A duty to act…or not?

When I used to teach law at the police academy, one of the subjects that always stirred some lively debate was that of criminal liability and, in particular, how that relates to any duty we as citizens and the class as future police officers, owe to others.

As a general rule, we don’t owe other people any duty to act on their behalf, even in an emergency, and this includes police officers.

In other words, doing nothing isn’t against the law unless there’s a statute or relationship in law that requires one to act on behalf of another.

An example of a statute making the failure to do something illegal would be something like one that makes failing to pay (failing to act) your taxes or licensing your car illegal.

A relationship in law that would punish a failure to act would include a parent/child relationship. Failing to feed or shelter your child (failing to act) can land you in jail, because there is a duty in law on a parent to provide such care to their own child. If I notice that my neighbor’s kids are dying because they’re not being fed, I have absolutely no responsibility to do anything on their behalf. I’m a terrible human being if I don’t help, but not a law breaker.

I would sometimes raise a hypothetical that included an officer in uniform walking into a convenience store to get a drink and noticing a man slapping a woman around as she pleads for help. The officer walks past the couple, even saying excuse me to the man to grab a cup while he’s continuing his assault on the woman, gets himself a fountain drink and leaves without doing anything to intervene on behalf of this poor woman.

If that woman were to sue the officer, she would simply have no case.

The officer, like any other person in that scenario, doesn’t owe that woman a lick of aid.

The law is often not fair like that, and there are certainly exceptions to this general rule. This is absolutely a dereliction of duty that should get the officer punished and hopefully, fired in many departments, but to say the officer is criminally or civilly liable would be a mistruth.

Let’s say that the officer did his job in the hypothetical and arrested the man. Had he put the man in handcuffs and then let the woman take a few punches at the suspect before he put him in the police car, NOW he has made himself liable for not protecting a person (failing to act).

It is VERY WELL SETTLED LAW that a person in police custody is owed a duty of care by the officer controlling the arrestee.

Period.

This is an exception to the general rule that we don’t owe others a duty of care that I tried to drill into the heads of recruits in training.

Once that person is in your handcuffs, he or she becomes your “child.”

If you fail to protect him or her from other people, you can be sued or criminally charged.

Certainly, if you intentionally hurt an arrested person in your control, you can be sued or criminally charged.

This is not up for debate.

This is not how we are to treat people who are under arrest and already in handcuffs for an extended amount of time:

 

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I’m sorry, but it’s not.

An unarmed man in handcuffs should not be a threat to three or four police officers, especially when at least one of them has almost twenty years of police experience.

When bystanders are pointing camera phones at you and muttering about a man not breathing or not moving or being killed, it should trigger something in a police officer’s brain that he needs to reassess what he’s doing and to at least make sure that he’s literally not killing the person he’s made himself lawfully responsible for.

Putting pressure on a person’s back while making an arrest is certainly nothing novel or heinous, but it should be done to gain control and then the officer should move on. It should be a transitory tactic to gain control, normally by handcuffing the person behind their back. Once a person is in control, all weight needs to be removed from the prone arrestee while he or she is on their stomach. Never should the weight be on a person’s neck though. There are too many things that can go wrong with neck restraints, such as broken bones or a lack of blood or air flow. The neck restraint I was very openly taught in the police academy as a legitimate tool to use has long since been disallowed by my own department, and I would imagine by department’s nationwide because of the risks inherent with subduing a person using their neck.

In fact, any striking of a person in the neck is considered deadly force in many departments.

If rolling an arrested person , even somebody not in distress, over onto his or her side doesn’t come as second nature to a police officer nowadays, then they haven’t been trained well enough and that’s partly on the department’s shoulders.

While I am almost always willing to wait for all the facts to come out before I rush to judgement, I just don’t see any benefit to waiting any longer in this case.

No facts will help alleviate this callous display of indifference to another person’s suffering.

It’s not a good look for this officer and what isn’t a good look for one officer reflects poorly upon every single other officer in the country.

These officers have made my job, hundreds of miles away, and the jobs of thousands of decent officers across the land, harder today than it was a couple of days ago, and for that I am angry.

Even if an autopsy says this man had drugs in his system (I don’t know this to be the case or not) or he had a preexisting heart condition or whatever, none of that excuses the length of time this man was on his stomach in cuffs with 200 pounds of cop on top of him.

None of it.

If he was suspected to be on drugs, then that’s all the more reason to treat him with kid gloves.

I often think about how we police and what the goal is at the end of the day.

There were criminals running around committing crimes long before I became a cop. Twenty years later, there are still criminals running around committing crimes, and long after I retire and die, I would venture to guess that there will still be criminals running around committing crimes.

