After retiring from Delta Force, I’ve spent another decade training Special Operations Forces and Law Enforcement units throughout the U.S. ”You can’t teach experience”, so I still have the privilege of training awesome Americans that protect and serve. “Police Brutality” is an overused term that should only be for a very small percent of individuals that shouldn’t be in uniform. While 99% of LE are doing a great job, there are those few who sneak through by a weak selection process or having quotas due to Political Correctness. It’s easy for the media to judge after an event, but some folks simply handle stress better than others and it’s up to trainers and leadership within those units to identify those not right for the job.
“Where is the Threat?” A suspect running away is not a threat! Not complying with your commands is not an immediate threat that should lead to an execution on the street in Tulsa, OK…or like the Arizona Rancher involved with the Bundy/Wildlife Refuge standoff last winter. The old man had his hands up then he lowered them, only to be executed in waist deep snow…Even if the old dude was reaching for a gun, the agent 30 yards away with a carbine didn’t seem to be in immediate danger. I would have a hard time calling that one a “righteous” kill because I know the average old guy that spent his life ranching couldn’t hit a target at 30 yards with a pistol. And in this business, righteousness means you can sleep at night.
I’ve received my last few traffic violations through the mail, so why can’t we lessen the force? Why not have tougher standards and selection criteria? By trimming the fat, you can pay more and offer incentives that will attract a larger pool to select from and wear the blue uniform to serve the community with honor, respect and professionalism. I remember patrolling the streets of Ramadi and Fallujah where the locals hated me and wanted to kill me despite my efforts to bring peace and security to these dangerous insurgent filled neighborhoods.
Tragically in America today, men and women in blue are experiencing the same trying to bring law and order to rough neighborhoods in the inner-city from Ferguson, MO to Baltimore, Chicago’s South Side to Charlotte, NC. With a world full of growing radical Islam, racial tension and race baiting, why wouldn’t you pick those who protect and serve from the top of the pyramid? We need “Law and Order” now more than ever, to include a leadership who won’t water down standards, hold men and women in uniform accountable and back their decisions to the hilt when they make the right call.
“The phrase Black Lives Matter suggest racial superiority. It excludes the importance of anybody else’s life.” “THAT IS RACISM DEFINED.”
-Sherriff David Clarke
Respectfully, Daryl Holland
Daryl Holland is a retired U.S. Army Sergeant Major with over 20 years of active duty experience, 17 of those years in Special Operations. Five years with the 1st Special Forces Group (SFG) and 12 years in the 1st SFOD-Delta serving as an Assaulter, Sniper, Team Leader, and OTC Instructor.
He has conducted several hundred combat missions in Afghanistan, Iraq, Bosnia, Philippines, and the Mexican Border. He has conducted combat missions in Afghanistan’s Hindu Kush Mountains as a Sniper and experienced Mountaineer to the streets of Baghdad as an Assault Team Leader.
He has a strong instructor background started as an OTC instructor and since retiring training law abiding civilians, Law Enforcement, U.S. Military, and foreign U.S. allied Special Operations personnel from around the world.
Gunfighter Moment is a weekly feature brought to you by Bravo Company USA. Bravo Company is home of the Gunfighters, and each week they bring us a different trainer to offer some words of wisdom.
Tags: Bravo Company USA, Daryl Holland
As much respect as I have for Mr. Holland’s service, experience, and knowledge, there is a whole lotta uninformed opinion masquerading as fact in this post.
Agree…best to leave the speculations behind and not second-guess the people actually on the scene in the BLM incident. The man clearly was going for a gun and I can’t fault the LEOs for eliminating the threat rather than just hoping the “old man” would not be able to hit them (and they were not thirty yards away from him).
I’ll score this article a swing and a miss.
Very diplomatic response, and right on. Thanks Mr. Jack. I don’t think I could have left it there.
Can’t agree more. People like to say “stay in your lane” a lot. I respect Mr. Holland’s service, but it in no way qualifies him to discuss Police Use of Force. Not to mention “never underestimate your enemy”. Who knows if that rancher could have hit the LEO or not? He might have missed and hit someone else. Either way it is irrelevant. He was trying to access a weapon. Period.
Well said SLG.
Ditto.
An armed and angry member of a hostile militia — the same man who said publicly and in no uncertain terms he would die in a blaze of glory rather than be taken alive (who even penned his own masturbation fantasy about shooting Feds) — who runs one roadblock, crashes into another (almost killing an agent in the process), ignores commands and moves towards an exposed LE, then reaches towards his firearm … does not get one free shot because he might have bad aim.
Wrongo, Golob – your coworkers fired on the truck and Finicum before any “access” was initiated – and then they tried to cover it up by destroying evidence, remember?
How HRT of them.
https://www.youtube.com/watch?v=uH4PInHFfOc
http://www.oregonlive.com/oregon-standoff/2016/03/bullet_casings_disappear_from.html
Guess your unethical shilling isn’t limited to your wife’s sponsors.
Go take your Oathkeeper III%r idiocy elsewhere.
First off, those shots were justified – he was a violent criminal fleeing arrest by use of a deadly weapon (the pickup – it is not a “truck”). He did end up trying to kill one of the LEOs at the scene as he tried to drive around/through the scene. As I recall, he was actually killed by OSP troopers as he resisted arrest and made a drawing motion. “Assuming” that a person you don’t personally know to be proficient is not a threat due to a mere thirty yards is stupid and failing to shoot would have been too. The SGM is simply unqualified to hold and espouse the position he advocates. Those who critique his lane control are correct.
When did he become a “violent criminal”? He absolutely did not threaten violence, promote violence, or otherwise conduct violence against the officers and the general public. He fled the scene after an arrest attempt. Officers (FBI HRT or OSP or local LEO, who cares) used deadly force by firing their weapons against a peaceful, albeit totally uncooperative, group of people when the vehicle approached their roadblock at a distance of <100 yards. The officer walked into the path of the vehicle at the last second. You cannot reasonably call that a "use of a deadly weapon." (goo.gl/crFqBx at 5:35)
I'm not defending these people. They may be probably well intentioned but are fundamentally flawed in their understanding of federal……existence. They committed numerous crimes, and they deserved to be punished accordingly. I am only saying the government is not without fault on this one.
He did in fact threaten to use violence, and made it clear he would rather die violently than submit to lawful arrest. He knowingly associated with other violent criminals (the Bundys and their ilk) in their armed “takeover” of federal property, and was actively advocating unlawful violence. Anyone who does not take that as an indicator of increased risk to LE is a fool.
The only lawful choice Finicum had was to surrender. By using the pickup to flee from the original stop point, he escalated the situation. Assuming you are correct that he was fired upon at 100 yards (and I don’t think that’s right, but still not a problem), that’s just over 5 seconds to away at 40 MPH. Under the precedent of Mullenix v. Luna, 136 S. Ct. 305 (2015), there is no way to win a civil rights case. (Similar enough, although different facts – likewise Scott v. Harris, 550 U.S. 372 (2007).
As for the LEO walking in front of him, that’s not what I saw, and it is not relevant. The only lawful choice Finicum had was to stop for the roadblock and the LEO – attempting to run it was another escalation. That aside, he was not shot until he was out of the pickup, and instead of surrendering, started to drop his arms and made a drawing motion. Waiting past that point would have been suicidal and justified discipline, like the W.VA officer who was recently fired because his reticence put other cops at risk and another officer had to kill the offender.
