Why Can't We Get "Force" Right?

Why we can’t get “force” right?

Do you remember your academy training? The Use of Force training?

“And the Court held in Graham versus Conner that the plaintiffs claim…. [blah, blah, blah, look at my watch, yawn] and furthermore that such force shall be reasonable under the totality of the circumstances, as well as necessary….”

Yeah. Me too. Usually taught by a lawyer who has read every case ever written about Use of Force all the way back to Blackstone’s Commentaries in the 1700s, but… he’s never wrestled a crankster or been shot at by some gang-banger wanna-be. So it’s all theory. And it’s all taught wrong!

Now, do you remember your first force-options training? Pistol, maybe? Defensive Tactics, perhaps? Or baton? What do you recall about that training? Technique, right? Mechanics. Body mechanics and techniques demonstrated, explained, practiced and then applied. Perfect. Probably taught by a master of that tool or system and practiced on the streets for 20 years. Perfect.

But, here, as my old man used to say, is the 64 Million Dollar Question,: Do you remember your first force-encounter? Dark night, car stop, guy bails out, Holy Shit!!! What the… And then what? And at what point were you utilizing your Use of Force training? Were you rolling Graham vs Connor around in your head as you pulled the trigger? A force continuum model, perhaps? Of course not.

Not counting that horrid week at the academy, you’ve probably been through several training sessions in which the focus is on lawfully using force. The mechanics are taught by masters of the craft (baton, pistol, etc.), and the theory is taught by lawyers (who frankly don’t know the streets) or old salty sergeants (who frankly don’t know the law… although they usually think they do); and never the twain shall meet. Right? Mechanics is mechanics, and law is law. Right? Wrong!

It has been my experience (as student and instructor, as master and as apprentice, as lawyer and officer) that much of our professions’ “use of force problem” derives from how we teach the subject(s). And we are doing it wrong; we’re doing it all wrong!

The problem with our current method of teaching Use of Force is twofold: First, neither Graham v Connor nor any of the progeny cases on Use of Force were written to teach police officers how/when/why to use force; that’s just not what legal opinions are designed to do. Yet, we continue to teach officers “how to” by referencing legal opinions, and, pointing at conceptual models (Force Continuum Models) designed to draft policies and seek to instruct would-be force-users to model their street behavior after these conceptual models. Second, we fail to understand that learning legal doctrine is learned by conscious mind cognitive thought, while force-application is always executed in intensive moments when either we are failing to react quickly enough (i.e. we are paralyzed with uncertainty in our “decision” and/or we are overwhelmed by the number of threats and choices confronting us; think about this--- for most officers facing only one single physical threat, they perceive that they are also facing other threats… the media, their sergeant, an IA investigation, etc., which overwhelms the “decision-making” process) because we are mentally wrestling with legal doctrine, or we are reacting quickly enough to defend ourselves precisely because our conscious mind functions (legal analysis) have been replaced by the subconscious activity that’s allowing us to survive and prevail.

Until we get these two points corrected in the way we train, we are going to continue to face the same use of force problems that we always have.

A.   Legal Opinions & Models as a Teaching Tool

B.   Conscious Brain Activity versus Subconscious

We all agree that taking another person’s life (even a “badguy’s” life) is one of those important decisions that merits due consideration and forethought; yes? None of us would get married without writing down pros and cons, seeking the counsel of a wise friend, perhaps praying or meditating over the decision; right? And, why? Because it’s darned important. So, too, the decision to take out a mortgage or change careers. Again, we seek out wise counsel, write down pros and cons to balance our choices, et cetera. And so, we should weigh the decision of taking someone’s life with equal weight; shouldn’t we? Of course. But, what I have just described is cognitive reasoning, the kind of brain activity we use to solve algebra problems or work-out a Rubik’s Cube.

Based on this, I believe that we can all agree that the digesting of a complex theory (working a Rubik’s Cube, doing algebra or understanding Graham vs Connor) is a conscious-mind mental process; yes?

Can we not also agree that in the brief, explosive seconds of a gunfight (or any other fight for one’s life), one’s brain activity is, according to brain scans, literally “on fire”, but… it is all subconscious activity; not the same part of the brain that accesses Rubik’s Cubes, does algebra problems, or… analyzes legal doctrine? Of course.

