Lawful and Ethical Policing

Law enforcement officers are constantly making decisions. Decisions come in all shapes and sizes. Non-critical decisions span giving directions to a lost citizen or choosing a verbal warning over a written citation to a traffic violator. Then there are critical decisions: arresting an offender for a crime, using force, saving a life…or taking one.

My previous post Sanctity or Priority of Life, introduced the first tier of the non-linear decision-making process used in The Adaptive FTO program. The cycle consists of the Universal Questions for Ethical and Law Police Operations. The Priority of Life tier was discussed here.

The two remaining tiers Mission/Objective and Strategy/Tactics complete the cyclical decision making process from The Adaptive FTO program. The tiers ask what is the officer's goal or purpose… and how the officer implements a plan, whether a hasty plan or a detailed one?

Tier two determines the officer’s Mission or Objective. The questions examine the legal authority from which an officer operates. The answers are founded in Constitutional Law, specifically those in the 4th Amendment (Search and Seizure).

Mission/Objective:

• Does the officer(s) have a lawful foundation to take action?
• Can the police search (be, stand, open or look) where he/she is?
• Can the officer seize (stop, arrest, detain or restrain) the person?

Why is the officer at location?

• A call from a citizen?
• Self-initiated activity with a person who drew their interest (Terry Stop)?
• A consensual citizen/officer contact?

Is the officer…

• Investigating a reported crime?
• Making a traffic stop?
• Conducting a citizen contact develop from reasonable suspicion or probable cause?
• Involved in a community caretaking function for a person in need or in mental health crisis?

Regardless of how well-intent the officer is, these questions requires the officer to examine each contact through the lens of the 4th Amendment. Does the officer have a legal reasoning to determine if a person can be searched, detained for further investigation, arrested, or otherwise taken into custody (as is the case for helping those experiencing some types of mental health emergencies)?

Tier three looks at the Strategy or Tactics to be employed for a given situation. The Adaptive FTO does not advocate a one-to-one solution for problems. Too often law enforcement trains through checklists; we’ve tried to construct step-by-step processes for almost every possible situation: report writing, emergency vehicle operations, building search tactics, criminal arrests, computer use, evidence collection, traffic stops, first aid, and even (often terribly)…use of force.

The problem with checklists are they are very linear. For linear processes, like report writing or getting the squad washed, they work well. However, the majority of police operations are NON-linear; there is a beginning and end, but how the officer gets to the end is dependent upon many variables, often unforeseeable and unknown. Checklists and rigid rules eventually fail in non-linear environments. By providing a flexible framework for an adaptive strategy, the trainee is not locked into to a course of action, rather they adapt to the situation.

Strategy/Tactics continues the 4th Amendment examination from the standpoint of what is reasonable relating to speed, aggression, and force.

Strategy/Tactics

• What threshold of governmental intrusion will be acceptable to accomplish the lawful objective?
• Act or Stabilize?
• What is the urgency?

Here is an example that demonstrates a threshold of governmental intrusion: Many States have an absolute speed limit law. Any time a motorist is driving over the posted speed limit, it’s considered “speeding.” If that is the case, why are many, if not most, speeding citations issued for 10-15mph or more over the speed limit? Because citizens don’t support a governmental intrusion for 2, 3, or 4 MPH over the speed limit! Public safety is not enhanced and there is a negative impact to the criminal justice system. Cops “intruding” on the right of a motorist’s freedom for such a petty transgression is simply bad policing in the eyes of most citizens.

In deciding whether to ACT or STABILIZE, the officer selects a strategy to employ, but should not make the situation worse. Too often officers are taught to do something and hurry a situation to a conclusion. Sometimes this is necessary, other times not. But the strategy or tactics used are determined by the fluidity of the incident.

The final piece is determining the URGENCY to take an action. Urgency is related to time and cycles back to Priority of Life. Urgency as an operational philosophy is adaptive to the situation and flexible across a broad spectrum of tactics:

Tactics at one end of the spectrum could be: 

• Distance
• Negotiation
• Patience in dealing with a person in experience mental health crisis
• Delaying for additional officers

While at the other end of the spectrum:

• Dynamic Entry
• Decisive Force
• Threat Elimination

These are philosophic strategies, not checklists. Being strategies, they are organic to the situation. The ability to escalate or de-escalate is determined by the flow of an incident. Compare that to a checklist that commits an officer to a course of action and is limited in the ability to alter the "game plan" once put into motion.

For the Field Training Officer, the Mission/Objective and Strategy/Tactics tiers are where teachable moments occur in constitutional law. Search and Seizure, developing probable cause, exercising discretionary enforcement, and reasonableness live here. The FTO doesn't need a lesson plan and law book full of Appellate and Supreme Court decisions. The FTO does need an understanding of how to apply case law and a "WHY" beyond "if you don't, you'll get sued."  

The decision making model used in The Adaptive FTO teaches how to think, through a strategy for lawful and ethical police operations. It serves as a learning tool for the FTO in developing the trainee's adaptive decision making. It is highly adjustable to the situation. Being fluid, the decision maker is not trapped into a course of action but can work up or down the urgency spectrum, and reengage the cyclical thought process as the situation changes. The Adaptive FTO develops trainees into critical and adaptive thinkers…not mindless robots.

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