Crime is an unfortunate reality in our world, and there are some truly awful people living among us.

While it is incumbent upon us as cops to arrest these folks when we can, it is not one of our many tasks to punish them for their alleged misdeeds.

A key to policing for me has been to learn to not take this job personally.

It’s a liberating feeling when you can see or hear terrible things written or said about your profession (much of it legitimately deserved) and understand that it’s not Don they’re berating, but the uniform.

I’m okay with that.

Hell, when I see a cop taking radar during rush hour I shake my head in disgust myself.

Government employees should be held to task from time to time.

Are we policing in 2020 in a way that most citizens want us to?

Is our training or lack of training somehow causing too many of us to have implicit or not so implicit biases against minorities?

I don’t know.

I think about deadly force incidents a lot when they happen and run through scenarios on how I would handle similar situations and imagine ways that the officer, even when the use of force is legally justified, could have avoided killing a suspect.

Sometimes, that’s not possible for sure, but I feel like most times, it is, which is easy to say when Monday morning quarterbacking an incident I know.

I think many deadly force encounters can be avoided if we’re willing to sacrifice an immediate arrest to keep from having to kill somebody.

Honestly, that should be our priority always.

Not many immediate arrests are worth anybody’s life.

Michael Brown in Ferguson is a classic example of this outcome.

There was no reason for that man to be able to reach into a police car for the officer’s gun.

I’ll go to my grave of the opinion that his death was legally justified, but at the end of the day, better tactics would have pretty easily prevented his death.

Better tactics comes from better training and having better qualified people apply to be police officers.

None of that is happening anytime soon.

Funding and manpower are two excuses for depleted training sessions and a lack of quality applicants in most departments, but at the end of the day, all an officer has in a fight is his training.

Good training causes officers to act using muscle memory.

Muscle memory is why we scan for threats before we holster our gun without thinking. It’s how we know to look before we fire at a suspect to see whether or not innocent people are too close to do so safely, and it’s how we should just know to roll a handcuffed man from his stomach to his side, especially if he says he’s in pain or he can’t breathe.

I can’t breathe should be a trigger.

When an officer hears certain things, or notices a certain tone in the voice of another officer on the radio, he or she can sense when there is a problem and our bodies react appropriately.

“I can’t breathe” should make our bodies do the same thing when we’re arresting a person.

After Eric Gardner and now George Floyd, I can’t breathe needs to be trigger.

That trigger should cause us to instinctively reassess, when it’s safe to do so, what our arrestee is experiencing and react accordingly so that we’re keeping the person in our charge as safe as we can from preventable injury or God forbid, an in custody death.

 

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31 Responses to A duty to act…or not?

  1. Maggie O'C says:

    I appreciate this piece but I hate when you have to write them. I just don’t understand what the hell is wrong with that officer. However, I never think in broad strokes that cops are bad, there are bad cops but there are some bad everything. Always grateful you are on our side!

    • Alison says:

      Thank you for an honest and rational appraisal of this horrible situation. Sickened by this former officer’s treatment of a man in handcuffs. Sickened by the inaction of the other former officers standing by silently and not speaking up or taking action. Police departments need to improve training and weed out bad actore that won’t/don’t meet expectations.

    • Hey old friend, it’s great to see you’re still around these parts. Thank you for the kind words. How have you been?

      • Maggie O'C says:

        I’m only here when you write and a couple of others! All is well. I miss my kids who are in different cities and I can’t mother hen them as I would like. But in the grand scheme of things, life is super duper! xo

  2. David says:

    I quietly lurk on your site because I think your voice is one of sound reason and value. Thank you for sharing your opinion on this topic. It should be more than opinion, it should be law and training, as you note. I appreciate all you do and say.

  3. Sandra T says:

    I appreciate your perspective in this matter and I agree that “I can’t breathe” from a handcuffed suspect face down on the ground should at the very least cause a good officer to check on their welfare, just like the bystanders witnessing Floyd’s death asked them to do. He was losing consciousness, lost control of his bladder, he went quiet – all signs that someone IS. NOT. OK. He was allegedly committing a nonviolent crime, he was unarmed, he wasn’t threatening anyone, at one point he was sitting on the ground talking to one of the officers. Even if he refused to get in the cruisers, noncompliance or even resisting shouldn’t be a death sentence.

  4. Thank you for this. I have been heartsick and angry over yet another such incident. It’s good to know there are people like you on the force … One can hope the bad apples are in the minority, and will eventually be held accountable.

    • Bad apples are definitely in the minority. I work with mostly really good people, most of whom are like kids to me now since I’m becoming an old timer. It’s hard to understand how something like this happens. I’d be interested to hear what the explanation is. We may never get one, but I hope we do.

