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Defeating the ‘Tactical Error Defense’

The ‘tactical error defense’ in the case of a California couple’s assault on a police officer sheds light on the importance of thoroughly documenting an officer’s use of force

I recently had an opportunity to observe part of a criminal trial in which a husband and wife were co-defendants in an assault-on-an-officer case. The wife had been charged with resisting arrest, and the husband had been charged both with assault on the officer, and resisting arrest. The defense strategy in the case consisted of attacking the officer’s tactics, and making the case that, but for the poor tactics he employed, the actions on the part of the husband and wife would never have occurred and thus no criminal case could be made.

Details of the Event
The event occurred at approximately 0100 hours in a busy downtown area populated with nightclubs. As the officer drove down the street, he was flagged down by an employee of one of the clubs. The employee pointed to a group of individuals with whom he had an altercation only moments before the officer’s arrival. The group consisted of the husband, the wife, and a handful of others. The individuals were walking away from the club employee and the officer. The employee informed the officer that one of the males threatened him. While the exact dialogue between the reporting party and the officer is unclear, the officer understood that the male made a death threat towards the employee (it is uncertain whether or not the male threatened to shoot or to stab the employee).

The officer walked in the direction of the subjects and called to them to stop. The group did not stop initially, and it was only after he called to them again that one member of the group looked in his direction and stopped. The officer closed the distance and called out again for them to stop. At this point, the group halted and they all turned towards the officer. The officer began to give directions to individual members of the group including the identified male, who is the husband/defendant in this case. The officer told the husband to turn and face a wall. At this point, the sister of the husband/defendant grabbed the officer’s arm from behind. At trial, she clarified that she was trying to get the officer’s attention in order to explain that her brother did nothing wrong.

In response to being grabbed, the officer turned and pushed the sister away. As he did so, he felt what he believed to be water or some other liquid thrown on him. It was his perception that the wife/defendant was the individual who assaulted him with the liquid. The officer drew his TASER and stunned the wife. The wife fell to the ground, and upon seeing this, the husband attacked the officer. The officer attempted to defend himself with a drive-stun to the husband, but this proved ineffective. The husband continued to aggress the officer, so the officer punched him one time. The punch failed to deter the husband, and as the husband was significantly larger than the officer, the officer pulled his firearm to defend himself all the while giving commands for him to back up. The officer perceived that the husband was attempting to grab his pistol, so in fear of his life he shot the husband one time.

The ‘Tactical Error Defense’
Defense council attempted to convince the jury that a series of escalating tactical errors on the part of the officer led to an excessive use of force against the wife which the husband lawfully could resist. Since the officer was unreasonable in his use of force, and the husband was within his right to defend his wife, then according to the defense attorney any force applied to the husband was also excessive; and the charges of resisting arrest and assault on the officer are without merit. In order to support his argument, the defense retained an expert witness — a retired commander from a very large Southern California sheriff’s department.

Through this witness, the defense asserted the officer made the following tactical errors:

• The officer should have called for backup before attempting to detain the suspects
• The officer should have waited for that backup to arrive before engaging the group
• The officer should have set up a perimeter and cordoned off the area
• The officer succumbed to the “fatal error” of “Tombstone Courage” as cautioned against in the California POST Learning Domain 21 workbook
• The officer succumbed to the “fatal error” of “Poor or no Planning” as cautioned against in the California POST Learning Domain 21 workbook
• The officer succumbed to the “fatal error” of “Inadequate Communication” as cautioned against in the California POST Learning Domain 21 workbook
• The officer should have controlled the subjects verbally and should have “decompressed” the situation
• The officer was not reasonable in introducing his firearm into the situation as the only time an officer can draw his pistol from his holster is when he is in “immediate defense of life”

This expert claimed to have instructed at his agency’s training academy, and stated that if a cadet had performed in scenario-training as this officer did in a real-life event, that cadet would have failed the exercise and would not have graduated the academy.

In this particular trial, the jury did not buy the defense. Although they acquitted the wife of the resisting arrest charge, they found the husband guilty on both counts.