I was going to ignore the troll, but I guess I’m not a big enough man.
I attacked some of the ideas that Mr. Holland expressed, not the man himself. I’m sure he’s a fine American. Yet you chose to attack me personally, while hiding behind some of the very people you attempt to smear. With nothing to show but internet investigation. Your life must be a real humdinger, sorry.
Nonetheless, you are a coward. When we meet in person, I will tell you this to your face, and then you can decide what to do next. Coward.
It’s really not worth getting worked up over. People forget they are talking to another human being at the other end of the Internet.
You are correct, and I apologize if I overstepped on SSD. However, honor is still a real thing. Anyone who knows me knows I would never “shill” for anyone or any reason. I use and recommend stuff that I know works, and though some here will call it thin skinned, my integrity is very important to me. People think they can say anything they want today, and our society suffers for it.
Hope that bait tasted good 😉
Simon Says…
Fish On!
In regards to this:
” fidelitybraveryintegrity says:
October 2, 2016 at 13:46
Wrongo, Golob – your coworkers fired on the truck and Finicum before any “access” was initiated – and then they tried to cover it up by destroying evidence, remember?
How HRT of them.
https://www.youtube.com/watch?v=uH4PInHFfOc
http://www.oregonlive.com/oregon-standoff/2016/03/bullet_casings_disappear_from.html
Guess your unethical shilling isn’t limited to your wife’s sponsors. ”
Regardless of your opinion of the article or the subject, arguing with people responding by making comments about their family/wife is low class, and uncalled for.
Remember that CONDUCT IS BEST PROOF OF CHARACTER.
LR
Yup. I’ve had some pretty good arguments about former “Operators” with no LE experience taking a position on LE issues. Lanes, stay in yours.
Well said Gene…couldn’t agree more.
Yep… Good to see I’m not the only one whose immediate thought was “stay in your lane”. As a rural LEO, the old ranchers I know are pretty handy with just about any blaster. Safe? Not so much, but they can shoot better than most cops.
I agree completely. When he did mention “fact”, it was ill-informed (e.g. the circumstances of the LaVoy Finicum shooting) or dangerous (e.g. being thirty yards away from someone with a pistol is not a threat).
Tulsa was an “execution” for not following commands? Then Alton Sterling was executed for merely selling CD’s. His training and experience is beyond impressive, but not much applies to the average street cop. If he wants to know why a person disregarding commands and attempting to reach into/re-enter a vehicle is a problem, he should re watch the Dinkheller video. He’s spreading as much propaganda as the group he criticizes.
http://youtu.be/UluM9kPkVDo
Not seeing someone’s hands cannot be considered a threat. That is a pathetic use of force argument. What are you going to say: “He was rummaging through his car where I couldn’t see his hands, and I perceived that as an imminent threat to my life that required the use of deadly force”?
Yeah, when he has been addressed at gun point for quite some time before that, and been completely non-compliant? Anyone who assumes a benign purpose to the action of attempting to get stuff from the car is a fool.
There needs to be a “thumbs up” or “like” button for the comments above for those who are not as articulate like myself. Very respectfully well said.
Interesting deviation. I have to admit I re-read the top paragraph several times in hopes that I missed some quotation marks that would be attributing those words to someone else in “the movement”.
“It’s easy for the media to judge after an event”……….”execution on the street”.
Pot, meet kettle.
I believe what Daryl is getting at is hiring and training to a standard to know when you have control of a situation, and to have the confidence that you’re the better. Knowing your capabilities and knowing when you have the advantage. Mindset is the key and also one of the most difficult things imho to instill in someone or yourself. You can preach all day about conquering fear, you can read “on killing” or “on combat” or any of the other mindset opinion pieces, you can shoot until your blue in the face. But having control of your mind body and fears is a massive feat that is expectted and often scrutinized by those who’ve never really been accustomed to violence. When I see some of these videos of questionable shoots I don’t normally see hatred or murder but rather an individual overcome with fear. What Daryl is saying is controversial, but I understand what he’s saying and where it’s coming from. Just a nobodies .02.
He was pretty clear, and pretty wrong. I don’t think you can spin this one back to right.
It is a tough time to be a cop. There are no easy answers and lowering standards in any service is definitely not it.
And accepting an already low standards by which UOF is applied is equally wrong.
The standards are not low. They are based on the U.S. Supreme Court’s assessment of what is “reasonable” from the perspective of a police officer under the rapid evolution of circumstances of a potentially violent encounter, and on putting the safety of officers and uninvolved citizens on a higher level than that of offenders, which is the correct approach. A society that places the well-being of violent criminals on a par with that of cops and other uninvolved citizens is doomed. Offenders who don’t want get shot need only submit to the arrest without creating the appearance of violent resistance. It is that simple.
Here’s a standard that needs changed…the idea that ignorant, inexperienced, opinionated twisting of reality by an academic equates to critical thinking. Here’s the clue you are missing: folks who are versed in theory, law, and practice are patiently and pointedly refuting your arguments. You don’t know what you don’t know. Your personal views, my personal views, are not the legal standard, nor should we want them to be.
1. Sometimes I wish some of these authors had a proofreader. Either for grammar/misspellings or in cases like this, contextual clarity.
2. If you want to use your military street creds to be a political talking head go to Fox News. Bring us more Defoor and the like.
I agree on the need for more editing. If one of my employees were to hand me something this poorly written, I would force him to attend a remedial writing class as punishment for the first offense.
I have noticed that the quality of information presented in this format changes dramatically based on who is writing the article.
–Mike Pannone, Aaron Barruga, Kyle Defoor, Jeff Gonzales, and Frank Proctor have solid content and writing.
–Pat McNamara has solid information, but he could work on his writing.
–Larry Vickers is usually regurgitating information he has already addressed numerous times on television, YouTube, or the forums.
Not being an LEO I get what’s being opinionated here from Mr. Holland in that because of everything going way of “political correctness” the police force is no longer “cream of the crop” so to speak.
There are 10 applicants for police force with 3 openings. The higher ups reason, “We need 1 female, 1 black and an Asian. So let’s agree on that and just put them all thru the paces, we already know who gets the positions.” So I believe it’s that type of procedure/agenda that makes an already difficult profession even more dangerous, for both officer and Joe citizen. I see it in the military also as soldiers tell me of all the PC crap going on.
Instead of bringing individuals up to a certain standard we must lower those standards so that no one feels left out? That’s a recipe for certain disaster.
Uh oh Daryl, I think you “triggered” some people. It is time for them to find solace in their side of the dichotomy…
Daryl is just a guy. He isn’t speaking the gospel, just stating his observations and opinions. It is Ok to disagree (especially if you are in fact the apparent gatekeepers of Use of Force discussions).
Everyone wants to run to the comfort of their side of the fence (on any issue). So there in turn in no opportunity for discussion in the middle. There is a shit show on either side of the line that no one wants to address. Unfortunately Law Enforcement has violated the trust of the people by not burning their own when they fuck up.
And yes, LEO should be held to a higher standard. You have the power to TAKE PEOPLE’S LIBERTY up to the point of killing them. And with that, isn’t it unfortunate that we have moved away from “Peace Officers” to “LAW Enforcement”?
I was a Police officer, I hope that allows me permission to formulate my own ideas.
