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Volume 74
Number 9
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
The attorney general has determined The Future of Officer Safety The potential for terrorist activity on
that the publication of this periodical is
necessary in the transaction of the in an Age of Terrorism 2 American soil demands new conceptual
understandings and practical
public business required by law. Use By Michael E. Buerger
of funds for printing this periodical has applications of officer safety.
been approved by the director of the and Bernard H. Levin
Office of Management and Budget.
The FBI Law Enforcement Bulletin The Patrol Officer Law enforcement officers constitute an
(ISSN-0014-5688) is published
monthly by the Federal Bureau of
Investigation, 935 Pennsylvania
By Earl M. Sweeney 14 effective resource in the fight against
terrorism.
Avenue, N.W., Washington, D.C.
20535-0001. Periodicals postage paid
at Washington, D.C., and additional The U.S. Supreme Court recently
When Is Force Excessive?
mailing offices. Postmaster: Send
address changes to Editor, FBI Law
Enforcement Bulletin, FBI Academy,
By Thomas D. Petrowski 27 revisited the issue of excessive force
and provided a significant ruling.
Madison Building, Room 201,
Quantico, VA 22135.
Editor
John E. Ott
Associate Editors Departments
Cynthia L. Lewis
David W. MacWha
Bunny S. Morris
8 Perspective 22 Focus on Marine
Art Director
Denise Bennett Smith
After Firing the Shots, Enforcement
Assistant Art Director What Happens? Terror by Sea
Stephanie L. Lowe
Internet Address
leb@fbiacademy.edu
September 2005 / 1
The Future
of Officer
Safety
in an
Age of
Terrorism
By: MICHAEL E. BUERGER, Ph.D.,
and BERNARD H. LEVIN, Ed.D.
T
raditionally, most people
consider officer safety in
terms of an individual
officer, in extreme circum-
stances, facing a “bad guy”
intent upon doing harm to that
officer. The armed encounter—
and the possibility of death—
puts into high relief the entire
range of tactical defenses that
have constant application:
© Ronald Jeffers
awareness of the environment,
including reading “cues” from importance of incident-specific contacts. Our offerings here add
subjects; threat assessment; and tactical defenses, which remain to the existing canon of safety
approach and contact tech- critical parts of police training. concerns, building upon it in
niques, such as handcuffing, Rather, as futurists, we proffer some instances and supplement-
weapons retention, and firearms that the potential for terrorist ing it in others.2
handling and use. The elements activity on American soil If a terrorist incident occurs
that officers must focus on demands new conceptual as a large-scale public event—
are concentrated in time and, understandings and practical an attack with conventional,
usually, space, with the majority applications of officer safety. chemical, biological, or nuclear
of violent encounters occurring The elements of safety expand weapons against symbolic or
within a 10- to 20-foot radius.1 across time and space, broaden- densely populated targets—
We do not intend to deni- ing the threshold beyond the officer safety concerns change.
grate or underestimate the potential for incident-based Individual safety will be
“
safety with that of the larger baseline understanding of how
public. In addition, a fourth the neighborhoods live and
category spans the other three: move to detect when something
administrative and supervisory Officers will have to is “just wrong.”
responsibility for management take on additional At the intellectual level,
of the long-term and large-scale risks in managing officers must maintain an
concerns. the public’s safety, awareness that the targets of
as well as their suspicion almost certainly
Intelligence and Prevention dealing with the belong to a larger organized
Training to prevent terrorist perpetrators. enterprise. While officers in-
attacks is essentially a matter of volved in multijurisdictional
”
intelligence gathering. Officers task forces and RICO-based
best protect themselves by help- investigations understand the
ing to ensure that no terror Law enforcement agencies demands of enterprise crime
attack succeeds. To this end, can incorporate many of the investigation, most local offi-
individual officers must per- precepts of community policing cers are trained and indoctri-
ceive their duties to be more into their intelligence-gathering nated with an incident-based
than merely handling calls. efforts, such as developing frame of reference. Officers
Information gathering and, cultural awareness, initiating will require a longer time frame
perhaps more important, infor- contact with and identifying and broader set of resources to
mation seeking represent ongo- sympathetic guides and mentors identify a suspect’s or a cell’s
ing efforts that have secondary among new immigrant and contacts, support bases, and
benefits. alternative cultural groups, and potential targets.
September 2005 / 3
This perceptual shift also activities will have a local pay- officer of any rank will encoun-
places action-oriented officers off in terms of criminal activity ter one or more terrorists pre-
in a new and unsatisfying role. in the officers’ jurisdictions, if paring or launching an attack.
Instead of intervening directly managed correctly. Clear- and While most of the interceptions
and “solving” the problem far-sighted officers should make of terrorists have been intelli-
through arrest of an individual, the connection between their gence based and conducted by
officers will need to remain activities and traditional (if federal authorities, officer safety
near-invisible elements in a underserved) functions, such concerns are framed in terms of
larger and more deliberate as preventing crime, nipping “it’s only a matter of time”
network. Premature individual developing problems in the bud, before an officer or deputy
heroics simply may alert the and integrating new residents encounters terrorists on the way
terrorist network to surveillance into the larger community. to or in the act of mounting an
and deflect or postpone any attack. In such an event, the
planned attack. Critical portions individual officer becomes a
“
of the network may escape not secondary but immediate
only arrest but even detection. target—someone the terrorists
These concerns apply only Law enforcement must eliminate to achieve their
to those few officers who agencies can primary objective. Unplanned
encounter an ongoing or immi- incorporate many interception contacts involve
nent terrorist action. Most of the of the precepts protecting the individual
officers charged with intelli- of community officer’s safety in an incident-
gence seeking will contribute specific context, similar to the
little or nothing to any antiter-
policing into their armed encounter but with a
rorist action; those who report intelligence-gathering wider range of threat.
activity into the gathering efforts.... The possibility of unplanned
”
endeavor never will receive interception increases if officers
positive feedback in the form of take their intelligence duties
an arrest or thwarted attack seriously, particularly a focus
because they did not cross paths A strategic understanding of on infrastructure sites. Never-
with a terrorist network or community vulnerability will theless, even everyday enforce-
associate. This lack of feedback identify critical infrastructure ment actions may instigate the
on even local events constitutes (e.g., power plants, bridges, contact. After all, one of the
a long-standing complaint of transportation facilities, and great “What if?” moments in
local officers; the needle-in-a- manufacturing concerns) that American policing involves the
haystack nature of terrorism would make tempting targets course that history would have
intelligence undoubtedly will for terror attacks. taken had authorities stopped
exacerbate that problem. Timothy McVeigh in the rental
To counter skepticism and Interception truck on the way to Oklahoma
disgruntlement, the efforts to Antiterrorist preparations City, rather than afterwards as
develop intelligence on terror must anticipate the possibility he fled the area in a car.
