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.
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:
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.