Ask your own questions; seek your own answers…
Regarding to the AZ rancher …
https://m.youtube.com/watch?v=pLIUDBrU9Cs
But he is making statements about something, LE use of force, he has no experience in, and he is using his military experience in an attempt to lend credibility to himself. So, many of us don’t consider it to be just his opinion, but rather, he is attempting to spin it as an SME, when he is not.
I respect his service and was with him with most of it until he brought up the “30 yard old man.” I am a 17 year LE veteran, we can never know intent (all though we can try and guess, sometimes with deadly consequences). In LE UOF, intent is still cited and outdated, it’s capability. The old man had the capability to kill even with a pistol, no one can read his mind what his “intent” was to give up or shoot, make a long shot, etc? If we all could read minds, we wouldn’t be having this conversation. I for one am not going to wait and see what my opponent’s skill level is to hit me or my fellow officers/citizens with a firearm in a deadly force incident
SGM Holland opined: “A suspect running away is not a threat! Not complying with your commands is not an immediate threat that should lead to an execution on the street in Tulsa, OK …” The US Supreme Court has explained when it is permissable and lawful in Tennessee v. Garner 471 U.S. 1 (1985).
Now, just because cops can doesn’t mean they should in each event. I won’t argue that point. However, many of the so-called controversial shotings were neither controversial nor illegal when both the facts and the law are looked at appropriately.
I would people leaving the military to take one or two competently presented classes on use of force law before they begin opining on it. Heck, watching Dave Bolgiano’s one hour presentation at the War College would have presentedthis.
Damn typos, should read: I would encourage people leaving the military to take one or two competently presented classes on use of force law before they begin opining on it. Heck, watching Dave Bolgiano’s one hour presentation at the War College would have prevented this (it’s on YouTube).
Sigh…this felt more like a political post than a TTP post.
I agree. Hopefully, we can get away from product placement and recycled information from YouTube.
Have been loving SS.net since subscribing, but this was well summed by those who said “stay in your lane”. Training tactics and hanging out with LE doesn’t (clearly in this case) make him an expert in case law and best patterns and practices. By the second paragraph it ran off the road into the ditch.
Sir, thank you for your service.
However, kindly fuck off with this “hot take” about something you apparently do not have expertise in.
Someone running away is not a threat? I didn’t see you quantify that, and I’d argue (and be supported by case law) that in many certain situations, a person fleeing a law enforcement officer is still a deadly threat to public safety, and, in some circumstances, could justify the use of deadly force.
This part right here ensures I will never hold the former respect for your opinion that I once had from reading your writeups on this website. Absolute and utter garbage:
“Even if the old dude was reaching for a gun, the agent 30 yards away with a carbine didn’t seem to be in immediate danger. I would have a hard time calling that one a “righteous” kill because I know the average old guy that spent his life ranching couldn’t hit a target at 30 yards with a pistol.”
“A suspect running away is not a threat.” Really? How about an active shooter who is running away from LE in order to seek out new (defenseless) victims. Or running to seek a better defensive position. Should a LEO wait until the shooter starts shooting again before engaging?
“Really? How about an active shooter who is running away from LE in order to seek out new (defenseless) victims.”
Don’t be an idiot. That is clearly not what he meant. He was talking about running away to avoid being captured when you present no threat to the lives of the general public (think Walter Scott).
But that is not what he said.
Context, my friend.
You mean the kind of context required to understand why what might appear to an uninformed person to be an unreasonable use of force, but once put in the proper context and viewed through the reasonable officer standard, is actually a reasonable and lawful use of force?
Wow. You are really stretching for that one pal.
Sorta all over the place smaj. :/
Even a Delta guy can be out of his lane.
Truth.
Cool, maybe Delta guys will stop criticizing cops and cops can stop pretending they are in Delta.
I know, right? Those dang “militarized cops.” Alex Jones and Radley Balko fan, are we?
Example? And I hope you have more to offer than modern body armor and a clothing pattern .
I don’t come to SSD for this kind of non sense. Sad day.
No. You come here for free content. That is what you got.
I’ve thought about this off and on all day. To the BLM shooting of the rancher. Righteous all day long. While I agree about the state of police hiring and even more so about the direction of training and where we spend our precious training time, that operation was conducted by THE premier LE unit in the world. Second guessing that UOF as a training or selection problem is crap. The other shoots have not released enough info yet to make a judgement. They rioted in Charlotte when all the facts necessary to show there was a gun. The public is not entitled to every bit of evidence at the outset. Without it they rush to judgement just like you have done here. Next on to this righteousness crap. Being local to Mr. Hollands previous employer, and having quite a few friends still employed at that particular place, I would say from our exchanges of stories that our shoots and theirs might not be on the same level of righteousness all the time. We have a hell of a lot more rules. That being said both groups “jobs” are done within established ROE and UOF respectively. We each work within the rules but they are a bit less restrictive down range. I also rolled the same streets as Mr Holland and at the same times. Get off your holy high horse Mr. Holland. What I could and did do within the rules would have put me in jail here at my other job. Apples and oranges. You should stick to apples please.
“99% of LE are doing a great job.”
“Why not have tougher standards and selection criteria?”
Hmmmm.
Paradoxical.
I’d say he was being nice about it. Way more than 1% of LE are problem children and should be fired. You guys know it but get whiny any time someone points out your weaknesses. You have demonstrated time and again your inability to make positive change. Instead you blame everybody but yourselves. Don’t just throw your scumbags under the bus, back over them.
Yeah…. Holland. You haven’t been, nor EVER will be, a cop.
Shut your pie hole. You don’t know WTF you’re talking about.
You’re an example of a SME with ZERO expertise.
You can go now.
And neither do you.
I’d say he’s got expertise. It’s just in the righteous killing of bad guys and not in the justification of murder.
I hate it when 3% ers show up.
You and me both.
What happened, get a speeding ticket? Couldn’t get in the academy? It’s okay buddy, really.
Yea….no women and children casualties in any of our military ops
With all due respect, SGM, and admitting I could never have done your job in the military, you are simply wrong. I understand that you were among the best of the very best of the U.S. Military, but the training and socialization in the military is foreign to cops. The oddly restrictive ROE and pathological fear of firearms to which you are accustomed are as foreign to me as nuclear physics would be. They are nothing like the world of law enforcement.
Much of the angry reaction to incidents such as Ferguson, the recent shooting in Charlotte, and the Alton Sterling incident in Baton Rouge is due to a staggering level of ignorance of both the law and the recognition of threats from the perspective of the reasonable police officer (which is the standard of the law). From any reasoned analysis, they are not only legally and morally justified (hence lawful), but inane. Very few attorneys, including criminal practitioners, are qualified to assess law enforcement use of force as it is a very specific, arcane subset of knowledge.
While the Tulsa shooting is more nuanced, as far as I can see, the charging decision was as improper as the decision of Ms. Mosby in Baltimore. (I do and have done criminal prosecution for most of my adult life, in addition to having been a fully academy trained and certified reserve cop for much of the same period.) Calling it an execution is simply not consistent with the actions of the offender and the rule of law. As for LaVoy Finicum, that shooting only seems to have gotten angry reactions from his fellow terrorists, with the same disingenuous crap of “hands up, don’t shoot” as was said by other criminals about Micheal Brown.