must be transformed into a that a patrol officer, a detail Much of the contingency
larger understanding of the officer from another assign- preparation for unplanned inter-
intelligence function. The same ment, or even an off-duty ception rests on the nature of
September 2005 / 5
connections were arrested in that also pose a threat to their overwhelmed by the horror of
Colombia in 2001, thought to loved ones, from whom they the main incident. Additional
be teaching bomb-making will be separated by duty. lessons may be derived from the
techniques to the Revolutionary Americans have few exem- Aum Shinriyko cult’s attack on
Armed Forces of Colombia.4 In plars of mass panic, the worst- the Tokyo subway or the Cher-
the wake of the robbery of the case scenario. Most of the prior nobyl nuclear accident, even
Northern Bank in Belfast, police examples involve serious but though they occurred in foreign
suspect that some element of geographically bound events. countries and have become
the IRA is turning to organized Wide-scale civil disorders and increasingly distant in time.
crime.5 antiwar protests in the late None of these predecessor
Resources for coping with 1960s had specific geographic events can provide a reliable
any such new threats already dimensions and involved only a road map for an event that
exist. Prior to its dissolution, portion of the populace. Large- instigates mass panic. Ameri-
the Royal Ulster Constabulary scale mass evacuations from cans must travel back to a much
of Northern Ireland learned to different age, Orson Welles’
“
contend with the constant threat broadcast dramatization of War
of assassination of its officers. of the Worlds, to find a real-life
The Israeli police have dealt event involving open panic. The
with the potential for renewed The most vivid most vivid portrayal of cataclys-
suicide bombings on an almost portrayal of mic events is found in motion
daily basis. Americans training cataclysmic events pictures, and that image is of
Iraqi police, like those engaged is found in motion sheer panic. One of the con-
in similar peacekeeping mis- pictures, and that cerns will be how to avoid
sions in other parts of the globe, image is of modeling fictitious behavior.
have encountered and adapted sheer panic. Preplanning (not seen publicly
to variations of similar threats. since the civil defense plans for
”
New and modified training nuclear attack during the Cold
regimens can capitalize on the War) will be necessary for both
antiterrorist lessons already hurricane-threatened areas are the guides (police, emergency
learned throughout the world. implemented with several medical services, and other
hours’ warning and along pre- public safety entities) and the
Aftermath planned, well-publicized routes. guided (the general public).
The odds that terrorists will Even the unexpected attacks Ideally, the public’s reaction
succeed in launching an attack on the Murrah building in will be more disciplined, along
are slightly greater than those Oklahoma City and the World the lines of the evacuation of
of serendipitous interception. Trade Center, catastrophic as projected hurricane landfall
In that event, officers’ safety they were in terms of casualties, sites. Even in such a case,
becomes a subordinate part remained localized in time and provisions should be made in
of the general welfare of the physical dimensions. The advance and not left to ad hoc
citizenry in the attack area. longer-term environmental solutions. Evacuation will be a
Even more pressing, perhaps, is impacts of the collapse of the natural reaction to any mass-
the fact that officers will have to Twin Towers may have greater casualty possibility; therefore,
function under circumstances ramifications, but they were preplanning for evacuation;
September 2005 / 7
global terrorism offers us a and have actively participated in the 5
Lizette Alvarez, “Police Fear IRA Is
chance to use an issue of deep Futures Working Group, including Dr. Turning Expertise to Organized Crime,”
Levin’s recent contribution as the futurist The New York Times; retrieved on January
emotional significance to all in residence at the FBI Academy. 19, 2005, from http://www.nytimes.com/
officers, regardless of other 3
Bryan Vila and Dennis J. Kenney, 2005/01/19/international/europe/
interests, to begin to move National Institute of Justice, “Tired Cops: 19ireland.html.
larger questions forward. The Prevalence and Potential Conse-
quences of Police Fatigue,” NIJ Journal Dr. Buerger, a former police officer, is
248 (2000): 17-21; retrieved on May 3, an associate professor of criminal
Endnotes 2005, from http://www.ncjrs.org/pdffiles1/ justice at Bowling Green State
1
For additional information, see jr000248d.pdf. University in Ohio.
4
Anthony J. Pinizzotto, Edward F. Davis, Juan Forero, “IRA Men Accused of
Dr. Levin commands the Policy and
and Charles E. Miller III, “Escape from Aiding Rebels to Go on Trial in Colom-
Planning Bureau of the Waynesboro,
the Killing Zone,” FBI Law Enforcement bia,” The New York Times; retrieved
Virginia, Police Department and is a
Bulletin, March 2002, 1-7. on October 5, 2002, from http://www.
2 professor at Blue Ridge Community
Both authors have extensive experi- nytimes.com/2002/10/04/international/
College.
ence in the law enforcement profession americas/04BOGO.html.
Perspective
After Firing the Shots, involves violent confrontations. In fact, a large
What Happens? segment of use-of-force training in law enforce-
By Shannon Bohrer, M.B.A.
ment covers the mental preparation for such an act.
Academy instructors often tell their students, “The
training is not because you might be involved in a
E
violent confrontation; the training is to prepare you
very law enforcement academy in the for the violent confrontation that you will be in-
United States trains officers for the pos- volved in.”
sibility that they may have to use force, meaning Such an expectation for officers to use force in
any physical force up to and including deadly the performance of their duties has merit. After all,
force.1 Most academies base this training on the in 2002, law enforcement officers in the United
equation of criticality and frequency. In other States locked up 13,741,438 people, or an esti-
words, how critical is the training, and how fre- mated 37,647 arrests per day.2 Given this large
quently will officers need the training? When look- volume of apprehensions and the propensity for
ing at the use of force at the upper end of a con- violence of many of those taken into custody, train-
tinuum (deadly force), the frequency of the act may ing officers for violent confrontations proves logi-
not occur that often; however, the criticality is cal, especially considering that many of the indi-
extremely high. viduals arrested carried lethal weapons. Law
Officers receive instruction in the use of fire- enforcement is a dangerous profession that some-
arms, batons, chemical agents, and defensive tac- times requires officers to use deadly force as their
tics, thereby demonstrating that part of their job only option.
September 2005 / 9
and sound, the number of rounds fired, and even Additionally, almost as an afterthought, the chief
the words spoken?8 mentioned conferring with the prosecutor’s office.