The San Jose Mercury-News said of this result: “The split result baffled the Zunigas’ lawyer, who argued that if the jury acquitted Cindy, they also had to exonerate her husband because Marcos was lawfully resisting the use of ‘unreasonable force’ against his wife.”

While it can be argued that the defense expert is out of touch with the realities of police work, he makes some points that can be genuinely debated and critically reviewed. However, there is a bigger story here. That story is the direction that some fear the courts may take in the future.

Concern Over Recent Cases
I recently attended the Institute for the Prevention of In-Custody Deaths conference in Las Vegas. While there, I had the opportunity to speak with attorneys Michael Brave and Eric Daigle, both of whom defend cops in criminal and civil rights cases. I also spoke with several prominent law enforcement trainers. Both the attorneys and trainers expressed concern with some of the court decisions and the analysis rendered in recent cases.

For instance, in the Bryan v. McPherson1 case the court indicated the following:

• Officers must be aware of the active verses passive resistance analysis under the Graham 2 standards
• Officers should consider less intrusive alternatives
• Officers need to consider secondary injuries
• Officers must consider if a suspect is capable of complying with commands
• Officers need to consider if an event is “tense and rapidly evolving” or if it is more static in nature
• The availability of backup officers should be taken into account before engaging a suspect
• Warnings should be given before the application of force if feasible

While these matters mostly apply to less-lethal and TASER cases, it would not surprise me if the issues migrate to other force encounters as well. I agree that given ample time to diagnose an event requiring the use force, a perfect human being can consider every ramification and come up with the one-best answer. However, since we often work in a split-second decision making world, and since we are imperfect beings, we are unlikely to make the “perfect” decision each and every time. Luckily — at least as of now — courts do not require this level of judgment.

Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.3

The Erosion of Stare Decisis
While I am not an attorney, my fear is that the legal principle of stare decisis — by which judges are obliged to respect the precedents established by prior decisions — is eroding. One only need look to the Gant decision to see where the U.S. Supreme Court recently reversed itself and restricted searches of vehicles incident to an arrest. In this landmark case, dissenting Justice Alito pointed out that the previous rules of vehicle searches have “...been widely taught in police academies, and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years.”4

So where does this leave us? I submit that in the vast majority of cases, law enforcement officials use force that is reasonable and necessary to overcome the resistance of a suspect. However, we still need to do a better job documenting that use of force. Any use of force should at the minimum include the Threat posed by the suspect, the level of Resistance, whether it is an Active or a static event, the nature of the Crime, and any Evasion or Escape attempts on the part of the suspect. The acronym “TRACE” serves as a helpful reminder of the elements to be included in the “response to resistance” report. To comply with the need to consider secondary injuries to a suspect whenever a TASER is used, simply add the letter “D” for “Damage potential.”

By doing so, you will have “TRACED” your “force response” report in a comprehensive and defensible manner.

1Bryan v. McPherson, F.3d, 2009 WL 5064477 (9th Cir. 2009)
2Graham v. Connor, 490 U.S. 386 (1989)
3Scott v. Henrich, 39 F.3d 912
4Arizona v. Gant, 556 U. S. (2009)

Steve “Pappy” Papenfuhs is the CEO of Battalion Defense which distributes premier armor, armor carriers, ballistic helmets and shields, and other tactical kit. Pappy retired as a sergeant after serving 29 years with the San Jose, California Police Department. During his career he worked Patrol, Field Training (FTO), Street Crimes, SWAT, Auto Theft, Sexual Assaults, Narcotics, Family Violence, and supervised the department’s in-service Training Division. He holds a Force Analysis certification from the Force Science Research Center, and is a certified instructor with the California Commission on Peace Officers Standards and Training (POST) in several disciplines including: Firearms, Defensive Tactics, Baton, Force Options, and Emergency Vehicle Operations (EVOC). In addition to running Battalion Defense and teaching both academy recruits and in-service officers, Pappy provides expert witness consultation in police practices, use of force, and training issues.

Contact Steve Papenfuhs.