Non-compliance may or may not justify the immediate use of force (lethal or not) – “it depends”. However, not only is non-compliance not an option under the law (both U.S. Supreme Court cases and state statutes), it presents an increased likelihood and perception of risk to any police officer. This is even more true when the cop has someone at gun point. Anyone who is willing to be non-compliant at gunpoint is very likely to shift to assaultive very rapidly. Any cop who does not know that needs to be retrained, and any cop who does take that cue seriously is a damned fool. Police work does not have an “acceptable loss ratio”. We take risks, even dumb ones sometimes, if needed to rescue the innocent, like going immediately into an active shooter situation. Offender safety is and must be the lowest priority; officer safety the highest.
Let’s look at the law. De-escalation is the responsibility of the offender. Period. Full stop. Only the criminal is responsible for the use of force. “Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing.” Plakas v. Drinski, 19 F. 3d 1143, 1150 (1994).
There is no basis in law or ethics for taking lesser action instead of protecting other citizens or catching a criminal; for a policy more restrictive than that required by the law, or to “deescalate” in the face of resistance. There simply is no requirement to use lesser alternatives prior to the use of deadly force if deadly force is objectively reasonable. Plakas, 19 F3d. at 1148. It is also unsafe. Advocacy for any such policy, especially when based upon ignorance of the reality that only the suspect is responsible for the escalation of an incident, proves a lack of the intellectual and ethical foundation needed for police service at any rank and amply justifies firing. Such restrictions damage the “delicate balance the Constitution seeks to strike between the dangerous and the endangered”, and thus thwart the purpose of the law. Urey W. Patrick and John C. Hall, “In Defense of Self and Others …”, pp. 284 – 285, (2nd edition, 2010). The Supreme Court takes a similar view. “ … we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create …” Scott v. Harris, 550 U.S. 372, 385 (2007). Unenforced laws become mere suggestions.
“The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-703 (1981). This is true in any non-consensual encounter. Brendlin v. California, 551 U.S. 249, 258 (2007). That is to say (again), the need for the use of force is directly under the control of the offender.
Graham v. Connor, 490 U.S.386 (1989) explains the analysis of the use of force in making an arrest or “Terry stop”. The test to be used is the reasonableness test of the Fourth Amendment.
“Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures” of the person.” 490 U.S. at 394.
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 392 U. S. 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U. S. 797 (1971) …
490 U.S. at 396.
The test is not based on hindsight, the ugliness of any significant use of force, or the ignorance of reporters, friends of the offenders, or others unqualified to assess the matter. The Court continues to reject subjective assessment of seizures. Brendlin, 551 U.S. at 260.
“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” 490 U.S. at 396-397.
Any given situation is likely to be “tense, uncertain, and rapidly evolving”. The specific facts that are observed and can be described objectively, and the logical conclusions or meanings to be gleaned from those facts by a reasonable officer on the scene can be very subtle or nuanced, and we need to accept that there is no one size fits all answer to any scenario. The further difficulty presented by second guessing is similar to that with the “legal analysis” by unqualified individuals. Very few people have any training about the perception and management of threats to their safety presented by criminal actors; even fewer know the applicable legal standards and how they are linked.
This is a very short introduction to the standards that apply. American LE uses force, especially lethal force, very rarely, and not nearly as often as justified when considered in the light of how many cops are assaulted with potentially lethal force each year. 20 times as many offenders killed by cops would probably be Constitutional reasonable. Your position here is unsound, and contributes nothing to the discourse at all. In fact, it is counterproductive. Let’s make a deal. I won’t try to teach calling close air support; you don’t try to teach the law and ethics of use of force for LE.
Very well said.
One of the most coherent, understandable and best written pieces on the subject. Thank you.
Every time I hear a cop talk about case law it revolves around justifying killing someone or a way to violate their constitutional rights. Go read the constitution and stop being a tool of oppression.
“Tool of the oppression.” Careful now, your anti-government paranoia is showing.
Go read about the constitution but fuck a courts interpretation if it right?
Everyone one here knows that the law is written to be pro-LEO and that the “very few attorneys…qualified to assess law enforcement use of force” are defense attorneys who are almost always professionally unchecked (e.g. lack of peer-reviewed publications).
Huh?
You truly believe politically-minded, public attorneys working at various levels of the judicial system are experts? Good luck with that. As someone with some experience with the courts, I assure you that most attorneys working for the government (state-level at least) are doing so to gain experience, make student loan payments, and create a network to enable going into the private sector. They are not experts, they are learning on the job, and they often get it wrong enough to lose winnable cases. They also lack time and resources, and often lack motivation beyond altruism, if they still have it after having their bubbles burst. I dispute that “the law is written to be pro-LEO” because you don;t support that claim with examples or facts, or even stated experience, and it is so far from the truth as to be comical. Laws are seldom written well, which is why courts spend so much time interpreting them and bridging logic gaps the laws lack. LEOs below chief level have very little influence on lawmakers and are seldom asked for input. Laws are by and large written to benefit someone…a lobbyist, a donor, a demographic, a business, a community, etc…but seldom to be pro-LEO. I challenge you to name a single pro-LEO law that is not in balance with societal needs and priorities. A law, not a court decision.
Further, what professional checking does an average junior prosecutor actually have, versus a defense attorney? Or even the highest elected prosecutor in a jurisdiction? Who holds them directly accountable for agenda-pushing or plain old fuck-ups? Are they held to internal standards, national best practices, state and federal law, reviewed by their own bosses, reviewed by the parent government body, reviewed by a gran jury, reviewed by a prosecutor, reviewed by the DOJ, and critiqued by the public, media, and every internet know-it-all? Because that’s what each police use-of-force faces.
Wow, that pretty much sums that up nicely. Excellent response…very well thought out and rational.
I’ve had disagreements with some of the GM peices before but this one has by far resulted in the most confused “wtf did I just read” face I’ve had screwed on in awhile. Reading the responses above, it would seem I’m not alone. Thx for your service sir. I respect every GM authors opinion but can’t agree with what several points in the above piece.
For everyone who disagrees with Mr. Holland’s definition of what is constitutes a threat: remember that juries are made up of the general public, not gun enthusiasts. With the proliferation of social media and the twenty-four hour news cycle, the public is conditioned to believe that fleeing suspects and (worse yet) unarmed suspects are not threats.
A lot of times we have confirmation bias when we jump on the forums and talk to like-minded people. To prove my point, I’ll ask you all the same thing I asked my college students based on the Keith Scott shooting in Charlotte, NC. (I am a legal historian).
“You are a police officer. Your team is attempting to arrest Mr. Scott after you see him commit a felony. Your team identifies themselves, and Mr Scott will not surrender. This goes on for a few minutes. Eventually, Mr. Scott steps out of his vehicle with a gun in his hands. At what point does he become a threat to the point where you would shoot him:
A) When he stepped out of the vehicle with the gun in his hand.
B) When he doesn’t comply with the commands to drop his gun.
C) When/if he starts to raise the gun towards me or others.
D) When/if he actually points the gun at me or others.
E) When/if he shoots the gun.”
Two hundred students participated in this question. I asked for a show of hands. About twenty agreed with C. The rest agreed with D and no one agreed with A,B, or E. (One was a pacifist and refused to answer.)
There is a difference between “am I legally allowed to use deadly force” and “will I (or someone else) suffer a grave bodily injury or possibly death if I don’t use deadly force.” That is the difference between a “good shoot” and a “righteous shoot.” (Holland did a poor job of writing about this.) Law enforcement needs to reevaluate it’s current use of force policies and adopt more restrictive policies. This is simply in keeping with the times and reasserting the value of human life.