Officers should receive training on how to re- The involved officers know this from reading it in
port critical incidents. They must learn to convey the newspaper and also watching the interview on
the facts as they know them, not reconstructed the local news. It is not uncommon for officers to
from other sources. For example, if officers use relate that they were reading a newspaper about an
their firearms, they may not remember how many incident and discovered that it was the one that
shots they fired. If so, they should state that infor-they were involved in. Such events, especially
mation in the report. Officers should have suffi- when the involved officers do not expect them, can
cient time to gather their thoughts and have the cause unnecessary stress.
benefit of legal counsel before submitting a report To combat these reactions, officers should re-
or participating in taped or recorded interviews. ceive training on what to expect from their agency
These documents can affect of- and the media if they become
ficers for years, from internal in- involved in a such a situation.
vestigations to criminal and civil Simply communicating to offic-
cases. For example, some offic- ers that their agency could make
ers have had their critical inci- these type of statements, before
dent reports returned because re- they appear on the nightly news,
viewers or investigators found can help alleviate this stress. It is
them incomplete. So, the in- the agency’s duty to fully inves-
volved officers filled in the tigate every incident involving
blanks, trying to do the right the use of deadly force. Society
thing, and later had the added gives law enforcement organiza-
information used against them. tions authority under certain
This reveals another important circumstances to employ such
training matter. Law enforce- action, which represents a sig-
ment personnel who investigate nificant responsibility. Officers
police shootings also need special training to must understand that any department would be
ensure that officers involved in critical incidents negligent if it did not fully investigate a critical
are treated fairly. incident. The investigation does not constitute a
Of importance, these training issues on direct reflection on the involved officers nor on the
memory and critical incidents do not represent an specific incident in which they participated.
excuse for officers regarding accuracy and com- As the department has an obligation to investi-
pleteness of reports. Instead, they are intended to gate every detail, even a clearly justifiable shoot-
reflect reality, not television policing. ing, the media feels a similar need and believes it is
on the front line of free speech. Officers involved
Agencies and the Media in a critical incident may not like what they see,
From their perspective, the involved officers hear, or read about the event, but expecting a vari-
see the critical incident very clearly. Any force ety of reactions can prove helpful. Fortunately, not
required was to prevent injury or death to a citizen, every critical incident results in negative com-
a fellow officer, or themselves. However, the chief ments from the department or the media. Some-
or public information officer has made statements times, both support the involved officers whole-
to the press that the investigation is continuing. heartedly.
September 2005 / 11
became involved in a critical incident that required Again, officers should have training before
the use of deadly force. Even years later, the they become involved in a critical incident to un-
officer’s thoughts return to that event on what derstand that it could become a major issue in their
seems like a daily basis. This prolonged timetable professional and personal lives for years. Data col-
does not occur in every instance, but it also is not lected from previous incidents and interviews with
that unusual. Aside from dealing with the media, involved officers have revealed that the after-inci-
counseling, and other internal factors, officers can dent actions can span years, and officers need to
face another challenge: becoming embroiled in know this. Many police instructors feel that exam-
civil suits for extended periods of time. ining previous civil suits can be helpful, even
Sometimes, the departmental investigation, the though most of the suits have little merit. Training
media’s reporting, and any legal issues are re- should not imply that every event will take years to
solved relatively quickly. However, other critical resolve but, rather, should stress the possibility of
incidents appear to have a life of such long-term consequences.
their own. This seems especially
true with civil litigation issues. Best and Worst Friends
For example, two officers re-
sponded to a call concerning a
male who was emotionally dis-
turbed and fighting with his par-
“ The choice that
officers have to make
in the use of force
Officers involved in critical
incidents generally do not speak
about their experiences. Their
fellow officers often critique
ents. When the officers tried to generally is not a win- them and not always in a posi-
help, the man stabbed one of- win or even a win- tive light. It may not matter that
ficer, who almost died. The sec- lose proposition. the shooting was justified or
ond officer shot and killed the saved a life. If they did anything
subject, and his parents later sued
both officers. What would have
happened if the son had stabbed ” wrong, their fellow officers will
let them know. Such statements
as “If I were there, I would have
his father, mother, or himself? Television policing done...” and “Why did you do that?” are not un-
makes it clear: the police are the “good guys”; they common. Conversely, many involved officers
arrest and shoot the “bad guys.” However, in the have advised that the best thing that a fellow of-
real world, the bad guys do not always resemble the ficer said was, “If you feel the need for company or
imagined model. This, in turn, reflects a possible to talk, call me anytime, and I will be there.”
problem with training. The reactions of fellow officers, family,
The choice that officers have to make in the use friends, and neighbors surprised many involved
of force generally is not a win-win or even a win- officers and caused unintended consequences. Ex-
lose proposition. Many times, the option is either pressions, such as “Hey, killer”; physical gestures
bad or worse, and, sometimes, worse is the better of a fast draw; and silence or total avoidance of the
choice. No officer expects or wants to shoot an subject depict a few of the responses that involved
individual who is emotionally disturbed. But, if the officers have endured. While the individuals offer-
officer fails to shoot and someone else gets hurt, ing these often had no intention of doing any harm,
was the choice wrong? Sometimes, it does not they caused the involved officer increased stress
matter how right officers are or how justified the with their thoughtless words and actions.
shooting was, if they use deadly force, they prob- Therefore, educating officers about what to
ably will be sued. expect if they are involved in a critical incident
September 2005 / 13
The Patrol © Mark C. Ide
Officer
America’s
Intelligence
on the Ground
By EARL M. SWEENEY, M.S.
I
n recent wars, international
police conflicts, and mili-
tary skirmishes, America’s
strategists and troops in action
have faced the continual chal-
lenge of obtaining accurate
“intelligence on the ground.”
Neither satellite photos nor
early warning radar can achieve
the level of valuable knowledge
provided by well-trained opera-
tives familiar with diverse cul-
tures and languages and well-
funded intelligence agencies
cooperating fully to coordinate foreign country requires U.S. shown an ability to turn every-
their findings. Now that this troops to have accurate intelli- day products and equipment—
country has become the target gence on the ground in that from large airliners to crop
of international terrorists, the location, so too does the pre- dusters, tractor-trailer units to
need for accurate intelligence vention and rapid mitigation of backpacks, and model airplanes
has increased significantly. terrorist acts within America’s to toy rockets—into instruments
Unlike during the Cold War borders necessitate the accumu- of death and destruction.
when the United States prepared lation of pertinent facts about Whether male or female, young
against the threat of missiles those who wish to commit these or old, or foreigners who harbor
fired from across the sea, today, attacks. grudges against cultures and
a more likely attack will come This nation cannot rely religions dating back to the
from within, designed to strike exclusively on technology to Middle Ages or homegrown
fear in the populace, disrupt the provide it with essential infor- Americans with right- or left-
economy, and destroy the sense mation to help fight this differ- wing leanings that impel them
of security and the freedom of ent kind of enemy: one as to commit violent acts, these
movement that Americans diverse and numerous as the adversaries have lived and
enjoy. Just as a skirmish in a imagination of those who have moved freely in this country,
“
a largely untapped and unrecog- nation’s streets and highways.