So, why do we expect officers to apply legal training using conscious-mind functions at a time when that part of the brain is giving-over to another part of the brain? Silly, isn’t it? Yet that is how we are training officers to apply force; by conscious thought. And then we are surprised when the obvious happens (the officer hesitates on the trigger or baton while analyzing legal doctrine and so gets shot, hurt, etc; or… the officer swings the baton or yanks hard on the trigger in stress-reaction-mode)?

And then what? Internal Affairs steps in, reports have to be written, explanations made. In other words, now we have to revert back to both training and event using conscious mind analysis and recreate the events in a way that seeks to justify the actions/reactions initiated by our subconscious mind. In other words, there does come a time when we do need to work that algebra problem in our heads, and regurgitate legal doctrine and explain ourselves using a conceptual model, like a force continuum.

But not when we are being shot at.

1.    Law is cognitive.

I have been shot at, and I have shot at people shooting at me.

I have also sat for hours in the classroom of a law school, listening to my law professor seek to teach us, by Socratic method, the complexity of law by dissecting written legal opinions contained in old cases.

These varied experiences have enabled me to understand that the mental process for each function-type is radically different; thus, so should be the teaching/training method.

As Professor Austin notes: “Law is a cognitive profession ….. this article explains brain structure; describes the parts of the brain used in cognition;…. “ Austin, Debra S., Killing Them Softly: Neuroscience Reveals How Brain Cells Die from Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance (March 8, 2014). 59 LOY. L. REV. 791 (2013); U Denver Legal Studies Research Paper No. 13-12. Available at SSRN: https://ssrn.com/abstract=2227155 or https://dx.doi.org/10.2139/ssrn.2227155. In other words, what professor Austin is saying is that, while this may seem an obvious point to some of us, the ability to understand and apply legal doctrine is a cognitive mental process. It is a conscious mind function. And we should already understand that!

In fact, while our entire criminal justice system is based on the (medically indefensible theory) notion that “he shoulda known better” equates to criminal liability, much of our criminal law recognizes the role of brain activity in situations involving force (for example, the temporary insanity or heat-of-passion and adequate-provocation defenses). In other words, our criminal justice system (which should be thought to include police training facilities) already understands the disconnect between street violence and knowledge of law.

“Scholarship and case law have intersected with brain death, brain injury, criminal responsibility, criminal treatment, decision-making, bias, pain, evidence law, addiction, mental health law, disability law, insurance law, genetics, evolution, memory, emotions, and much more. Scholarship has been theoretical, empirical, international, and intensely interdisciplinary. New ideas have sprung forth from a variety of fields, including law and neuroeconomics, law and behavioral biology, and law and behavioral genetics. At the same time, the parallel field of neuroethics has developed a research profile that included legal issues. Cases have been heard in local counties all the way up to the Supreme Court.” 

Shen, FX, Arizona State Law Journal; Law and Neuroscience 2.0 (2017) (citations omitted).

Doctor Shen explains that, in 2001 “ law professor Oliver Goodenough published the Jurimetrics article, Mapping Cortical Areas Associated with Legal Reasoning and Moral Intuition [where he argued that]  “[a]dvances in neuroscience and other branches of behavioral biology provide new tools and the opportunity to revisit classic questions at the foundation of legal thinking.” Goodenough went on to propose a series of experiments that would explore the neural architecture of moral and legal reasoning. Id at 1147, citing Oliver R. Goodenough, Mapping Cortical Areas Associated with Legal Reasoning and Moral Intuition, 41 JURIMETRICS 429, 430–31 (2001).

Subsequently, the 2004 special issue on Law and the Brain in the Philosophical Transactions of the Royal Society B, co-edited by Goodenough and neurobiologist Semir Zeki, became the “first serious attempt by a major scientific journal to address questions of law as reflecting brain activity and, conversely, to emphasize that it is the organization and functioning of the brain that determines how we enact and obey laws.” Shen supra at 1047

In other words, we now know that the legal cognition and moral reasoning aspect of brain activity is radically different from that brain activity associated with violent behavior in its reactive form. We acquit criminals because (their brain isn’t working in a way that we call cognitively; i.e. they are non compos mentis) they aren’t thinking about the law. Why would we expect officers to be thinking about the law (compos mentis) during those explosive moments when they are under attack? It really doesn’t seem fair, does it?