Yes, even the life of an accused criminal has value. Law enforcement has understandably forgotten this principle through years of dealing with riff raff.
Academics…gotta love them.
It would appear to me that neither you nor your students understand current UOF law and policies in the U.S. Can I text you the next time I have a suspect at gunpoint and get your opinion on what I should do? It would certainly make me feel better, knowing I had that kind of resource to draw upon.
Curious how you didn’t answer the question. I’ll ask another question to convey the same point:
“Assume you live in a castle doctrine state (generally: you can kill someone who unlawfully and forcibly entered your house). You hear a noise coming from down the hall. Your teenage daughter says someone busted in her window can crawled in. You enter the room and see the person passed out on the floor reeking of alcohol. Would you shoot him?”
In California, such a shooting is legally justified. (Read the text of California’s statute: goo.gl/XMDhTc.) However, the answer should morally be “no.”
Your skills in critical reading need to be enhanced (although they are par for the course from law enforcement). I know what the current policies and laws on use of force are. I said they need to be changed; I didn’t inaccurately or falsely discuss them. The entire premise of my comment and Mr. Holland’s article is what should happen isn’t what is happening in some cases. (Example: Walter Scott shooting by former officer Michael Slager, https://youtu.be/Q6-jFQPu-yo?t=18s.) The philosophical mix of society is changing, and law enforcement needs to take note of this.
The answer to both your problems is no. I have no reason to shoot an unconscious man on the floor. There is also no reason to change current UOF, as it works quite well and is appropriate. Talking to mostly inexperienced kids all day must make you feel very correct, but when you spend some time fighting with men in the real world, maybe you will learn something. Probably not.
Thumbs up.
In response to the first scenario above. Every one on my unit would be somewhere between a) and b). We have all heard of action versus reaction – haven’t we….
And talking to mostly experienced cops all day makes you feel smart. That is indicative of the confirmation bias I already mentioned.
You seem to be missing the point, SLG. Juries are made up of your average Joe, not your reasonable LEO. In the immortal words of George Carlin: “Think of how stupid the average person is, and realize half of them are stupider than that.” That is your jury. The presuppositions of the general public are changing to be more restrictive which will bite you in the ass if you ever face a jury trial. Since you don’t believe me, ask your union’s lawyer.
Current UOF policies work for you; they don’t work for the people you serve. They would rather have dead cops who erred on the side of caution than have dead citizens because cops were too quick on the gun. I’m not saying I agree. I’m not saying that they are right or wrong. I’m merely pointing out fact.
JoeG let’s correct some of your premises upon which your argument rests.
“Philosophical positions” don’t determine law.
18-24 year old students don’t predominately make up society or society’s values. They don’t even have a majority influence on the law. If so pot and more would be legal everywhere.
Jurors are selected and receive a block of instruction on what the law is that they are ruling on. This can and often informs, and changes how jurists vote demonstrated by the relatively few law enforcement actually convicted in criminal cases. Those that say their preconceived notions will not be influenced by fact or the law don’t get to sit in the jury box.
Equating the classroom to the courtroom is as fraught with the risk of being wrong as equating the battlefield with our domestic streets.
I agree that 18-24 year olds are not representative of society. I never said that they were.
The point stands that the general public (not lawyers and police) make up juries. They are allowed to use their presuppositions to make judgement calls (if you were the officer, would you be in fear of your life if you saw XYZ). This is where you are at fault. The only thing that the jury is instructed to do is to consider only the evidence presented at trial and on what the law states. I remember this from my last three times sitting on a jury, and one of those times was for a capital murder case where we convicted the cop-killer.
Also, if jurors are required to follow the law, why is there such a thing as jury nullification?
Such a case should never see a jury. And while there are disputed points of view about jury nullification, that act results in an acquittal, so in your scenario a cop who by some fluke ends up in a trial would be better off.
You turned into a full-on asshole right here – Your skills in critical reading need to be enhanced (although they are par for the course from law enforcement).
You are inferring that which was not implied. No disrespect was intended whatsoever. I have had many LEOs come through my courses over the years. I was just pointing out a fact based on what I have seen.
You’re wrong about California Law. Bare fear alone is not sufficient to use deadly force. You must have reasonable fear, as judged by a reasonable person given the totality of the circumstances, given what you knew at the time. A reasonable person would gather their family, call 911 and escape, leaving the police to handle the drunk. PC 198.5 is a rebuttable presumption that would get challenged at trial. You could shoot the drunk on the ground, but you’d still probably get arrested and tried for voluntary manslaughter.
I thank God you are not the one making UOF decisions. Stick to academics and mis-informing your students.
Notice you didn’t say murder but instead voluntary manslaughter. Why?
The point of my comment was I (and others like me) get to decide a LEO’s fate at trial, not other officers. Police need to be aware of that fact.
Because of the nuanced difference in the elements of the two. He seems familiar with CA law from experience; I am not so I would have to do some research. My best guess from here is that it has to do with the reasonableness of the belief in the need to use force. I don’t have to do much of anything to a passed out drunk. If they are actively booting the door, that’s a whole different scenario. You are also looking a private citizen’s use of force as an example of LE UoF; apples and oranges to some extent.
You seem to be pontificating from a position of ignorance of the law, and also from a position of ignorance regarding the perception and assessment of pre-assaultive indicators. There is a reason that use of force experts testify in trials, both civil and criminal – to overcome that kind of ignorance.
But before you get a chance at us in trial a prosecutor applies case law to determine if it even goes there. That’s what you’re missing.
As Mr. Mitchell pointed out in another comment, that is subject to prosecutorial discretion. I wouldn’t trust a single prosecutor as they are (in every state I’ve ever heard of) politicians who are elected or appointed. There are too many bad prosecutorial decisions to trust any of them.
I see some with which I disagree, but without question the worst are from the AUSAs and the rest of the DOJ.
As a rule, I work with some of the best academic lawyers in the State, men and women with high integrity who care about doing the right thing for the right reasons. The intellectual standards of law schools have clearly dropped, something I see in some of the ghastly writing to which I must respond on a regular basis. There also appears to be a strong political agenda being delivered in some if not most schools, and I am not certain my school (Big 10, top 20, among the elite) is above that crap either. Looks at the clear misconduct of people like Mosby. It frightens me that these people got in to, and then graduated from, any law school but have such awful intellectual and ethical standards/conduct.
It is not a matter of being gun enthusiast. It is a matter of having the knowledge of what constitutes a threat of lethal force to the officers or others.
You are devaluing human life. The offender’s safety is solely the responsibility of the offender – if s/he wishes to be safe, then s/he must submit immediately to lawful authority. The fact that your students don’t know that “A” is the answer based on action/reaction is not an indication of LE being wrong. It is an indication that your students don’t know what they don’t know.
Take a look at the shooting of a cop in Kingman AZ on 9/29. Two SWAT cops with rifles and heavier protective gear, at a ready position, were fired upon by a guy holding a gun at his side. The offender got the shot off starting from that position. In spite of having their rifles up, the cops were not able to shoot in time to protect themselves adequately. The offender did die, but one of the officers is still in the hospital.
How did I devalue human life? You are taking the comment where I did not. I merely said that jurors have presuppositions (drawn from social media and talking heads in traditional media) when they go into the deliberation room and police need to be aware of that fact.