nized source of intelligence on Murderers, robbers, auto
terrorists and potential terrorist thieves, and drug traffickers all
acts: the local police officer, the
To keep American travel by motor vehicle. And,
county deputy sheriff, and the communities safe from when they violate the traffic
state trooper or highway patrol terrorists, all law laws—a frequent occurrence
officer. While conducting their enforcement officers because criminals typically are
daily activities, such as foot, must learn certain preoccupied by their crimes—
vehicle, and bicycle patrol; techniques and that familiar police light appears
community policing efforts; tactics. in the mirror. This once meant
”
traffic stops; accident investiga- two things: a short conversation
tions; and answering calls for with the officer and a traffic
service, these officers already citation. Today, much more can
are accepted by their communi- The Highway Safety Desk Book; follow....The subject’s de-
ties and, therefore, can become and Police Traffic Services meanor, the caliber of responses
America’s intelligence on the Policies and Procedures. These to questions, a lack of knowl-
ground. The challenge is to train publications, available on the edge of the vehicle—these and
them in what to look for, what International Association of similar factors noted by the
to report, and how and to whom Chiefs of Police Web site at alert, trained observer recom-
to report it, ensuring that appro- http://www.theiacp.org, are mend further investigation.
priate follow-up occurs and that updated on a regular basis. And, further investigation pays
these officers receive feedback Recent revisions have included off in criminal arrests.”1
and appreciation for their references to the possibility of A noted criminologist
efforts. interdicting and preventing stated, “The higher the level of
terrorism through the activities traffic enforcement, the lower
TOOLS IN PLACE of officers engaged in traffic the level of robbery. Aggressive
As a team, the Highway patrol. traffic enforcement creates a
Safety Committee of the Inter- “Traffic law enforcement broad general effect of deter-
national Association of Chiefs gives officers at the state, local, rence.” He also has said that
of Police and the National and county police levels the some crimes can be prevented
September 2005 / 15
simply by a visible police enforcement and community policies. Some feel that this
presence.2 policing in communities diversity makes it more difficult
The misbegotten idea that throughout the United States to for terrorists, especially those
stopping motorists somehow reduce both traffic crashes and familiar with police in foreign
hurts police-community rela- street crime and to apprehend countries, to predict when and
tions has hampered traffic law more criminals and wanted where they will encounter a
enforcement efforts in some persons, they certainly could police presence and that this, in
locales. Community policing employ the same strategies to itself, may serve as a deterrent.
and traffic enforcement need deter and apprehend terrorists
not be mutually exclusive. and root out sleeper cells buried TRAINING NEEDS
“These new policing styles also within their jurisdictions. Some Americans do not want a
realize that the officer on the police researchers have theo- future where terrorism becomes
beat or in the squad car, deliver- rized that one reason terrorists as common a street crime as
ing direct police services to the have not been as bold in this robberies of all-night conve-
people, often is in the best nience stores. To prevent this,
position to recognize problems” law enforcement officials need
“
as the police go about the task to study the modus operandi of
of reducing fear and making a the terrorists in other nations
safer environment.3 To a large This nation cannot and determine from their coun-
extent, how well the public rely exclusively on terparts in these countries what
accepts police traffic enforce- technology to provide has worked and what has not in
ment depends on the attitude it with essential preventing and reacting to
and approach of the officers as information to help terrorist violence. Then, they
they go about this task. fight this different must communicate this infor-
Pointing out both the criti- kind of enemy.... mation to patrol officers, detec-
cality of police-citizen contacts tives, supervisors, and adminis-
”
to community relations and the trators in a form that they can
wellspring of information that use, ensuring that they remain
can be derived through increas- proactive in their efforts to iden-
ing these contacts, a national country rests with the frag- tify potential terrorist threats.
survey indicated that in 1 year, mented nature of law enforce- To keep American commu-
21 percent of citizens had a ment. Rather than having a nities safe from terrorists, all
contact with the police and that national police force, American law enforcement officers must
52 percent of those encounters law enforcement consists of a learn certain techniques and
involved traffic stops, whereas hodgepodge of federal officers tactics. Teaching them will take
only 19 percent were to report a plus more than 17,000 state, time and cost money. Most state
crime. In only 1 percent of these county, and local officers POST (peace officer standards
did the police have to use any wearing different uniforms and and training) commissions or
physical force, and 84 percent driving vehicles of varied councils require police acad-
of the drivers stopped felt that appearance, working, in many emies to provide recruits with a
they deserved it.4 cases, in small geographic areas minimum number of hours or
As law enforcement agen- on contrasting schedules and weeks of basic academy train-
cies have used traffic adhering to a mixture of ing. Typically, this ranges from
September 2005 / 17
to further the advancement of firearms training and vehicular state law enforcement organiza-
such training. pursuit simulators. Others have tions to gather intelligence.
included them in officer-sur- After perceived abuses in the
Using Technology vival scenarios in their basic 1960s, many agencies dis-
Technology may help in the and in-service programs. The banded their intelligence units.
search for more innovative and New Hampshire Police Acad- Others never had the need to
efficient means of training emy is one of several that has develop an intelligence function
delivery. In addition to such acquired a portable, scale-model and, therefore, must learn. If
ordinary items as roll-call mock-up of a typical commu- departments truly regard their
videos, audiotapes for officers nity. The academy takes the patrol officers and general
to play at odd moments in their model around the state, giving assignment detectives as
cruisers, CDs for laptops, and law enforcement officers, fire- America’s intelligence on the
satellite broadcasts to remote fighters, public works officials, ground, they cannot reserve this
locations, numerous other ways and others the opportunity to training for special units; every
can carry more training to the sworn officer needs a basic
officer, rather than always awareness.