  5. Mark says:

    Don, I hope (and I think he is) is as thoughtful an officer as you are.

  6. Thank you for weighing in on this incident. I always appreciate your experienced and educated point of view. I haven’t read much about it, other than one New York Times article yesterday, on purpose because social media has exploded about it (and everyone’s got their own opinion). It saddens me that this is still happening, but hopefully, it will spur more training.

    As a former ship’s officer, I know how much regular training is critical to developing things like muscle memory and having mental checklists that automatically run through our heads in a matter of a few seconds. On the bridge of a ship, people’s eyes are trained out the window, always on lookout unless they’re on the wheel or doing other duties. When you have a conversation with someone, you don’t look at them, but out the window. And weekly fire and damage control drills automated reflexes so when we had real fires, they were dealt with quickly.

  7. Jon Franko says:

    You are such a good writer. Exceptional.

    Keep up the good work. Thank you for your service, and your perspective.

    On Thu, May 28, 2020 at 12:21 PM don of all trades wrote:

    > donofalltrades posted: “When I used to teach law at the police academy, > one of the subjects that always stirred some lively debate was that of > criminal liability and, in particular, how that relates to any duty we as > citizens and the class as future police officers, owe to other” >

  8. Anonymous says:

    “Actions speak louder than words” hasn’t been disproved.

  9. cj says:

    I think being angry that that cop has now made your job harder is an appropriate response and I sympathise. Did he do what he did because he’s just a bad cop at his job and didn’t know the signs that he was killing someone? Or did he do what he did because of some deeply embedded prejudice that caused him to willfully ignore the signs that he was killing someone? Were the other three cops standing around also just terrible at their job and didn’t know what the signs were? There’s more to be angry about here than a job which is now going to be made harder. Thanks for your take on things, great to read something from you again and agreed with the above, hate that anything has to be written at all.

  10. Julie says:

    Don! I was hoping to hear from you! I’d actually been thinking about you and how long it’s been since I’ve had the pleasure of reading your thoughts. – sorry if that sounds creepy, but I trust you know what I mean. I also hate that this kind of travesty came up to give you cause. I understand the feeling that something needs to be done, I get the frustration. I don’t understand the violence. The looting. The destruction of property. I don’t understand at all how these things will help the situation or any one at all. I just don’t get it. That officer was clearly wrong, and I hope justice is served, but the violent actions, the physical harm that is being done to largely innocent individuals is not helping anything or anyone at all, and to be honest, it scares me.

    Thanks for sharing your views Don, it’s always good to hear your thoughts and insights.

    Stay safe my friend, stay safe, and God Bless you and yours.

  11. zinkster says:

    Don, I think of you often…praying you are safe!

    Knowing you as I do, always makes your perspective here that much more REAL. As ugly as some of the subjects are that you write about, you always express the turmoil of your heart and conscience in such a meaningfully beautiful way! I honestly have learned more about the law just reading your blog than I ever knew before. Thank you for this!

    “Seeing” what is happening in the world through your “professional eyes” is always so thought-provoking. Your thought process is always vividly expressed, sometimes terrifyingly so…in a good way, if that makes sense. I wish more people had the opportunity to read your thoughts! I wholeheartedly believe it would encourage people to heal, helping them to experience someone else’s viewpoint written in such a descriptive, real way! I use your posts in discussions with my teenage boys.

    ‘THANK YOU’ for your voice, your rawness in facts & your heart, the professional point of view you always share and your dedication to the American people!!!

    “These officers have made my job, hundreds of miles away, and the jobs of thousands of decent officers across the land, harder today than it was a couple of days ago, and for that I am angry.”

    ^ These words were so hard to read but completely understood. Please know there are still Americans that truly believe in our police!!!

    Stay safe, My Friend!!!

  12. gu4rd1an says:

    dont act in violence , this is what bad actors want to happen in the US

    That cop is a paid ds actor, doing the bidding of the highest bidder, knew the guy he killed for 17 years

    why is the body taken away by cops wearing no shirts – only a bullet proof vest, with weapons, onto a stretcher? where are the EMT personal?

    this is your new 9/11, look for the truth

    why are no democrats condemning the violence?

    INSURGENCY

    Trump is your only hope, lock up george soros and close media matters and MSM
    ________________________________

  13. Lizzi says:

    No money for proper training yet suddenly enough to fund massive amounts of riot gear and supposedly non-lethal weaponry.

    That man (and too many others) seem to be in the police for the express purpose of having force to use against those they consider undesirable. Any cop flashing a white power symbol is in the wrong job. Any cop who stands on and watches while a colleague murders a man is in the wrong job. Any department that doesn’t immediately discipline and subject such people to the fullest prosecution the law can supply in these situations, is failing woefully.