Moreover, if police shootings keep happening at a “rampant, inhumane pace” (as one news analyst said), then police are really going to be the big losers in the end when the citizens push for more restrictive laws and policies. That is why the need to regulate themselves better is very important.
You are devaluing the lives of cops and uninvolved citizens by pretending that the lives and well-being of violent criminals is even close to being on a par with that of the first two groups. The fact that the Terrorists, Anarchists, and Narcissists have made a collection of claims that are not true or supportable, and that the mass media then ignorantly (or deliberately) repeats them without any reasoned critique of the claims, does not make them right. It does mean that people come to crazy conclusions from the blather from Balko, Wexler (PERF) and the like, and overcoming their pre-suppositions based on the drivel is harder.
You also ignoring, probably because you have no knowledge of the field, all of the hard learned lessons about the types of threats that cops have had to learn to address. The lessons of “Officer Down, Code 3”, published 40+ years ago, are still not well enough learned. The human factors and performance lessons that have improved officer safety are not well known outside of LE, and when we who have at least some clue try to educate, we get called liars, shills for murderers, and the like.
The rate of officers killing offenders in the U.S. is very low; maybe 5% of what it could be if cops acted more appropriately to protect themselves and others. Whatever media maggot said that is an idiot, with no idea of what they are saying. “Rampant” is the number of deaths from medical malpractice in the U.S., over 250K/year according to a recent study.
You didn’t address the key part of my question: “How did ‘I devalue human life?” Truth is I didn’t. I did not state my answer to my question (“A” when he stepped out of the vehicle armed). I did not state that the police are wrong for anything they have ever done. I only pointed out a change in societal thinking that police should know about and attempt to counteract via increased self-regulation before it gets taken out of their hands by a public vote.
When you put offender’s lives on a par with mine (or yours), you devalue ours.
A. I didn’t do that. The only thing I have said that can remotely related to this article is that: [1] police need to be aware of society’s changing view on police killings and [2] police are a little loose with the definition of “threat” because they are told that everything can be perceived as such.
B. You should add “suspected” before “offender” because that is what they are since they never make it to court.
C. All life matters and has equal value despite the individual giving up his right to it.
Never heard of the reasonable student or even reasonable professor standard, but what is Graham v Conner right, academia knows better.
A “reasonable person” standard is up for each individual juror to decide. It has academics, the educated, the uneducated, blue collar, white collar, victims of crime, victims of police brutality, family of criminals, etc. It [almost] never has police, lawyers, or use of force experts as it is presumed that they have extra knowledge that they will bring into the deliberations that was not presented at trial.
I’ll ask another question to convey the same point. This question is not rhetorical, and I would appreciate an answer if you’d be willing to give it.
“Assume you live in a castle doctrine state (generally: you can kill someone who unlawfully and forcibly entered your house). You hear a noise coming from down the hall. Your teenage daughter says someone busted in her window crawled in. You enter the room and see the person passed out on the floor reeking of alcohol. Would you shoot him?”
In California, such a shooting is legally justified. (Click here to read the text of California’s statute: goo.gl/XMDhTc.) However, the answer should morally be “no.”
This is very analogous to what Holland and myself are saying: police should seek a higher standard for the UOF rather than barely meet it’s minimum requirements.
Actually what you are doing is contradictory to the intent of Graham vs. Connor which clearly sets forth the precedent that the use of force should be judged from a reasonable OFFiCER perspective based on the information that officer knew at the time not 20/20 hindsight vision in a sterile environment (or behind a keyboard). Not a reasonable person but a reasonable officer. This is because most of the general public have little to no training or experience as to what a reasonable officer can and can’t do or when a reasonable can or can’t use force. I know a lot of highly educated, reasonable people who wouldn’t know the first thing to do when responding to a person threatening suicide by cop.
You are confusing criminal law with civil law. The “reasonable officer” standard of Graham v Connor is limited to federal civil cases; it has nothing to do with state murder laws. Attorney’s for Graham only brought his suit to seek damages under 42 USC § 1983 (goo.gl/nXVjD9)(goo.gl/2N79Am). You should consider reading the case for yourself and developments since the decision was handed down.
“I know a lot of highly educated, reasonable people who wouldn’t know the first thing to do when responding to a person threatening suicide by cop.”
Funny. I know a lot of experienced cops who don’t know how to interact with suicide by cop people. As my wife (a psychiatrist) likes to say “‘mentally ill’ is code for ‘watch your back.'”
I was a relatively new lawyer when Graham was decided, and in law school when Garner was. Garner has some real flaws, coming from stupid LE policies and a crazy definition of burglary as a non-violent crime (by the feds, for data collection purposes). A significant number of states amended their statutes to conform to those, so the civil law rule does have a real impact on the criminal law.
Graham itself reflects the wisdom of prior case law, going back to New Orleans & N. R. Co. v. Jopes, 142 U.S. 18 (1891). “In other words, the law of self-defence justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is, that if one approaches another, pointing a pistol and indicating an intention to shoot, the latter is justified by the rule of self-defence in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded.” 142 U.S. at 23. Graham is not an outlier, or an aberration, or even close to wrong. It is consistent with historical understandings that place the risk of error on the person who creates the impression of unlawful conduct. That does not even include the reality that LE gets to control all non-consensual encounters as a matter of law. Period.
Officers are held to the “reasonable officer” standard… They may use deadly force in defense of self/others AND also to seize dangerous suspects. I’m not sure Mr. Holland understands both Graham v. Connor and Tennessee v. Garner and how they apply to the use of force & deadly force.
And don’t ask your students a question…. put them in the situation, either through participating in a use-of-force, video simulation with feedback or a dynamic, scenario based event with role players. I think a noticeable percentage of your students would become A & B-ers.
Tennessee v Garner and Graham v Connor have nothing to do with criminal law. They were both suits for compensatory damages for supposed violations of federal civil rights statute (42 USC § 1983).
Police who use deadly force are charged under state murder statutes (manslaughter or whatever else the prosecutor decides on) which mostly rely on the “reasonable person” standard depending on the jurisdiction. Ask your union’s attorney if you are a LEO; the consultation would most likely be free.
The officer’s actions should first be viewed under the applicable state law that covers justifiable homicide by a peace officer. In my slice of the world that state criminal code parrots the language of Tennessee v. Garner and the reasonable office standard of Graham v. Connor. It also covers the use of deadly force in other specific situations: to prevent the escape of an inmate from county & state correctional facilities, suppressing rioters armed with deadly weapons, etc.
You are fantastically, wildly wrong about Garner not being used in criminal cases against LE. Many DA’s reference it in the letters they write explaining their charging, or non-charging decisions.
See Page 7, para 2-3
http://orangecountyda.org/civicax/filebank/blobdload.aspx?BlobID=22813
We’re not discussing reasonable person standard. Graham v Connor clearly states that an officer’s use of force be judged by the perspective of a reasonable officer on scene. Not reasonable person who has never had the responsibility of responding to violent crime but they watched Blue Bloods standard.
No, at face value I would not shoot him. No cop I know would.
I have not shot a tremendous amount of people that I was allowed to by law and by policy during my career. That is what your anecdotes neglect. Just because I can doesn’t mean I do and that stands for just about every cop I have ever met, we generally do seek a higher standard than minimum.