Allow me to share a war story from my own experience that serves to illustrate the point. In November of 2005, I had received hundreds of hours of firearms training between Army and police training, I had already earned a Juris Doctor after passing through 4 years of undergraduate studies in sociology and pre-law, followed by 3 years of graduate study in law school, I had spent several years in criminal courts working complex Rubik’s cubes of case law, statutes, and constitutional provisions involving use of force applications, had been through a police academy over the course of several months, had worked the streets behind a badge for a few years and had arrived in Iraq to serve on the US State Department’s Civilian Police Project Iraq. On November 14th, at about 10am, I was leading my team of PSD personnel to the Ministry of Justice in Northern Baghdad when we were enveloped in a complex ambush, involving a VBIED (Vehicle-borne Improvised Explosive Device), a remotely-detonated roadside EFP (explosively formed projectile, an armor-piercing copper warhead, backed with a propane accelerant), and a hail-storm of machinegun and small arms fire from rooftops. Our rear gun-truck hit with the IED and engulfed in flame, small arms fire was pouring down on us from rooftops as our convoy halted to cross-load casualties to MEDEVAC.

To say that there was an overabundance of stimulate would be an understatement. It was intense.

As I leapt from the safety of my armored vehicle, I moved quickly on foot into what we call the “kill zone”. As I walked/ran toward my friends, trapped inside a burning, disabled vehicle, I realized that I was taking fire from a belt-fed 7.62 PKM machinegun on a rooftop, and I recall seeing tracer rounds streaking by me. I recall pausing, thinking to myself “tracer rounds, 7-to-1-ratio” (note: the correct ratio of ball-to-tracer rounds in a belt-fed machinegun is important to machine-gunners, helps them identify target without barrel-melt, and differs from gun to gun, and theory-to-theory; sometimes 4:1, sometimes 7:1, etc.). As I mentally processed this abstract (and, given my situation at the moment, entirely irrelevant, even ridiculous) question, standing in a Kill Zone while under fire, I raised the muzzle of my M-4 and fired several single-shot semi-automatic rounds at the insurgent machine-gunner. That action caused the enemy gunner to drop, and his machinegun stopped firing (presumably dead). I then continued to move toward the burning vehicle and my teammates as we collectively fought for our lives, in an ambush that I perceived as lasting about 20 minutes (radio records showed that our QRF arrived in 6 minutes; much less than the time I perceived).

I relate this story to illustrate that a highly trained lawyer and veteran soldier and police officer, when fighting for his life in a rapidly evolving gunfight, never once thought about use of force laws (yes, we were required to fight under Rules of Engagement, much like Use of Force Laws). Nor did I think, even for a moment, about the mechanics of my shot; I simply pointed and fired. And I certainly didn’t wrestle with the life-changing moral issue of taking a human life. None of those thoughts entered my brain. It’s not that my brain wasn’t working; it was! In fact, my brain was processing information at the intricate detail level. In fact, my brain was processing information so fast, that the world around me seemed to slow down (6 minutes seemed like 20). But my brain definitely wasn’t processing legal doctrines or policy models.

In the years since that day, I have become an Instructor of Force (firearms, LE DT, baton, OC, etc.), and have had occasion to think about the process we use to teach officers about the parameters of lawful force application, and the gap between that learning process and the reality of a force-application. I now realize that the way we teach Use of Force Law is entirely inappropriate if we ever expect officers to act correctly in the 3 seconds that is the average officer-involved gunfight.

My experience is not atypical. In fact, experts have weighed-in on the subject.

Ted Weiman is such an expert. Also an old friend, a sparring partner of many years, a retired federal LE agent, a certified black belt and a DT instructor, Ted is, more importantly, one of the leading experts on the mind-to-fight connection. In his landmark book, Warrior Speed, he notes:

The level of stress often met in survival situations [is what has] been termed the fight or flight response. When someone suddenly encounters a life threatening assailant, the body prepares… to fight or flee, by making… instantaneous changes. These include… secretions of the hormones adrenaline and noradrenaline [which] cause[s] increase in heart rate, blood flow to the major muscles, [etc.]. The adrenaline may help [the fighting situation] by boosting aggression and decreasing sensation of pain; however, it has the adverse effects of reducing the cognitive functioning of the brain.

Weiman, Ted, Warrior Speed, (Turtle Press 2000) at 93 (emphasis added). Wow! Did we read that right? Yup; an adrenaline dump reduces the brain’s ability to function cognitively.

Yet, we expect our officers to react to a sudden life-or-death situation and apply legal doctrine that has been assimilated cognitively into their conscious mind… even though experts all agree that the conscious mind isn’t working? That’s crazy!

The common result? There are two common ones: Either we act without thinking at all (no conscious or subconscious function), which is bad in a gunfight that is likely to end up in court; or, we become paralyzed in the face of over-stimulation (also really bad in a gunfight).

a.    Paralysis.  

