Saturday, August 16, 2014


It must be more than twenty years ago that I was returning home from work and saw three or four police cars parked in front of a house. Naturally, I couldn’t just drive by the place. I pulled in and spoke to the ranking officer on the scene, a huge, muscular sergeant who stood half a head taller than my 6’2”. He told me that there was a knife-wielding lady barricaded in the house. The lady, who had a history of mental illness, had used the knife to chase her family members out of the house. The family called the police, the police responded, and the standoff ensued.

When I arrived, the officers were preparing to storm the house.  The SWAT team had not been summoned for the very good reason that they didn’t have a SWAT team at that point in history. What they had was four officers wearing regulation uniforms and armed with service revolvers. The officers  had no ninja suits, no camouflage, no helmets, no Tasers, no flash-bangs, and no ballistic shields.

After a brief conference, the officers decided that the best thing to do would be to charge through the front door. I didn’t think that was a very good idea myself, but that’s what they decided to do. They kicked the door open and entered fast, hoping to grab her and overpower her before she stabbed anyone. She reacted by attacking them, holding the butcher knife over her head like an icepick and stabbing at them repeatedly. The way she stabbed with the knife reminded me of the needle on a sewing machine. The officers retreated from the house, she slammed the door shut, and the siege continued. I would later jokingly describe round one by saying that the officers went through the front door single file and came back out four abreast.

Round two began with a planning session. The officers decided that they needed to attack on two fronts rather than one, and that they needed some way to keep her out of stabbing range as they subdued her. One officer armed himself with a mop, and one armed himself with a bedspread. I watched through a window as the officers made a simultaneous advance through both the front and back doors. They moved slowly this time, repeatedly commanding the lady to put the knife down. Instead she attacked the officer who had come through the front door with the mop. Using the mop as though it were a pugil stick, the officer poked her in the face with the rag end of the mop. She decided to attack the officers who had come through the back door. Using the bedspread like a whip, the back-door officer slapped her in the face as the front-door officer advanced and poked her with the mop again. She dropped the knife, and they were able to grab her and subdue her. They dabbed at her bloody nose and immediately transported her to the local mental health facility by way of the emergency room. The lady was black.

The objective observer might characterize this action as a Keystone Kops or Mayberry RFD operation, but consider one undeniable fact—the lady survived the confrontation with only a bloody nose. Here is another undeniable fact—the officers willingly risked serious personal injury to avoid using deadly force against her. When she attacked with the knife, they would have been justified to shoot her, but I never saw any officer make any move to draw his sidearm. I tell this story to make a point which runs counter to conventional wisdom. Justifiable homicide is often avoidable homicide. The officers would have been justified in shooting her dead, but they worked hard to find a way to avoid killing her. It was admittedly unorthodox but it was definitely non-lethal.

I have handled a number of cases where officers would have been justified in using deadly force, but opted to risk injury by using non-deadly force. Almost all of those cases were handled years ago before the advent of SWAT teams, Tasers, camouflage gear, and military style body armor. Most of them occurred after nightsticks went out of general use.

One of the earliest cases involved a black gentleman who was an expert martial artist, having a black belt in karate and a short temper. He engaged in three epic fights with the police, each of which involved several officers attempting to subdue him. In all three cases, the officers were eventually able to get him under control at the expense of black eyes, bloody noses, and assorted lumps and bruises. Apparently this gentleman liked to fight, because he also engaged in numerous scuffles with people who were not law enforcement officers. Finally, he attacked the wrong civilian and was shot dead. The police were understandably reluctant to bring charges against the killer.

Another early case involved a black man about my age whom I defended multiple times on various charges. He didn’t know martial arts, but he knew how to fight, and he was as strong as a bull elephant. One evening he got a little too much alcohol in his system and engaged in a melee with a number of patrons in a bar. He was prevailing in his battle with the bar patrons when the police arrived. It took six officers to subdue him, and one of them suffered a broken arm. My client survived the encounter with bumps and bruises but no bullet wounds.