The point of my comment and Holland’s article is about criminal law and morality. You mentioned Graham v Connor which tells me you don’t really know what the case is about. Graham v Connor was about gaining financial restitution under a federal civil rights claim. The case has nothing to do with criminal law. Police who use deadly force are charged under state murder statutes (manslaughter or whatever else the prosecutor decides to charge the officer with) which rely on the “reasonable person” standard. (If you are a LEO, just ask your union’s lawyer for free.)
Graham v Connor is the standard applied to an officers use of force in determining if it was just or not. You’re lost in this world.
It depends. Some states have specific statutes applying to LE use of force, which are MORE restrictive than the standards applying to citizens in some cases. Considering the number of frivolous and malicious prosecutions of officers (the 6 in Baltimore; Kerrick; Rankin, all of which should have resulted in disbarment), it is pretty clear that some of my (not really) fellow prosecutors need to be removed from the bar because they are either incompetent, dishonest, or both. Even worse is the prosecution of the officers from the Plumhoff v. Rickard case, which the U.S. Supreme Court said could not even meet a civil standard of liability, yet the scumbag prosecutor in Memphis at the time charged them with murder for what was clearly a lawful and ethical use of deadly force.
There is nothing about criminal law or morality that is consistent with the SGM’s position or yours.
What’s with the repeated urge to “consult your union attorney…blah, blah…”? Not all LEOs have unions representing them. It sounds like you have an issue with police unions, in addition to the issues you have with cops not being up to your personal standards of moral, vs legal, behavior. Truth is, cops have little in the way of reliable, effective, or even timely legal guidance from professionals who actually know what they are talking about, such as Mr. Mitchell. Many get their legal background from academies and CJ101 level courses…imagine how out of touch and untimely most community college professors are. State’s Attorneys are seldom interested in or encouraged to provide such guidance unless pinned down. Government entities often do have legal counsel or even staff, however these folks tend to be wildly conservative with advice and default to inaction as a response. Where’s that leave most officers?
I understand your point about the make-up of juries. There will never be a jury sitting on a police officer’s trial composed of reasonable officers, peers, or family members of those officers. Or even folks who express that they support police as a matter of routine. But to argue that that necessitates a change to the legal standard for deadly force is ridiculous. So we lower the bar by raising the standard somehow? Police UoF in the United States is very much under control and restrained, despite the attention resulting from the current “feels” about the issue. Sure the public has a say, even a vote, but the courts are the arbitrators of force. They can disband their LE agencies, or neuter them with shitty leadership and insufficient resources and revisionist, restrictive policies…and they can reap the rewards for doing so. JoeG, you’re off the mark, and your opinion is just that, no matter how you insist otherwise.
I have lived in suburban places outside of Raleigh NC, Chicago IL, Charlottesville VA. Each of those places has a police union. It was merely an assumption based on my limited experience, and I thank you for pointing that out. (I do not have a problem with police unions though.)
I completely understand the frustration of trying to get adequate help. I know that city/county/agency attorneys exist to prevent lawsuits against their employer not to enable their employer’s employee to do his job. I get it.
You are wrong, however, to claim that “the courts [will be] the arbitrators of force.” The courts have only done that because there have been no statutes from the legislature on the matter. If the US Congress passed a law stating that use of force does not constitute a Fourth Amendment seizure, then the courts would be obligated to follow that instead of Tennessee v Garner and other Supreme Court precedents. In short: I’m saying a paradigm shift is imminent.
I never said anything negative here about a single LEO involved death with the sole exception of Walter Scott (whose killer is presently awaiting federal and state trial for civil rights violations and murder). People want Barney Fife until someone breaks into their house at which point they want a squad of Robocops. I can fully appreciate the situation in which law enforcement finds itself. The only thing I am saying is LEOs need to get their agencies in order before others do it for them at a cost they won’t like.
“Assume you live in a castle doctrine state (generally: you can kill someone who unlawfully and forcibly entered your house)….”
I am having a really hard time understanding why you keep referencing an event involving the actions of a citizen in their home and using it to attack the decision making of officers. You might get actual answers if you present a relevant scenario.
The answer to your oversimplified question is A.
A person who is a suspect in a felony (you don’t mention property crime vs crime against persons), who disregards lawful orders from people a reasonable person would believe are police officers, who arms himself and steps out of a vehicle so armed, is a deadly threat.
He MAY get an additional command or two to drop the gun before he should be shot. Action vs. Reaction has been scientifically proven to the point it SHOULD be common knowledge.
Your felony suspect has the means (gun in hand or on body) and the apparent demonstrated threating behavior (refusing to surrender to police, moving to a position of greater tactical advantage to potentially use unlawful force against the police). He’s a candidate for deadly force all day long, with those factors in place.
While you don’t owe anyone an explanation on the comments board of a website, if your experience is “college professor” you should do Mr. Holland a favor and stop defending his incorrect stance. Also, please stop polluting young people with whatever nonsense you are telling them about UoF, since it appears you understand it less than Mr. Holland does. You are part of the problem, not the solution, in this instance.
The only thing that people need to consider is “at what point did did Keith Scott become a deadly threat?” You chose a different answer than my students but it is in line with other officers. You proved everything I said about conformation bias and the need to consider the views of a potential jury that happen to be more restrictive than your average officer.
I didn’t teach my students anything about UOF. I asked a question; I didn’t tell them (or the readers here) my view. You wrongfully inferred that.
Moreover, Holland’s stance isn’t “wrong” as it is an opinion on what should be happening as opposed to what is happening. You assume he is wrong because you have a different opinion.
No, the law does not consider the views of the uneducated. The perception and recognition of threat, and how to control it, are simply not within the skills sets of anyone until and unless they are trained in it. I’d bet that with a relatively modest block of instruction about the realities of action/reaction, non-compliance, and other indicators, your students would start answering in a different manner, one reflective of the real knowledge of how criminals act and how little it takes to actually be a potentially lethal threat.
The answers of people who actually know will be similar because they know. The answers of the people who don’t know will be all over the place, and mostly wrong, because they have no clue. I’ve seen the same when teaching new guardians for child protective cases, teaching in academies (reserve recruits and citizen academies), and as a college teacher.
JoeG
You wrote;
“You chose a different answer than my students but it is in line with other officers.”
Continuing, “I didn’t teach my students anything about UOF. I asked a question”.
And finally, “You proved everything I said about conformation bias and the need to consider the views of a potential jury that happen to be more restrictive than your average officer.”
I understand you’re chalking this up to confirmation bias, but does the fact that officers are generally answering one way and your uneducated, to UoF, students are answering another way indicate of anything, additionally, to you? Is there another probable answer? I believe so.
The fact that you’re asking a group of less informed people their opinions and then posing the same question to a more informed group of people and receiving a different answer isn’t a shocking revelation. But, I think you’re missing the salient point.
If I’m having car trouble and I ask my wife and four of her friends what they think the problem is; and I then ask five ASE certified mechanics their opinions’ I’m very likely to have two distinctly different response patterns.
My wife and her friends aren’t really sure what’s wrong, but they may ‘feel like,’ or ‘think it might be’, x or y causing the problem. Now if the mechanics’ answers are approximate to one another, is that confirmation bias? Are the mechanics seeing what they want to see? No they are observing the same or similar problem and arriving at proportionate solution.
Cognitive bias is a problem that needs to be guarded against, but it isn’t the issue here. The issue we, as cops, have with: Mr. Holland, you, your students and the like is that you’re entitled to your opinion, but it isn’t a qualified one. Just like my wife and her friends’ belief about my car’s problem isn’t a qualified opinion, but the mechanics’ is.
