Causing suspects to attack you

How some reform proposals are attempting to shift responsibility for violence from the offender to the officer


Originally published on the Force Science Institute websiteRepublished here with permission.

By Lewis “Von” Kliem, MCJ, JD, LLM

To participate in police reform discussions, it’s helpful to appreciate the multiple incentives driving the movement.

When officers have probable cause to believe a person has the intent, ability, means and opportunity to inflict harm, “jeopardy” is said to exist.
When officers have probable cause to believe a person has the intent, ability, means and opportunity to inflict harm, “jeopardy” is said to exist. (Getty Images)

Some believe that the police are members of a racist system and that violent criminals are merely responding to years of systemic oppression. Others believe that the police provoke violence or simply don’t do enough to avoid it. In either case, activists are proposing reforms to hold police “accountable.”

In this article, we’ll look at how some reform proposals are attempting to shift responsibility for violence from the offender to the officer, and how police professionals might inadvertently support this agenda if they don’t carefully distinguish “tactical uncertainty” from “officer-created jeopardy.”

To begin, let’s review what is meant by “jeopardy” and “tactical uncertainty.”

Threat assessments and jeopardy

When police conduct threat assessments, they often evaluate whether a person has the intent, ability, means and opportunity to inflict harm. [1] This review is not a legal requirement but has proven a useful framework to identify and influence potential threats.

Within this framework, officers are not expected to read minds or prove threats beyond a reasonable doubt. Instead, when officers have probable cause to believe a person has the intent, ability, means and opportunity to inflict harm, “jeopardy” is said to exist. [2] If the threatened harm is certain to occur unless someone intervenes, we call that “imminent jeopardy.” [3]

An officer’s real-time threat assessments are nothing more than “educated guesses,” or, if you prefer, educated judgments. They are reasonable beliefs informed by training, education and experience. Incomplete information and intentional deception make it difficult to achieve a high level of certainty in these judgments. As such, perfection can never be the standard, and reasonable people can always disagree.

Tactical uncertainty

Like threat assessments, the actions (“tactics”) that officers take to manage threats are also educated judgments intended to influence the conditions leading to jeopardy. For example, containment can prevent someone from accessing weapons (means). Distance and cover can deny someone the opportunity to use weapons. Handcuffs or other physical restraints can reduce a person’s ability to inflict harm, while effective communication and de-escalation may dissuade someone from forming or maintaining bad intent.

Although tactical decisions can certainly prevent jeopardy, they are always based on imperfect predictions. Too much distance and the suspect may run. Too close, and they may attack. Make physical contact too late, and the suspect might hurt people. Too soon, and you may have missed a chance to de-escalate.

Tactical uncertainty always surrounds threat assessments and responses. It is amplified by frequent information updates, competing government interests, and the fact that the suspect always gets a vote.

Those familiar with “street-level” police work universally understand the impact of tactical uncertainty. However, not all reform proposals appear to consider the often-split-second judgments and competing interests that officers face. Proposals that advocate “accountability” for “officer-created jeopardy” deserve careful scrutiny.

“Officer-created jeopardy”

In policing, the idea that officers can influence jeopardy is not particularly new. “After-action reviews” and training frequently address how tactical decisions can (or did) influence the intent, ability, means, or opportunity of the suspect.

Although frequently couched in terms of “officer-created jeopardy,” these reviews aren’t intended to blame officers for the decisions and actions of suspects. Instead, they identify strategies and tactics for officer-safety, that might simultaneously save suspects from the consequences of their own intended conduct.

Well-run tactical reviews encourage radical honesty as officers think critically about their decisions and performance. These shared experiences increase tactical options, improve decision-making and help officers avoid repeating ineffective tactics. Equally important, after-action reviews allow supervisors to identify and limit when otherwise lawful police conduct may not align with the current agency or community priorities. Avoiding armed confrontations with people who are only threatening themselves comes to mind.

Expanding “officer-created jeopardy”

If the evaluation of discretionary (and lawful) police conduct were limited to “no-fault, no blame” reviews, there would be little concern. However, some reform proposals would radically expand liability for “officer-created jeopardy” by second-guessing any tactical decision that might increase the risk of a deadly confrontation.

Courts have been reluctant to embrace the “officer-created jeopardy” theory, in part because the Supreme Court directs that use of force decisions should not be viewed with the benefit of hindsight. Currently, some courts limit use-of-force assessments to the moment the officer used force. Other courts take a broader view and will consider an officer’s “pre-seizure” tactical decisions as part of the “totality of the circumstances test.”

