Using legitimacy as a guide to police reform
Legitimate actions are those that are both legal and the right thing to do; here are three critical components within this concept to keep in mind
Police agencies across the country are struggling with calls for reform. Many of these reform efforts carry with them a presumption of incompetence or wrongdoing on the part of law enforcement, which in turn can lead to resentment and frustration. But perspective is key. Reform should not be perceived by police leaders as inherently bad, because reform can mean improvement. All police agencies should strive to be learning organizations and continuously improve the services they provide to the community. After all, would you trust a surgeon who keeps operating the same way for decades because “that is just the way it has always been”?
However, not all reform efforts are created equal. Effective reform measures require an understanding of where the problems really lie, which requires a thorough root cause analysis. Law enforcement leaders and trainers who are open-minded to change and embrace continuous quality improvement must be involved in root cause analysis. Analysis of “what’s wrong” conducted without law enforcement input can produce legislation and policy changes that do not reflect the dynamics of police work and ultimately wind up being unfeasible or inadequate for addressing the root problems and community needs. Good intentions can create bad results.
A root cause analysis will help to identify the source of any apparent failures and relate them back to the five pillars of organizational success: people, policy, supervision, training and discipline. This determination is the start of fixing the problem. For example, in a use of force incident, is the policy inherently problematic, or was it the tactics used by the officers leading up to the use of force? If so, then maybe both supervision and training need to be addressed.
Legitimacy as a Guide
Throughout my career I observed some officers make decisions based on a simplistic assessment of legality. If an act was legal for an officer to do, then they did it. If a person was observed violating the law, they were arrested for it. Yes, sometimes it really does come down to that level of simplicity. But the service police provide to the community is too vital for such a simplistic approach to be taken under all circumstances.
Instead, I use the concept of legitimacy as a basis for most of my training classes. My first introduction to this concept came back while I was a rookie officer and still on probation. One midnight shift, my field training officer and I arrived at a violent domestic after two other officers had arrived. As we walked in the house, I saw a clearly distraught and apparently frustrated woman suddenly lunge at a senior officer and hit him, hard. As a new officer, I was ready to pounce and place her under arrest. But the officer involved just held her and very calmly told her he was going to give her that one because of what she was going through (she walked in on her spouse with another woman). We ended up assisting her with leaving the house, then moved on.
That officer made a legitimate decision – it may have been legal to arrest the woman, but under the circumstances, would it have been the right thing to do?
Legitimate actions are those that are both legal and the right thing to do. Within this concept are three critical components:
- Solid legal foundation. Are you where you have a right to be, doing what you have a right to do? If the answer is no, you are starting at a severe deficit.
- Solid safety foundation. Can whatever action you are contemplating be done with a valid priority of life assessment for all involved – the officers and the citizens? Could the decision create more risk for all involved?
- Solid goals and objectives for the actions. The goals and objectives should be fully intertwined with the level of risk assumed by officers. The risk assumed while responding to an active-shooter incident is significantly different than the risk of using a SWAT team to do a dynamic raid for a small amount of drugs. The goals of the former support the risk while the goals of the latter do not.
Two cases that rose to the Supreme Court of the United States (SCOTUS) and were then remanded back to their appellate circuits for reconsideration serve as examples of the concept of legitimacy in action. In both cases, SCOTUS reversed the circuit courts’ findings against the officers but for different reasons. It is not my intent to provide a complete legal analysis of these complicated cases. Instead, I will focus on the decisions made by the officers and apply the concept of legitimacy.
White v. Pauly
In White v. Pauly,  officers were called to the roadside scene of a nighttime road rage incident. One participant, Daniel Pauly, had already left the scene prior to the officers’ arrival. The complainants described the verbal exchange they had with Pauly, but it was clear to officers that no charges would result from the encounter.
Despite this, the officers decided to go to Pauly’s residence to speak with him. The house was set back off the road and behind another house. To “maintain officer safety,” the officers decided to approach the house on foot and only intermittently use their flashlights so the occupants would not know they were there. The house was occupied by brothers Daniel and Samuel Pauly. Seeing someone in the dark approaching the house, they armed themselves. A verbal exchange between the officers and the brothers led to shots fired, which left Samuel dead. The officer who shot Samuel saw Samuel pointing a gun out the window at him and he believed he was about to be shot. The overall facts were in dispute but the recordings at the scene only appeared to capture the officers announcing themselves once as police. Daniel claimed they did not hear any such announcement.
Was it legal for the officers to go to the residence and interview Daniel about the prior incident even though no charges would be filed? Yes, but the necessity is debatable. Compounding the officers’ questionable decision to go to the house is the type of approach they decided upon. This was a decision based only on their perspective as police officers – they did it because they can and because they were on a call for service. They possibly believed a stealth approach could prevent an ambush. If so, what facts existed to lead them to believe the brothers would shoot at a police car driving up the driveway? If that was a legitimate and articulable concern, then why go at all when no crime had occurred? What was the goal that would result in the assumption of any risk?