“
bringing the officer to a remote Terrorists may tip their
site for training. For example, hands before an attack in many
New Hampshire and Kansas are Technology may different ways. They may
conducting an experiment to help in the search for purchase or steal military
supply public safety and emer- more innovative and equipment; buy or rent heavy
gency medical personnel with efficient means of vehicles or limousines; lease
24-hour educational program- training delivery. crop dusters; purchase former
ming via satellite hookups and police vehicles or ambulances
”
television sets installed in every at auction; attend schools to
police station, fire department, qualify for commercial driver
and trauma hospital in the state. licenses with hazardous materi-
This will offer a regular sched- participate in a range of sce- als endorsements; buy or steal
ule of training in a variety of narios involving natural disas- industrial chemicals, fertilizers,
subjects with a special emphasis ters and terrorist acts as a means explosives, detonation devices,
on terrorism. The schedule of practicing the unified com- and containers for constructing
includes several hours of mand principles of the Incident bombs; enroll in flight schools;
locally based, state-specific Command System (ICS) and the videotape critical infrastructure,
programming. National Incident Management such as public buildings and
While not all subjects can System (NIMS), recently man- bridges, for surveillance and to
be taught in a typical classroom dated by Congress for all states test security measures of local
environment or by television as a condition of continued police presence in and around
hookup, all training must be receipt of federal funds. such sites; make threats or brag
practiced on a regular basis to friends, family, or like-
because the skills needed to Gathering Intelligence minded individuals or on Web
combat terrorism are perishable. One of the most important sites; travel to countries known
Some academies recently have tasks involves increasing the to host terrorist activities; have
added terrorist scenarios to their ability of local, county, and sudden new or unidentified
September 2005 / 19
when no males are present. • spot attackers, such as pat their upper bodies with their
Officers visiting Arab homes suicide bombers; hands; display hyper-vigilant
also should not slouch in chairs • carry out rescue and evacua- stares; or fail to respond to
or display the soles of the shoes tion tasks simultaneously voice commands. When they
to the hosts when visiting.7 with investigative duties and detect these telltale signs,
Other ethnic groups have countersurveillance to detect officers must know the best
similar sensitive characteristics, accomplices who may have course of action to take.8
such as the reverence shown by remained nearby to make Law enforcement execu-
Asians to their elders, that sure the attack succeeded; tives, administrators, and other
officers must learn. and high-level commanders will
Interestingly, most law benefit from training and
enforcement officers seldom • protect themselves while re- discussions that increase their
react favorably to cultural sponding to such incidents. familiarity and comfort level
awareness courses billed as with the principles of NIMS and
“
“sensitivity” classes that con- ICS, the legal issues surround-
centrate only on past transgres- ing police surveillance and
sions and infer that officers are intelligence-gathering activities,
thoughtless and unfeeling. In- The challenge is the emerging nature of terrorist
stead, the cultural competency to train them in threats, the methods for identi-
training that focuses on officer what to look for, fying the top terrorist targets
survival resonates best. If what to report, and located in or near their jurisdic-
officers believe that the training how and to whom tions, the availability of federal
will help them better detect to report it.... grants and effective techniques
and react to or defuse a threat, for developing grant requests,
”
gather more information in an and the appropriate modifica-
investigation, and avoid becom- tions to resource allocation that
ing the target of a lawsuit or they should make during peri-
disciplinary action, they likely This training must involve ods of heightened terrorist alert.
will listen and absorb the not only the proper use of Local, county, state, and federal
information. personal protective equipment agencies in the area will profit
and the role of the patrol officer from regularly scheduled con-
Recognizing the Threat in the incident command system ference calls to assess the nature
Patrol officers need special- but also the possibility of of any current threats and quar-
ized training because they may multiple, synchronized attacks terly face-to-face meetings with
be the first responders to a or secondary explosive devices presentations by intelligence
bombing or other terrorist act, placed to harm first responders. analysts and others. Depending
or they may discover a terrorist Patrol officers need to know, for on the level of threat and activ-
act in progress while on special example, that suicide bombers ity in a given area, Compstat-
duty protecting a critical asset may wear clothing out of sync style briefings with mapping
or during a heightened or in- with the weather, their location, and geographic analysis can
tensified patrol of a potential or their social positions; carry help ensure that mid-managers,
target area. They must know heavy luggage, bags, or back- precinct and bureau command-
how to— packs; repeatedly and nervously ers, and others take the terrorist
September 2005 / 21
Focus on Marine Enforcement
Terror by Sea
The Unique Challenges of Port Security
By Cole Maxwell and Tony Blanda
© Mark C. Ide
“
dertaken for a commercial gain, crews, and disrupt maritime traf-
pirates will not hesitate to carry The fight against fic along the straits, crippling re-
out a terrorist act if someone maritime terrorism, gional and international trade.
pays them enough and they have unlike conventional
a reasonable chance of getting threats, is a Post-September 11 World
away.”2 This nexus cannot be complicated struggle Before the tragic events of
ruled out. After all, if terrorist with neither an September 11, marine enforce-
groups are to sustain their opera- easy nor a rapid ment officers received special-
tions, they likely will tend to- conclusion. ized training to combat drug
ward mounting suicide attacks
on commercial and military ves-
sels for such purposes as—
• procuring alternative revenue for their main
” smuggling and illegal immigra-
tion and to protect America’s
natural resources and environ-
ment. Today, however, because of the threat of
initiatives (i.e., simple piracy); maritime terrorism, the need for advanced, special-
• carrying out suicide attacks on unsuspecting ized, and tactical training of these officers has
ships or ports in the spirit of September 11; become far more critical.
As the tip of the spear, the U.S. Coast Guard
• smuggling weapons and explosives to their and Customs and Border Protection (CBP) are
affiliates in other parts of the world, probably tasked with the protection of America’s ports. One
by hijacking a ship before renaming and of the Coast Guard’s principal missions involves
otherwise disguising its identity and provid- safeguarding U.S. ports and waterways, whereas
ing a new crew and manifest; the primary mission of CBP is to inspect cargoes
• seeking ransoms and trading hostages for and cargo containers entering U.S. ports.3 To meet
members of their groups detained by authori- the unprecedented challenges facing them,
ties; and the Coast Guard and the CBP have allocated
September 2005 / 23
additional workers to their respective port- and resources are finite and security forces must be
cargo-security missions and have initiated several enduring, sustainable, and flexible enough to ac-
programs designed to tighten security not only of commodate both local and regional requirements
port areas but also of merchant ships, the cargoes while remaining able to adjust to changing security
they carry, and their crews. levels. The shifting priorities have resulted in ma-
The United States has taken the common-sense rine enforcement units evolving into special opera-
approach of detecting and deterring potential tions as opposed to merely patrol. For example, the
threats long before they escalate into clear and Coast Guard created active-duty, multimission,
present dangers. In the maritime arena, this re- mobile teams with specialized capabilities to close
quires “identifying and intercepting threats well critical security gaps in the nation’s strategic sea-
before they reach U.S. shores.”4 This strategy sup- ports. Representing just one element of the defense
ports national-level objectives while recognizing posture in U.S. ports, these teams augment existing
the uniqueness of the maritime Coast Guard units and law en-
environment, including the forcement agencies as opposed
difficulty associated with the to working alone. CBP also
shared use of oceans and follows a forward-deployed
waterways. strategy. The Container Secu-
Denying the use and ex- rity Initiative represents over
ploitation of the maritime do- two-thirds of all cargo contain-
main by terrorists as a means to ers shipped to the United
attack U.S. territory, popula- States and requires, among
tion, and critical infrastructure other things, that incoming
requires increased maritime containers be screened before
domain awareness (MDA) and they depart for U.S. ports of
enhanced security operations. entry, rather than after they ar-
Currently, the U.S. maritime rive on American shores.
domain is protected via intelligence information Other national efforts include greater intelligence
and layered, multiagency security operations na- collection, new regulations, increased patrols, ad-
tionwide, including the strengthening of the secu- ditional assets, and partnering with other law en-
rity posture and reduction of vulnerability of forcement agencies and the maritime industry.
American ports.
