationship to the vehicle. Thus the officer created the danger they were forced to respond to.”

In most cases where the investigation results in a statement like this, the officer’s intentions get overlooked. In this type of scenario, officers generally do not expect a subject to weaponize a vehicle. An officer comes to expect that a subject is going to reasonably respond to their presence and acquiesce to their directions. Most contacts involving vehicles typically end with safe, successful outcomes for both parties.

However, in a critical incident where the outcome is undesirable, it should not be automatically determined that the fault lies with the pre-seizure conduct or tactics utilized by the officer, especially when those tactics were utilized successfully in the past. The success of the tactics used by an officer is incumbent upon the subject’s behavior and actions during the event. It may have been the subject, not the officer, who elicited the undesirable outcome.

Predictability

Officers cannot predict the effectiveness of a tactic based on prior success! One of the most common mistakes made in the analysis of critical incidents is assuming officers can predict the outcomes of events. When an outcome is deemed undesirable in retrospect, we must consider the concept of hindsight attribution. The officer could not have predicted that the tactics they used would be effective or ineffective, only that they’ve been successful in the past. The officer is in a novel situation whereby the subject’s behavior drives the decision-making process. Accordingly, investigators and reviewers should not base their analysis of critical incidents on factors that were largely unpredictable to the officers involved.

Hindsight

It is only in hindsight that we know what the subject’s behavior was going to be. And it is only in hindsight that we know that the officer utilized specific tactics whereby an undesirable outcome occurred, but the officer did not and likely could not expect the subject’s behavior that made the event a novel occurrence. Outcome is not an accurate measure of performance or good tactics.

While adjustments to the officer’s tactics can certainly be addressed in hindsight through a critique, we cannot determine that the officer should have expected the behavior of the subject as we now know it to be in hindsight. To determine that the officer created the danger or jeopardy they faced during the incident, or that the tactics used were improper, is to require the officer to effectively predict the malevolent and unpredictable behavior of the subject, which is simply not possible.

Training

In a recent Police1 article, attorney Terrence P. Dwyer emphasized that critical incident review and analysis is a complex area of the law. He suggests law enforcement emphasize training and educating our investigators and officers regarding the issue of pre-seizure conduct in critical incidents. This education will give officers the opportunity to account for their decisions and actions. I could not agree more with Dwyer’s assessment.

Training and educating our leadership, investigators and officers should be focused on the officer’s understanding of and ability to articulate:

1. The context of the event;

2. The perceptions the officer experienced during the incident;

3. The goals, objectives and intention of the officer;

4. Fully explaining the tactics the officer was engaged in when the critical event occurred.