Friday, December 19, 2014


There has been a great deal of controversy lately over a series of unfortunate incidents involving law enforcement officers and arrestees. The three most discussed cases involve the Michael Brown/Darren Wilson incident, the Eric Garner case, and the John Crawford III case. None of the officers involved in any of those cases has been charged as yet, and this has reinforced a perception of racism in law enforcement. Depending on their worldviews, people will look at these cases and come away with  diametrically opposed conclusions. Regardless of who is right and who is wrong, we have three dead men who could have gone on living had things played out just a little differently.

I don’t want to talk about the wide ranging implications of these events right now. I'll have more to say on that subject in future blogs, but right now I want to talk about the mechanics of living through potentially lethal confrontations between law enforcement officers and citizens. I am certainly no expert on police practices, but during my 32 year career as both prosecutor and public defender I have been involved in the investigation, prosecution, and defense of scores, if not hundreds, of violent confrontations between officers and civilians. So, based on that experience and little else, I am going to voice some opinions which are quite possibly wrong.

Let’s talk to officers. The first thing that you need to realize as an officer is that “criminals” are human beings, many of whom are not much different than you. As a young public defender, I was shocked to learn that the major difference between my clients and my law-abiding friends was that my clients on the whole weren’t quite as intelligent as my friends. Remembering this lesson served me well in my career. Disaster is in the offing if you forget it. I know this from personal experience. Also remember that when you arrest someone you have ruined that person’s day, and you can expect him to let you know in no uncertain terms how upset he is. Words can anger you, but they cannot hurt you. Don’t let preconceptions combine with hurt feelings to produce ill-advised actions.

Second, remember the phenomenon of postural echo. If you come on to someone in an overly aggressive or insulting manner, he is going to echo your behavior. I once knew an officer who seemed to always be in court charging someone with resisting arrest with violence. He had a sharp wit and a sharp tongue, and he used them both on arrestees. They quite often objected to his behavior and the fight was on. I prosecuted several of those cases and never got more than a misdemeanor conviction. The defendants were obviously guilty, but the officer was just as obviously guilty of provoking them, and the juries returned their verdicts accordingly. Remember the Proverb, “A soft answer turns away wrath.”

“But,” you say, “You can’t handle some people any other way.” As a jailhouse philosopher once told me, violence is the universal language, and some people don’t speak any other. I realize that there are those kinds of people out there in the world, and rough handling is the only way to manage them. But if you start out polite, you can always ratchet up your behavior. If you start out aggressively, you can’t very easily ratchet that behavior down, especially after postural echo kicks in and the arrestee has responded in kind. The Institute of Police Technology and Management offers courses in Verbal Judo which teach techniques for using words as a force option. I took a short course in Verbal Judo years ago, and I highly recommend it. If you can’t take the class, read one of George Thompson’s books on the subject.

When you put on that badge, you can have a tendency to think of yourself as the hero of an epic saga of good versus evil, and you want to act the part. You never compromise with evil and you never take a step back. This attitude can get you killed. Sometimes discretion is the better part of valor. A couple of examples:

Back in the days before tasers and pepper spray I was defending a rather young man charged with multiple counts of battery on a law enforcement officer. In this particular case He had gotten into a barfight with his brother and then took on a host of police officers who responded to the call, breaking one of the officer’s arms. I was taking one officer’s deposition in the case, and he described how he was the first officer on the scene. When he arrived, he stopped just inside the door and saw my client, whom he knew from previous encounters, in the process of besting his brother in a brutal fight. The officer took no action. He stood by and watched the fight awaiting the arrival of backup. Why, I wanted to know. Because he knew the defendant and knew him to be a dangerous man who could handle himself quite well in violent situations. The officer knew if he intervened alone, he would most likely get beaten to a pulp. He said that he would not have taken any action until other officers arrived if my client hadn’t started beating up the proprietress of the establishment. When the range of hostilities widened to include beating up on women, the officer went ahead and intervened. He was getting pummeled when other officers arrived to help him subdue the defendant.  

Another officer was sitting in his patrol car in the parking lot of a local bar when he saw my future client walk up to a man leaving the bar and shoot him dead for no apparent reason. My client then made a beeline for the officer’s car and told the officer “If you try to arrest me, I’ll kill you too.” He took no action and my client made good his escape—but not for long. The officer called for backup, got his bullet proof vest out of the trunk of his car, put it on, and went to the defendant’s house where he and several other officers made the arrest. You may be thinking, “What a wimp!” You would be wrong. If he had tried to drop his fish sandwich, get out of the car, and draw his service revolver, the preacher would have been extolling his courage at his funeral. Instead, he exercised some discretion and survived to eventually retire and collect his pension.

Finally, remember that “justifiable homicide” is not always unavoidable homicide or even necessary homicide. Don’t engage in activity which provokes or facilitates the creation of lethal confrontations.

Now let’s talk to potential arrestees. The first thing you need to remember is that officers are fellow human beings who are not much different from you. There are a few jerks in any profession, and law enforcement is no different. True jerks are few and far between, and most of them are equal-opportunity jerks who dish out discourteous behavior without regard for race, religion, sexual preference, or national origin.

There is a simple way to greatly reduce the probability of violent confrontation with an officer—obey the law. If it is obvious that you are doing nothing wrong, most officers will leave you alone. If this doesn’t work, and an officer confronts you, be polite. This may be hard to do, because the officer may very well be speaking to you in a tone of voice which makes your blood boil. If you respond in kind, the situation will escalate. I vividly remember a time from my youth when an officer stopped me and accused me of running over a dog. He couldn’t seem to get it through his head that somebody else had run over the dog. I had almost sold him on the proposition that I was innocent when frustration overcame me and I made some less-than-flattering remarks to him. He called for a cage car to carry me to jail. I immediately adopted a more conciliatory tone and was able to talk him out of arresting me by the time that the cage car arrived.

If he had arrested me, I would have had an excellent lawsuit against him, but I would still have spent the night in jail. If I had continued to display my ability to think up inventive insults, I might even have collected some knots on my head. Moral: If the officer is being a jerk, don’t respond in kind, nobody ever died from hurt feelings. Just content yourself with imagining all the money you are going to win in the lawsuit. That’s a far better prospect than escalating the situation to the point that your survivors win the money in the lawsuit.

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