Paralysis comes in many forms. The obvious form of paralysis is, as the name implies, the freeze response. In the same Iraq ambush described above, one of our teammates stood, staring at the unfolding drama and horror, literally, deer-in-headlights, like a statue. That night, those of us who survived asked him what happened. His response is very telling. He said:

           “It just happened so fast, man. It was over and done in the blink of an eye.” 

At the time, I couldn’t wrap my head around that answer. Fast? Blink of an eye? For me, the ambush lasted 20 minutes. For this guy, it was over in the blink of an eye? Something was not right. The dispatch records showed that from the time our distress signal went out until the arrival of QRF, only 6 minutes elapsed. So I was wrong; or, I should say my perception was wrong. It wasn’t a 20 minute ambush. But so was our frozen teammate’s perception wrong, as well; because 6 minutes is not the blink of an eye. I knew that something was happening in one brain, but something different in another.

Paralysis of the mind occurs when the officer hits sensory overload. He or she becomes overwhelmed by all of the stimuli… and all of the choices facing him or her.

b.    Processing Choices

Hick’s Law stands for the proposition that the more options that are available in a response, the greater the range of selections, therefore the longer and slower the mental process of selecting from among those choices. In 1952, Hick demonstrated that by increasing the number of options from one to two increased reaction time from 190 milliseconds to 300 (a 58% increase in response time). As Weiman says: “An increase in options directly correlates to an increase in reaction time.” Id at 96. And these are simple choices; not complex legal choices or moral choices.

In 1993, Joe Ferrera measured the reaction time of a block to a punch at 183 milliseconds. He then increased the number of options available from one choice up to four choices (in other words, 4 blocking techniques could be used against the punch, instead of just the one previously offered) and the response time increased to 481 milliseconds. Id. That is staggering.

And please note that these elongations of response-time are based on experiments using simple skills, like blocks. What happens when the fighter must select among four complex decisions (like legal choices)?

The elongation of response is aggravated radically when the response requires a complex analysis beyond which of four block-options. As Weiman concludes, “the more complex the response, the more time required for the response.” Id.

How does this translate into our concepts of training Use of Force Law?

We train on the words of the US Supreme Court in several force cases, from Graham v Connor to Tennessee v Gardner. The court’s goal in articulating the standard of “reasonable and necessary under the totality of circumstances” was obviously not to provide clear guidelines for officers on the streets! If that was their goal, they failed miserably. Why would they choose vague words like “reasonable” and “the officer’s reasonable belief”, or “necessary”, if their goal was to develop clear force guidelines?

           When a court (any court, but especially a Supreme Court) articulates a written opinion, the court is not writing to an audience of police officers; rather the court is writing to an audience of lower courts. In the case of Graham v Connor, the Court intentionally used broad, vague terms to describe the standard of acceptable use of force, emphasizing that the lower courts should have broad discretion in their decisions about force, while articulating the idea that the standard (Graham was a case decided under an analysis of the Fourth Amendment’s proscription against “unreasonable seizures of persons”) of the IV Amendment was “reasonableness”.

           If police departments, city attorneys, etc. had understood that the Court’s standard was not designed to train officers, but to guide lower courts, and if they understood that officers are not going to be able to translate a vague legal standard into action during an adrenaline explosion, then perhaps they would have offered some training alternatives.

I would like to propose a different way of training Use of Force.

 This proposed training method takes into account the way courts think and the way officers react to stress. This proposal is also based upon the premise that very few officers using force are doing so intentionally, because they are sociopaths who like to hurt people.

The structure I will suggest is as follows:

Level One, Basic Ethics, to include the value of empathy.

Level Two, a firm understanding of what “force” is, and is not.

Level Three, a clear understanding of the circumstances in which force can be used at any level or degree (in other words, state law “justifications” for using force).

Level Four, the amount of force that can be used, ties to various circumstances (which includes duration, extent or depth of penetration, and also tool selection).

Level Five, an understanding of how these justifying circumstances change rapidly in a violent encounter, modifying both justification and amount of force.

Level Six, the articulation of facts in a way designed to justify the use of force, given the legal standards for exercising force (in other words, how to verbally or in writing justify the force actions taken).

Knights School is one of a growing number of Force-Training Institutes that understands how to train students in the most important decision-making process of their career… or their life.

If you would like to learn more, feel free to contact me at www.knightsschool.com, and hit the CONTACT US tab.

Be safe out there!