    I believe you’re one of the minority of cops who aren’t bastards. It’s easy to believe most are.

    • Joyce Tyler says:

      It is only easy to believe most cops are bastards if you hide from reality and believe that every bad story you seen on the news actually happens thousands of times more a day and no one notices with a camera phone. The numbers don’t back that up at all.

      Cops do have proper training pretty much everywhere, but some cops are bad. Some training can be improved, but city’s want their police patrolling most days and not taking three days a month off the streets to be on the range/classroom/simulators etc.

      Cops are human beings placed under extreme stress. Some make mistakes. Guess what! Some white cops who criminally, negligently or accidently hurt black people are not racist one bit. I know the idea spread by acitivists and media is that white cops all hate black people and hunt them for sport. In the real world, accidents, murders and negligence occur where the race of everyone involved does NOT PLAY A ROLE. People need to wake up and use some common sense.

      We don’t know what was going through the minds of those Minneapolis cops and I am very interested to hear their perspective. What happened was so wrong and odd that it confounds me. Guess what! The death of George Floyd may not be related to anything racist and still be a criminal murder.

      One in one thousand people DIE each year in America due to medical malpractice and no one says destroy hospitals and call all doctors murdering bastards. In America there were 245 black people killed all year by police and the vast majority under very, very justifiable circumstances. Nine were unarmed black people, but there absolutely is justification in shooting an unarmed assailant. Many cops are killed by assailants who took the cops gun and used it on them.

      Also, remember many of the 245 above were killed by black, Hispanic or Asian cops.

      Black people murdered close over 6,000 other black people and yet black lives matter speaks nothing of those men, women and CHILDREN that die. (I cannot remember any case of a recent police officer murdering a black child.) Only certain black lives matter to BLM. Even though there are like 30 times more black people murdered by other black people than those(even the justified shootings included) involving police. Would that be a pretty racist and hateful motivation to claim only certain black lives matter?

      It is very interesting that one of the most consequential, dangerous, and difficult professions in the entire country is held to a standard that if there is evil involving less than 1 death in 15 MILLION people we call it a genocide and decide to destroy the profession. If there is a total mistake where there is 1 death in 1000 people we don’t even call for reform. People get an insurance payout for the mistake and drive on. Those doctors are very well educated and often not making any decisions under a split second time clock.

      Just some things to consider. Throwing out hateful labels on occupations with close to a million members is a pretty bold statement.

  14. Cookie says:

    Brilliant, Don. Thank you for this.

  15. Lisa T. says:

    Hi I am a friend of Jules and she recommended your article. I am a teacher trainer here in Oregon, and I train teachers of redirecting challenging behaviors and dealing with on the job stress. I am wondering, in your perspective, would police departments be open to having volunteer trainers such as myself come in and help teach mindfulness and self-calm techniques to officers? I think it would be extremely beneficial to pair with challenging and stressful situations. -Lisa

  16. A.J. Goode says:

    Reblogged this on A Goode One and commented:
    I do my best to steer clear of politics here at A Goode One. But this…this isn’t a political issue. This is so much more.

    Don of All Trades is one of my favorite blogs, written by a police officer. He’s occasionally funny, often irreverent, and always — ALWAYS– able to get right to the heart of the matter.

  17. Gina says:

    “I think many deadly force encounters can be avoided if we’re willing to sacrifice an immediate arrest to keep from having to kill somebody.
    Honestly, that should be our priority always.
    Not many immediate arrests are worth anybody’s life.”

    Thank you for sharing your thoughts. I’ve followed your page here for some time & think of you when police issues come up. I was hoping you’d say something about this case & I’m happy to hear there is at least one police officer that believes human life should be the priority.

  18. Bill Copeland says:

    Donofalltrades. I am probably older than you, and never been a policeman and never wanted to be. I would like to go back to some of your first writing on this, Yes I read it all the way thru and agree with all you have said except the man & woman in the convenience store, but then I got your point. At a young age, in military, making some extra money to pay my bar tab, as a bartender. One night a couple got into a squabble about going home. He was drunk and didn’t want to go, she was pulling on his arm, trying to get him to leave. He drew his arm away and hit her with his elbow, knocking her away, I was raised “that don’t happen” and over the bar I went. Long story short, police showed up, I was handcuffed and taken to jail. Court was 2 days later, now I am AWOL, I appear in court along with the two people and they have patched things up and I was a “bad guy”. Released to MP’s and was taken before the commander, busted one pay grade and spent 30 days of KP. In your scenero, the policeman “could” have been better off by getting his drink and leaving.
    Enjoyed the read, an opened my eyes a little more.
    Thank you and stay safe.

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