One last non-lethal story. We were taking the deposition of the arresting officer in a resisting arrest case, and he was describing how the altercation occurred. “I could tell by the way that he jumped out of his car that he was going to fight me, so I took off my gun belt and put it in my patrol car before approaching him.”  Naturally, we wanted to know why he did that. “I wasn’t going to shoot him, and I didn’t want him to have a chance to get my gun and shoot me in the scuffle.”

When I worked with the State Attorney’s Office, I investigated numerous police shootings. In my experience, the vast majority of people who got shot by the police were white. Usually, when the police shot someone, that person was presenting a threat of death or great bodily harm. Few of the people shot by the police were unarmed. Most of the shootings I investigated occurred after the proliferation of SWAT teams, and a significant percentage of the shootings were done either by SWAT teams or officers with SWAT training. Most were ruled justified, but I believe that many of them were avoidable.

I handled one case which resulted in rioting. An officer stopped a drug suspect after a high speed chase and had him put his hands against the roof of the patrol car in order to search him. The young man spun around and elbowed the officer in the head, knocking him to the ground. The officer had his service revolver in his hand and his finger on the trigger as he searched the young man. The gun had a hair trigger. When the officer hit the pavement, the gun went off sending the bullet on an upward trajectory which grazed the man’s back from bottom to top and hit him in the back of the head, killing him.
The officer did a number of things wrong. He had backup at the scene and could have safely holstered his weapon while he searched the man. He should not have modified his firearm to give it a hair trigger. He should have kept his finger off the trigger and outside the trigger guard. Doing any one of these three things would most likely have resulted in the young man spending the night in jail rather than being killed.

In addition to investigating police shootings, I handled countless resisting arrest with violence cases. In handling such cases, I noted a trend. Some officers regularly made resisting cases while others almost never did. The officers who almost never made resisting cases had two things in common—they were imposing physical specimens and they were polite to suspects. Smaller officers and officers of all sizes who would not or could not be polite to suspects seemed to make a disproportionate number of resisting cases. To paraphrase Al Capone, you can get farther with a kind word and a giant physique than you can with a giant physique alone.

As the years went by, it seemed to me that officers were becoming more and more prone to making resisting arrest cases. Here are a couple of cases from the end of my career which I refused to prosecute: In one case the report read “He backed up aggressively, so I Tasered him.” In another case, a young man was walking in the middle of the road when an officer pulled up to him and told him to get out of the road. The young man obeyed, but as he was leaving the road, he couldn’t resist “dropping the F bomb” on the officer. The officer ordered the young man to come back, but he continued walking to the side of the street. The officer Tasered him.  
It seemed to me that, at the end of my career officers were not as polite to suspects as they were at the beginning. There’s no metric by which I could measure such a thing, it was just an impression. I think the numbers would show that police shootings were more prevalent at the end of my career than at the beginning. Here’s my armchair hypothesis of why this is so (It may very well be that I am completely wrong): With more and more SWAT training, officers become more and more willing to use more and more force and less and less diplomacy to deal with situations. Dressing up in camouflage or like ninjas promotes a mindset in officers that is more prone to violence. As populations grow and officers become more distant from the people they serve, they act less like police officers and more like soldiers in an army of occupation, treating every citizen they encounter as a potential enemy. I also think that this is an equal-opportunity attitude—they’re just as likely to be impolite to and violent toward people from all walks of life.

I know next to nothing about the police shooting in Ferguson, Missouri, and I don’t like to speak when ignorant on a subject. I will, however, make a few observations. The officer may or may not have been justified. If his action was justified, it still may have been unnecessary or avoidable. If the officer is shown to have acted improperly, it may be that his actions were driven by a militarized attitude towards policing rather than by bigotry. Let's wait and see what the evidence shows before coming to conclusions.