A letter to the American public: Why police reform must address immunity and evidence-based training
Just as we use evidence-based medicine to determine treatments, we should use evidence-based research to determine police policies
By Bradley Feuer
Like medicine, law enforcement is a unique occupation in which, during the normal course of one’s responsibilities, death of another may be an undesirable, yet anticipated, operational outcome. This does not mean that death is any less painful to the survivors, or difficult for the ones responsible. Nor does it avoid the natural inclination to search for answers, blame and accountability.
While there are times that criminal charges may be appropriate, if all incidents of police-related death were treated as criminal, it would cause a chilling effect on the practice of policing and recruitment for the occupation and thus be adverse to society’s interests as a whole. Query then, whether in careers such as medicine and law enforcement, society should provide professionals with immunity from criminal prosecution, except in narrowly defined situations.
Acting in good faith
In medicine, despite a physician’s best intent and effort, death or bodily harm are known as possible complications of medical or surgical treatment. Accordingly, it is reasonable to limit criminal action against physicians to those situations in which there is actual or deliberate intent to cause harm beyond what may be anticipated from the normal course of treatment.
In the case of law enforcement, which is an inherently dangerous profession, lethal force with intent may be necessary to protect the officer or another person from an imminent threat of death or great bodily harm. Here, it is reasonable for criminal action to be even more narrowly defined and limited to situations in which there is criminal intent to cause harm.
Under both scenarios, professionals should be shielded from criminal prosecution if acting in good faith.
Of course, any number of scenarios may fall short of these standards but still represent inappropriate, careless, or accidental behavior. These may appropriately result in disciplinary action up to and including termination, or, depending upon the degree, even revocation of license/certification, as well as civil liability (subject to appropriate statutory or regulatory exceptions, including qualified immunity) without creating a chilling effect on the profession, adverse to societal interests.
But should the most highly qualified individuals avoid careers in law enforcement and medicine out of fear of criminal liability, or should those in the professions fail or hesitate to act when decisive action is necessary to avoid harm or preserve life, then society may ultimately lose the protection, safety and healthcare that is the basis of true freedom and security.
Better candidates lead to better performance
There is no question we can and should do better to reduce unintended consequences and ensure the highest level of job performance in these vital professions.
Better practice starts with better candidates. And better-qualified candidates are obtained through enhancing the societal image and financial reward.
More qualified candidates may also have broader educational backgrounds, such as backgrounds in social sciences or psychology, and are better suited to deal with the human component of the occupation. We know that there are strong emotional components to many medical conditions and diseases; likewise, we understand the importance of developing social connections in community policing.
The value of simulation training
Once the best candidates have been culled, the best training must be provided. Both medicine and law enforcement benefit from training that is based upon evidence-based research and includes simulation. While medicine has made great advancements in this area, law enforcement has room for advancement.
As a medical student in the 1980s, much of what I was taught on clinical rounds was based solely upon the experience of attending physicians. However, by the time I retired from academia last year, that practice had evolved to where advanced simulation centers are used to teach protocols based upon clinical trials that delineate benefit and risk. Unfortunately, today law enforcement is where the medical profession was 30 years ago, with training and policy that is based more upon experience and impression of leadership rather than evidence-based best practice reinforced through advanced simulation training.
Evidence-based research should guide policy
One of many areas ripe for study in law enforcement is that of the normal physiologic and psychologic responses during and after “the heat of the battle.” Only after we understand the body and mind’s response to these events can we formulate appropriate policies (including optimal hiring practices that emphasize desired personal character traits best suited for the responsibilities of the position).
In the same way that we use evidence-based medicine to determine which treatments to use in treating COVID-19, we should use evidence-based research to establish best practices for policies pertaining to police pursuits and hostile engagement. Just as independent, unbiased and academically rigorous studies (to include randomized controlled trials) are now used to formulate medical and surgical treatment protocols, the same type of research should be employed as the basis of police policy.
We should be deploying best practices based upon science, rather than individual impressions. There is a significant opportunity for university-based criminal justice programs to take the lead in this regard.
Reform should benefit both the public and the police
Political commentator George Will said, “All politics takes place on a slippery slope. The most important four words in politics are up to a point.” The goals of implementing and codifying new standards in policing or in medicine should be to benefit the public, protect those professionals practicing these occupations who are acting in good faith and avoid a chilling effect in the recruitment of highly qualified individuals. To be truly effective, any such reforms should be based upon data from independent evidence-based research.
Bradley Feuer is a physician and attorney-at-law, who is sworn as an auxiliary state trooper. He has spent his career in graduate medical education, earning the rank of clinical professor of family medicine and assistant clinical dean at two US medical schools.