The first MDA consideration is the effective New Training
understanding of anything in the marine environ- U.S. policies direct agencies in the maritime
ment that could adversely affect America’s secu- community to deter, detect, and defend against
rity, safety, economy, or environment. Given the traditional and asymmetric attacks. Every federal,
physical impossibility of patrolling the entire mari- state, and local marine enforcement officer should
time domain, building a robust MDA capability have training that addresses the current trends in
can provide national leaders, operational com- worldwide maritime terrorism. However, the agen-
manders, and maritime stakeholders the informa- cies needing maritime enforcement training have
tion, intelligence, and knowledge needed to make limited qualified educational facilities that, in turn,
operational and policy decisions. Enhancing mari- have few vessels, specialized equipment, and ve-
time security operations includes the reality that hicles with which to conduct training.
September 2005 / 25
Conclusion Endnotes
In the post-September 11 world, the threat of 1
John F. Frittelli, “CRS Report for Congress,” Analyst in
terrorist attacks reaches into every segment of Transportation, RS21979 (Washington, DC, 2003), 2.
2
American life, whether on land, sea, or in the air. International Maritime Bureau, High Seas Terrorism Alert
in Piracy Report (London, 2002).
Protecting this country’s ports and waterways con- 3
James D. Hessman, “A Maritime Challenge of Staggering
stitutes a daunting challenge due to the sheer mag- Dimensions,” Navy League of the United States, May 2003, 1.
nitude of the task. 4
Admiral Thomas H. Collins, Maritime Strategy for Home-
Recognizing the scope of such an undertaking, land Security (Washington, DC, 2002), 2.
the Federal Law Enforcement Training Center has
created a new training program for marine law
enforcement officers who must safeguard U.S.
Mr. Maxwell is a senior instructor in the Marine Training
maritime interests. Providing these dedicated men
Branch of the Federal Law Enforcement Training Center in
and women with the best techniques and tactics for Glynco, Georgia.
dealing with maritime terrorists will ensure that
Mr. Blanda is a senior instructor in the Marine Training
this country remains strong and committed to Branch of the Federal Law Enforcement Training Center in
countering every threat, even if it is borne on the Glynco, Georgia.
waves.
Subscribe Now
T oo often, it seems, news decisions. The U.S. Supreme approach to defining constitu-
footage shows American Court recently revisited this tional constraints on the use
law enforcement officers issue and provided a significant of force by law enforcement,
using force to effect an arrest or ruling. stating that force used by
defend themselves. The sight In December 2004, the officers constitutes a seizure
of a sworn peace officer, who Court announced its decision under the Fourth Amendment6
has taken an oath to serve and in Brosseau v. Haugen.2 In and is objectively evaluated for
protect, using violence naturally Brosseau, the Court further reasonableness.7
appears inconsistent and inher- examined how to evaluate law The Katz decision profound-
ently repulsive to any objective enforcement uses of force to ly impacted the way courts
viewer who likely knows little determine whether such actions analyze civil rights lawsuits
of the realities of law enforce- were excessive. This decision brought pursuant to Title 42,
ment. Naive commentary refines the current trilogy of Section 1983 of the U.S. Code
labeling the force used as ex- U.S. Supreme Court decisions (and its federal counterpart
cessive often accompanies such that define when law enforce- Bivens v. Six Unknown Agents8).
footage.1 But, when is force ment officers are civilly liable In Katz, the Court established
excessive? While some critics for uses of force. Tennessee v. a two-step approach to these
may be quick to characterize Garner,3 Graham v. Connor,4 lawsuits. It held that courts first
force as excessive, the law and Saucier v. Katz5 comprise view the alleged facts9 and es-
reflects the realities that officers those cases. Garner and Gra- tablish whether a constitutional
face in making use-of-force ham set out the general violation could exist pursuant
September 2005 / 27
“ Simply put, only
force that is
clearly and plainly
Department. A former crime
partner had complained that
Haugen had stolen tools from
his shop. Brosseau later learned
that a felony no-bail warrant
something no existed for Haugen’s arrest
reasonable police on drug and other nonviolent
officer could ever offenses. The day after receiv-
do violates the ing the associate’s complaint
Constitution. and verifying the arrest warrant
for Haugen, Brosseau respond-
Special Agent Petrowski is the associate
division counsel for the FBI’s Dallas field office.
” ed to a report that Haugen and
others were fighting in the yard
of his mother’s home. When
Brosseau arrived, Haugen ran
out of his mother’s yard and hid
to the principles enunciated stated that while uses of force in the neighborhood. Brosseau
in Garner and Graham. If no by police occur that are clearly requested assistance, and,
possible constitutional violation excessive or clearly appropriate, shortly thereafter, two officers
occurred, then the court would a gray area remains in between. and a canine arrived to assist in
summarily dismiss the lawsuit. The Court went on to say that locating and arresting Haugen.
However, if the court found a when an officer’s use of force The two associates with whom
constitutional violation, then it falls within this gray area, defer- Haugen had been fighting and
would determine if the officer ence must be paid to the officer Haugen’s girlfriend and her
involved should be entitled to and qualified immunity granted. 3-year-old daughter were at
qualified immunity.10 The eval- After the Katz decision, the scene. Haugen’s SUV was
uation of whether the officer there were numerous cases eval- parked in the driveway facing
can receive qualified immunity uating whether police uses of his girlfriend’s car (occupied by
constitutes a separate and force fell in the “hazy border” her and her child) with about
distinct analysis from the initial between the clearly excessive 4 feet between the two vehicles.
determination of whether the and the clearly constitutional The two associates were in a
force used was constitutional. as defined in that decision. pickup truck parked on the
In Katz, the Court specifi- Brosseau was the U.S. Supreme street in front of the driveway
cally held that law enforcement Court’s vehicle to address this about 20 to 30 feet away.
officers may apply force that issue. After being spotted by a
eventually is determined to neighbor who alerted the offi-
be unconstitutional yet remain The Facts cers, Haugen appeared and
protected by qualified immu- Like virtually all case law ran into the driveway. With
nity. In the words of the Court, related to law enforcement use Brosseau in pursuit, he jumped
“[q]ualified immunity operates of force, Brosseau was a civil into the driver’s seat of his SUV
to protect officers from the rights lawsuit brought by and closed and locked the door.