There is evidence that the Supreme Court would decide the narrow view of use-of-force assessments; however, police reform advocates are not waiting for the Court to settle this issue. Instead, they are lobbying state legislatures, attorney generals and agencies to pass laws and policies that impose “elevated” use of force requirements and expressly authorize consideration of an officer’s pre-force conduct.

Officer-created jeopardy 2.0

If the intent is to hold officers accountable for tactical decisions, it would seem a limiting principle should be identified. (Since merely showing up to confront an armed suspect increases the risk of a deadly confrontation.)

To address this concern, some proposals attempt to limit liability to only those decisions that were “reckless,” “unnecessary,” “unsound,” “needless,” “avoidable,” or “unjustified.”

Since officers have been operating under a “reasonableness” standard, it isn’t clear how these new qualifying terms will be defined or applied. More importantly, it isn’t clear who gets to decide that an otherwise legal and discretionary tactical decision was “unnecessary.” 

When these issues arise in judicial or quasi-judicial settings, officers have the advantage of police practices and use of force experts to educate the decision-makers. However, by inserting “officer-created jeopardy” provisions into state criminal law or agency policy, progressive prosecutors and civilian review boards with anti-police bias can conceivably bypass the courts and the experts.

When the evaluation of deadly force encounters is left to people unfamiliar with human performance, police practices, or critical incident decision-making, officers risk discipline, termination, and even indictment on a single unqualified opinion that a tactical decision was “needless” or “unnecessary.”

Even assuming that anti-police bias can be set aside, many of the “officer-created jeopardy” reforms endorse the “20/20” hindsight that the Supreme Court has expressly rejected. These reforms presume a level of predictability and certainty that rarely exists and will expose officers to judgments heavily influenced by outcome bias. [4]

Devolving standards

Like reform proposals generally, proposals that advocate expanding “officer-created jeopardy” are born of mixed motives.

It’s hard to complain when a defense attorney argues on behalf of their client that an officer’s tactical decisions, their “failure to de-escalate,” or even their “aggressive” uniforms provoked their clients to violence. This type of zealous advocacy is expected and can be tested in court.

More curious and concerning are the arguments that an officer’s tactics not only provoke criminals, they literally cause criminals to break the law. Not just attorneys, but academics are now arguing that, if an officer stands in front of a stationary car, they don’t just create the opportunity for an assault, they cause the driver to accelerate into the officer. If an officer fails to wait for back-up, they cause the suspect to fight. Leaving a position of cover or chasing an armed suspect causes the suspect to shoot. In each of these cases, it is argued that the officer should be liable for “creating the jeopardy.”

This type of liability shifting – from suspect to officer – is an expansion of “officer-created jeopardy” that imagines suspects have no control of their conduct, it ignores tactical uncertainty, and creates opportunities for second-guessing that are limited only by the reviewer’s creativity.

References

1. Some experts combine ability (physical ability) and means (weapons or other instruments) into “capability” and describe jeopardy as the opportunity, capability, and intent to cause harm. Others avoid the intent element out of concern that opposing attorneys will accuse them of “mind-reading.” These same experts might instead use the “AOJ” structure and focus on ability, opportunity, and jeopardy, in which they define jeopardy “as actions that would lead a reasonable person to conclude that the suspect intended to cause death or great bodily harm.” Under this definition, the imminent jeopardy analysis is being specifically applied to deadly force assessments and intent is addressed in their working definition of “jeopardy.”

2. “Jeopardy” simply means “danger” or “risk of some harm.” The intent, ability, means, and opportunity analysis is not limited to deadly threats and can be applied when analyzing threats against any government interest (e.g. property crime, simple battery, obstruction).

3. Courts might distinguish imminent threats from actual threats. Where a person is involved in an overt act that creates a present risk of harm, the absence of specific intent to commit that harm may not be sufficient to extinguish the jeopardy. Consider reckless drivers who force other drivers into a ditch. Also imagine that people experiencing delusions may not intend the dangerousness of their conduct and yet it can be no less dangerous and require immediate intervention.

4. Outcome bias is an error made in evaluating a decision when the outcome of that decision is already known.


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About the author

With nearly 30 years in the criminal justice profession, Lewis “Von” Kliem, MCJ, JD, LLM, worked as a civilian police officer, attorney, educator and author. Von is the executive editor of Force Science News and co-owner of Von Kliem Consulting, LLC, where he trains and consults on constitutional policing, use of force analysis, crisis communications and trauma-informed interviewing.  

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