This analysis is not about using hindsight to criticize the officers’ decisions. It is about understanding that taking into consideration the perspective of all involved is critical to making a legitimate tactical decision. Incorporating other people’s perspectives allows for a more informed assessment of the risk versus the goals of the action. A proper risk assessment would have taken into consideration how the approach could be perceived by the occupants. Daniel had just been involved in a road rage incident and now observes people sneaking up the driveway. It would not be unreasonable for him to believe whoever was approaching in that manner may have some malicious intent. In fact, I would guess most people reading this article would have retrieved their weapon under similar circumstances.
On remand to the 10th Circuit, the court reasoned:
Similarly, in this case, the alleged reckless actions of all three officers were so immediately connected to the Pauly brothers arming themselves that such conduct should be included in the reasonableness inquiry. Thus, if we view the evidence in the light most favorable to plaintiffs, the threat made by the brothers, which would normally justify an officer’s use of force, was precipitated by the officers’ own actions and that Officer White’s use of force was therefore unreasonable. 
County of Los Angeles v. Mendez
In County of Los Angeles v. Mendez,  deputies were looking for a parolee-at-large, Ronnie O’Dell. A confidential informant told deputies they saw someone resembling O’Dell riding a bike in front of Paula Hughes’ home. The Hughes’ home had a shack in the backyard where Angel Mendez and Jennifer Garcia lived. The deputies did not obtain a warrant to search the premises. After a briefing, the deputies responded to the premises and searched it without a warrant, exigent circumstances, or consent. Two deputies entered the shack with guns drawn and without announcing themselves. Angel had a BB gun on the futon the couple was sleeping on. He moved the BB gun to put it on the floor, pointing it in the general direction of the deputies. The deputies shot and seriously injured both Angel and Jennifer.
In this case, the legitimacy of the deputies’ decisions prior to the use of force is compromised at the first test, legality. The officers had no legal right to be on the property without a warrant, exigent circumstances, or consent. This is a clear Fourth Amendment violation. On remand, the 9th Circuit ruled the unlawful entry was the proximate cause of the injuries to Angel and Jennifer. The court further concluded their reckless conduct allowed a finding of negligence under state law. As to the risk created, I will let the 9th Circuit’s reasoning from the decision speak for itself:
Police officers rightly remind the public that they are required to make split-second decisions in very difficult situations. See Tennessee v. Garner, 471 U.S. 1, 19, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). These split-second decisions cannot in every case be made reliably so as to avoid harm to innocents. But these imperfect life-or-death decisions demonstrate that entry by an officer, on alert, with weapon drawn, can foreseeably result in shooting injuries where the officer mistakes an innocent implement for a weapon. Entry poses a foreseeable and severe risk only partly mitigated by knocking and announcing. Under circumstances like those presented here, the safe course for the public and the one prescribed by the Fourth Amendment is for officers to remain outside, unless or until they have a warrant or consent or exigent circumstances arise. (emphasis added)
The court is essentially saying, “Okay officers, you say these split-second decisions are tough and police officers can’t be expected to be perfect. Then we, the courts, are telling you not to willingly put yourself in such a situation if you have a choice.” All officers should read this section very carefully and commit it to memory. We will see this reasoning applied more and more when questionable – and illegal – tactics are used.
Seize the Initiative
Reform and improvement are synonymous and that is the attitude law enforcement should take. We have a responsibility to our officers and to the public that must be taken seriously. Seize the initiative and use cases like the ones cited here to ask yourself, “Could our officers have made similar decisions?” Do not wait for tragedy to come to you. Use case law and cases in the news to ask that question repeatedly. If the answer is ever yes, fix it. 
References and Notes
1. 137 S.Ct. 548 (2017), on remand 874 F.3d 1197 (10th Cir. 2017)
2. The court still granted the officers qualified immunity because there was no clearly established law to make the “unlawfulness of the officers’ actions apparent.”
4. 137 S.Ct. 1539 (2017) on remand 867 F.3d 1067 (9th Cir. 2018) SCOTUS had rejected the 9th Circuit’s proposed “provocation rule” and remanded the case back to consider the issue of proximate cause. The district court and the 9th Circuit both found the shooting to be reasonable under Graham but applied the now-rejected provocation rule, holding that the officer’s illegal entry provoked the need for force and therefore Graham would not be available to the deputies.
4. Lexipol is hosting a three-part webinar series on police reform. All webinars are free and available on-demand following the live events. Information and registration here.