sometimes hazy border between Kenneth Haugen against Officer When she caught up, Brosseau
excessive and acceptable Rochelle Brosseau of the pointed her gun at Haugen and
force.”11 The Court plainly Puyallup, Washington, Police ordered him to get out of the
“
After it started but before it Katz—first touched on the issue
moved, Brosseau jumped back of whether the force used was
and fired one shot through the In Brosseau, the constitutional, indicating that
rear driver’s side window at a Court further it would bypass this and focus
forward angle, hitting Haugen examined how to solely on the qualified immunity
in the back. She later testified evaluate law question. “[W]e express no
that she shot Haugen because enforcement uses view as to the correctness of
she was “fearful for the other of force.... the Court of Appeals’ decision
officers on foot who [she] be- on the constitutional question
”
lieved were in the immediate itself. We believe that, however
area, [and] for the occupied that question is decided, the
vehicles in [Haugen’s] path and [Ninth Circuit] Court of Ap-
for any other citizens who might The Court’s Evaluation peals was wrong on the issue
be in the area.”12 In justifying It should be noted that the of qualified immunity...[w]e
her use of force, Officer Court’s decision in Brosseau exercise our summary reversal
Brosseau also cited the fact that was an appeal by Officer procedure here simply to correct
Haugen had a no-bail drug Brosseau to the decision of the a clear misapprehension of the
warrant and that she had prob- Ninth Circuit Court of Appeals qualified immunity standard.”16
able cause to believe that he to deny her summary judg- Essentially, the Court assumed
had committed a burglary. She ment15 in the lawsuit brought by for the purposes of this decision
also stated that she originally Kenneth Haugen. That is to say, that Officer Brosseau’s conduct
thought he was attempting to the lower court found that the was unconstitutional and pre-
access a weapon when he ran facts indicated that Officer sented this case as illustration
to his vehicle. Brosseau’s use of force might that officers still may be entitled
Even though he was have violated Haugen’s consti- to qualified immunity even
wounded, Haugen accelerated tutional rights. Applying the though they used force in an
aggressively and drove through second inquiry per Katz, the unconstitutional manner.
the small, tight space between lower court then found that The Court reiterated that
the other vehicles. He swerved Officer Brosseau was not “qualified immunity shields
across a neighbor’s lawn and entitled to qualified immunity an officer from suit when she
September 2005 / 29
makes a decision that, even if depends very much on the facts The Practical Impact
constitutionally deficient, rea- of each case. None of them Brosseau provides one
sonably misapprehends the law squarely governs the case here; example of a use of force by a
governing the circumstances she they do suggest that Brosseau’s police officer that, while consti-
confronted.”17 The Court then actions fell in the ‘hazy border tutionally questionable, was
stressed that the critical issue in between excessive and accept- certainly in the “sometimes
determining if qualified immu- able force.’ The cases by no hazy border between excessive
nity is warranted is whether the means clearly establish that and acceptable force,” and,
officer had fair notice that the Brosseau’s conduct violated therefore, the officer was enti-
conduct in issue was unlawful. the Fourth Amendment.”19 tled to qualified immunity.
This is determined by the state With this in mind, how There have been numerous
of the law at the time of the familiar do police officers need lawsuits evaluating law enforce-
conduct. If the law at that time to be with the current state of ment officers’ uses of force
did not clearly establish that the the law? As Judge Gould wrote under the Katz “hazy border”
officer’s conduct would violate qualified immunity mandate. As
the Constitution, the officer is noted by the Court in Brosseau,
“
entitled to qualified immunity. the evaluation of force used by
In defining whether certain officers always is very fact
conduct is clearly established, The answer is specific. Predictably, because
the Court referenced one of its for law enforcement use-of-force cases are so fact
often-cited qualified immunity managers to deal specific, court decisions can
decisions—“that the right the with the issue in a vary, finding that police uses of
official is alleged to have vio- forthright and force are inside21 or outside22
lated must have been ‘clearly Katz’s “hazy border.” It is this
established’ in a more particu-
instructive manner.
inherent uniqueness to every
”
larized, and hence more rel- use-of-force incident that makes
evant, sense: The contours of it difficult to characterize par-
the right must be sufficiently ticular police conduct as being
clear that a reasonable official in his excellent dissenting clearly established. If not
would understand that what he opinion in the Ninth Circuit clearly established, then—as
is doing violates that right.”18 Brosseau decision, “[J]udges, in Brosseau—the officer’s con-
The ultimate issue then is unlike police officers, have the duct is in Katz’s “hazy border,”
whether the use of force by luxury of studying the constitu- requiring the court to grant
Officer Brosseau, if it was tional issues in the calm of their qualified immunity to the
unconstitutional, was clearly chambers, with the benefit of officer.
established at the time. The lawyers’ briefing, and after
Court noted that both sides in hearing oral arguments...judges Conclusion
the lawsuit offered numerous should not expect police offi- In a broader sense, the U.S.
examples in case law that cers to read United States Supreme Court in Brosseau
supported their respective Reports in their spare time, to reminds society that it must pay
positions. The Court found that study arcane constitutional law great deference to law enforce-
the disparate bodies of case law treatises, or to analyze Fourth ment officers in use-of-force
“undoubtedly show that this Amendment developments with situations and that the law
area is one in which the result a law professor’s precision.”20 clearly reflects this deference.
4
471 U.S. 1 (1985).
490 U.S. 396 (1989).
with uses of force by their offi- public exposure, the risks and 5
533 U.S. 194 (2001).
cers that, while constitutional, realities American law enforce- 6
The Fourth Amendment to the Constitu-
are politically unpalatable. As ment officers face are not. On tion of the United States.
7
For an elaboration on Graham, Garner,
one court noted, “[t]o say that average, a law enforcement and constitutional law related to police use of
police officers have acted with- officer in the United States is force, see generally the work of John C. Hall,
in the bounds that the Const- feloniously slain every 5.4 particularly In Defense of Self and Others...
Issues, Facts & Fallacies: The Realities of Law
itution sets is not necessarily days26 with even greater num- Enforcement’s Use of Deadly Force, coau-
to say that they have acted bers dying from accidents and thored with Urey W. Patrick, (Durham, NC:
wisely.”23 The challenge then still more becoming victims of Carolina Academic Press, 2004); Mr. Hall’s
extensive writings in the FBI Law Enforcement
becomes dealing with unwise, aggravated assault.27 While Bulletin; and Thomas D. Petrowski, “Use-of-
but legal, uses of force. This some critics ignore these reali- Force Policies and Training: A Reasoned
Approach (Parts One and Two),” FBI Law
management issue is more ties, their comments must be Enforcement Bulletin, October and November
common today because of the kept in context. 2002.
ubiquitous video camera, exac- Like the Constitution, 8
9
102 S.Ct. 2727 (1982).
Contested facts are to be viewed in a light
erbated by segments of video training and policies must most favorable to the party asserting the injury.
footage receiving significant reflect the realities of the law Katz at 201.
September 2005 / 31
10
Qualified immunity is available to clearly excessive and the clearly acceptable, subject in patrol car, officer, after heated
defendants in a §1983 and Bivens suit if they therefore entitling the officers to qualified mutual exchange of profanities, stopped patrol
can show the actions in question did not violate immunity and summary judgment (the lawsuits car and pepper sprayed handcuffed subject in
any clearly established law of which they were dismissed before trial): Carswell v. back seat); Clem v. Corbeau, 284 F.3d 543 (4th
should have been aware at the time. The Borough of Homestead, 381 F.3d 235 (3rd Cir. Cir. 2002) (while interacting with a subject who
standard for qualified immunity is “government 2004) (unarmed subject was fatally shot when, was emotionally disturbed and had been pepper
officials performing discretionary functions, while attempting to escape, he turned and sprayed and apparently presented no theat,
generally are shielded from liability for civil charged police officer); Garrett v. Athens- officer shot subject three times); Lee v. Ferraro,
damages insofar as their conduct does not Clarke County, Georgia, 378 F.3d 1274 (11th 284 F.3d 1188 (11th Cir. 2002) (during the
violate clearly established statutory or Cir. 2004) (unarmed subject died of positional course of a compliant arrest, officer shoved
constitutional rights of which a reasonable asphyxia while hog-tied after extended violent handcuffed subject’s face into her car and
person would have known.” Harlow v. noncompliant arrest); Rogers v. Gooding, 84 slammed her head onto the car trunk). For an
Fitzgerald, 457 U.S. 800, at 818 (1982). Fed. Appx. 473 (6th Cir. ((Tenn.)) 2003) (in example of a post-Brosseau decision denying
See also note 18. removing noncompliant protester from a summary judgement, see Sample v. Bailey, __
11
Katz at 206, internal quotations omitted, courthouse, officer struck nonviolent protester F.3d __. (6th Cir. 2005) (nonthreatening,
recited in Brosseau at 600. When the Court in the neck, took him down to the ground, and unarmed, compliant burglar shot during arrest).
23
originally used “hazy border between excessive dragged him out of the building by his legs); Bell v. Irwin, 321 F.3d 637 (7th Cir.
and acceptable force” in this context, it was Mace v. City of Palestine, 333 F.3d 621 (5th 2003) at 641.
24
quoting Smith v. Mattox, 127 F.3d 1416 (11th Cir. 2003) (police shot, then pepper sprayed, Most American law enforcement
Cir. 1997) at 1419. subject after he threatened them with a sword); departments have numerous policies addressing
12
Haugen v. Brosseau, 339 F.3d 857 (2003) Willingham v. Loughan, 261 F.3d 1178 (11th many police functions that are more restrictive
(the original Ninth Circuit opinion, which was Cir. 2001) (subject simultaneously shot by two than applicable law, including use-of-force
reversed by the U.S. Supreme Court) at 865. police officers after she threw a knife at them); policies. For example, many departments forbid
13
Wash. Rev. Code §46.61.024 (1994). Kerman v. City of New York, 261 F.3d 229 (2nd the use of certain techniques (e.g., carotid
14
Id. Cir., 2001) (responding to a 911 call regarding restraint or certain restraining procedures) or
15
Summary judgment is brought pursuant to a subject with mental health issues, police specific weapons (e.g., saps, blackjacks,
Federal Rule of Civil Procedure 56. It allows a handcuffed and immobilized the noncompliant knuckles, and stun guns). Other departments
court to dismiss all, or part of, a lawsuit before subject. Officers were qualifiedly immune for limit the use of deadly force to prevent the
trial. In granting summary judgment, a court initial seizure, but not for subsequent treatment escape of dangerous subjects, even though
indicates that as a matter of law, no issues exist of subject. See note 22). For an example of a clearly constitutionally appropriate under
that should go to a jury. post-Brosseau decision-granting summary Garner. Other departments have policies that
16
Brosseau at 598. judgement, see Blanford v. Sacramento County, mandate elaborate use-of-force continua that
17
Katz at 206. __ F.3d___, (9th Cir. 2005) (police officers serve only to instill hesitation when officers
18
Anderson v. Creighton, 483 U.S. 635 at shoot noncompliant subject armed with a sword face serious threats. See Thomas D. Petrowski,
640 (1987). The Court also stated in Anderson attempting to enter a residence). “Use-of-Force Policies and Training: A
22
that “it is inevitable that law enforcement The following are pre-Brosseau decisions Reasoned Approach (Parts One and Two),”
officials will in some cases reasonably but that refer to the “hazy border” between clearly FBI Law Enforcement Bulletin, October
mistakenly conclude that probable cause is excessive and clearly acceptable uses of force and November 2002.
25
present, and we have indicated that in such but found law enforcement officers not entitled A recent example of this was the
cases those officials—like other officials who to summary judgment (these were not Inglewood Police Department’s handling of
act in ways they reasonably believe to be judgments in favor of the plaintiff; the lawsuits Officer Jeremy Morse who was fired, and his
lawful—should not be held personally liable” were merely allowed to proceed to trial): partner disciplined, for punching a teenager
(internal quotations and citations omitted). Kerman v. City of New York, 261 F.3d 229 (2nd and slamming him against a patrol car. A few
19
Brosseau at 600 (internal quotations and Cir. 2001) (after taking subject into custody, seconds of the lengthy incident were videoed
citations omitted). officers were alleged to have tightened subject’s and received significant national exposure.
20
Haugen v. Brosseau, 339 F.3d 857 (2003) handcuffs to cause him pain, verbally abused Morse and his partner, Bijan Darvish, were
(the original Ninth Circuit opinion, which was him, and placed him unnecessarily in a restraint found not guilty of all criminal charges and in
reversed by the U.S. Supreme Court) at 886. bag in a painful position); Solomon v. Auburn a civil suit against the department awarded
That said, American law enforcement Hills Police Department, 389 F.3d 167 (6th $1.6 million and offered their jobs back.
professionals have an obligation to maintain a Cir. 2004) (compliant subject, who was at a See generally http://www.cnn.com.
26
consistent academic element to their training. movie theater with her children, was departing According to U.S. Department of Justice,
As the Greek historian and martial philosopher theater at request of officers who then violently Federal Bureau of Investigation, Law Enforce-
Thucydides wrote in his record of the took her to the ground and handcuffed her, ment Officers Killed and Assaulted, 2003, 688
Peloponnesian Wars, “That [state] which breaking subject’s arm); Burden v. Carroll, 108 law enforcement officers were feloniously slain
separates its scholars from its warriors will have Fed. Appx. 291 (6th Cir. ((Mich.)) 2004) (after during the 10-year period of 1994 through
its thinking done by cowards, and its fighting officer screamed profanities and expressed 2003.
27
done by fools.” national origin animus toward subject, subject See generally U.S. Department of Justice,
21
The following are pre-Brosseau decisions replied in kind, resulting in officer striking Federal Bureau of Investigation, Law Enforce-
that found uses of force by law enforcement subject); Vinyard v. Wilson, 311 F.3d 1340 ment Officers Killed and Assaulted.
officers to be in the “hazy border” between the (11th Cir. 2002) (while transporting arrested
Official Business
Penalty for Private Use $300
Patch Call
The patch of the Vermillion, South Dakota, Moreland Hills, Ohio, is the birthplace of the
Police Department features Spirit Mound, part of 20th president of the United States, James
the Lewis and Clark Trail. From the top, the ex- Garfield. Its police department’s patch shows areas
plorers made their first observation of numerous of the state seal, along with a representation of the
herds of grazing buffalo. log cabin where President Garfield was born in
1831.