I understand one of the points you are trying to make; that police need to be aware of the fact that citizens don’t see things the way we do, because you’ve stated it numerous times. I’d pose a question to you. Since Grand and Petit juries are made up of the general citizenry and not other reasonable police officers, why is it so unknown for an officer to be indicted or found guilty?
I’m not questioning your pedigree, but the points you are trying to make about potential jurors’ viewpoints are an indicator to me of your lack of expose to GJ SME testimony.
Finally, you wrote; “Moreover, Holland’s stance isn’t “wrong” as it is an opinion…” Mr. Holland wrote, “A suspect running away is not a threat!” That very likely could be wrong. At the least it’s incredibly presumptuous. To the second portion of that quote, I would add; ‘as it is an unqualified opinion’.
A point that few will make is that how an LEO should conduct himself is based upon the law in his jurisdiction. There truly is no common standard.
For example, here in Hampton Roads, a Police Officer in Portsmouth was recently convicted of manslaughter for shooting and killing an unarmed victim and another in Norfolk is on trial for shooting and killing a mentally deficient man who had a knife and was threatening his family. He took a step toward the officer and the officer shot him. As a reasonable person, knowing what little I did of both shootings, I would have assumed that the assailant had acted in accordance with his duties. Yet, men who acted both to protect themselves as well as the public, and claimed they felt threatened, were charged in two different courts, and one has been convicted.
I absolutely believe that they would have never been charged in many other jurisdictions, some of them here in the Commonwealth of Virginia.
The standards of conduct differ because the law and local expectations differ.
I am familiar with the conviction of Officer Rankin. It is a disgrace. That was politically driven and had no basis in law or fact. That prosecutor should be disbarred, and in no possible way is she a member of my tribe. I am concerned that the defense team was not up to the task, and it appears that the prosecutor went out of her way to obscure the truth as perceived by uninvolved citizens.
You, sir, apparently do not know how much you do not know. In other words, you, like Mr. Holland, seem to be speaking out of ignorance. You simply don’t know what you’re talking about, and while everyone is entitled to their own opinion, many, like yours and Mr. Holland’s in this case, have virtually no value (on this subject) since they are based on a lack of understanding of law enforcement best practices, UOF, case law, and simple reality.
If you’re looking for graphic proof of why the correct answer is A, I suggest you take a gander at the body cam footage of the recent OIS out of Kingman, AZ. Tactics aside, it shows quite clearly how a subject with a gun at his side can still raise and shoot before officers, who are already aiming their weapons at him, can shoot to stop his actions. Action beats reaction.
Despite cops spending all day convincing one another that everyone is out to kill them, it’s simply not true. Considering the sheer number of police and the number of contacts per day with the community, the danger to police is small.
Dude, don’t get out if bed without your tin foil, the danger to you is high.
The potential for danger is ultra-high. The reality is that it is less than ten percent. https://ucr.fbi.gov/leoka/2013/officers-assaulted/assaults_topic_page_-2013
Acceptable losses, right?
Don’t try to put words in my mouth.
And just as true, the danger to the citizens from rogue or wrong officers is at least as remote.
You have tried to infer something that is simply not there. I passed no judgement as to my opinion (option A). Moreover, I and Mr. Holland were talking about the way things should be, not the way things are here in your “simple reality.”
My point specifically is that juries, not case law and statutes, determine the criminality of individual actions. Jurors take their presuppositions with them into the court room, and presently those views are being shaped by social media and talking heads. The only thing I said is that officers need to be aware of this and hold themselves to a higher standard because the general public (the people who make up juries) is starting to hold the police to higher standards. The “low bar” that police (indeed everyone) needs to meet will eventually be raised if society provides pressure on the government to pass laws requiring that public servants must positively defend why they used lethal force as opposed to merely relying on reasonable doubt to result in a mistrial or acquittal (just one possibility)
By low bar, I mean nothing offensive whatsoever. I hope that this simple chart helps:
Morality Holland speak: “righteous kill”
————————
Evidence can’t create a consensus among jurors
——————
Technicality Evidence is circumstantial
——————
Legal Evidence is non-existent or not enough
Killing ——————————————————
Illegal Involuntary
Manslaughter ——————
Voluntary
————————
Not premeditated
——————
Murder Premeditated
——————
Capital
I’ll try this one more time.
. Morality Holland speak: “righteous kill”
. ————————————
. Evidence can’t create a consensus among jurors
. —————-
. Technicality Evidence is circumstantial
. —————-
. Legal Evidence is non-existent or not enough
. Killing —————————————————
. Illegal Involuntary
. Manslaughter —————-
. Voluntary
. ————————————
. Not premeditated
. —————-
. Murder Premeditated
. —————-
. Capital
Agreed. Across the board, cops have lost the morality of what they do. Instead, they’ve replaced morality with legality. They do the legal thing rather than the right thing.
What do you base this statement on? Your years of law enforcement experience? Your many interactions with cops? The time you got pulled over when you didn’t do nothin’? Or your perception, based on emotion, fear, and anti-government paranoia?
Terrific way to bully someone!
What he means is that what used to morality (will I suffer death or grave bodily injury) has been replaced by legality (will I likely be convicted). Moreover it is a judgement call that he as a citizen can make. You are doing yourself (if you are an officer) no favors as you are basically saying “I don’t want oversight.” If you don’t police your, that failure will bite you in the ass.
There is no evidence provided at all that your perspective on an officer’s consideration of the use of force is sound, and the rule of law is that with no authority provided for a position, it is not to be considered. The reality is that cops are injured, or accept too much risk of injury instead of applying the force they should, far too often. There is a lot of oversight – the fact that the results of that oversight are not consistent with the fantasy world of the moonbats does not mean that there is none.
Most of us are aware of the need to police our own, and I recognize several of the people responding to you as being strong advocates for such. Some of us have suffered over pushing for such. If you think policing is bad at that, take a look at medicine (over 250K medical error/malpractice deaths a year, 3rd leading cause of death in the U.S.), or law (we don’t disbar near enough lawyers, and I can tell you from being through the process of a bogus bar complaint from a dirty cop that Bar counsel here are the dregs). Compare MAYBE 5 bad OIS a year out of roughly 1000 fatal OIS to the medical bunch, and let me know how evil LE is.
This is fucking hilarious. And you came to this brilliant conclusion how?
The only cops thinking about conviction during their shootings are worried about losing their livelihood because of the talking heads like Obama, Holder and Nixon who shit on Officer Wilson, who would later be found justified at the state and federal level. So you’re kind of right, but cops are NOT pulling the trigger when they should because they don’t want to lose their livelihood over a justified shoot and live in a shadow. The video you’ve been linked to of a SWAT team in Arizona not pulling the trigger is a perfect example of this. And for your knowledge, during my shoot my thought was on making it home, not if I was cheating any system…just making it home. Add that to your anecdotes.
Way off base. Specifically, by saying “I know that rancher can’t hit anything with a pistol” is completely naive. Who said he is reaching for a pistol? An AR pistol, maybe a .357 with a 6″ barrel. Just because you *think* he might not be a good shot does not suddenly take you out of danger at 30 yards. You say we need Law and Order, and you would be correct Mr. Holland. When given a lawful order to stop and he reaches for something (after having already said he was going to shoot it out with the cops)… there is no fat to trim in that situation! He chose the outcome. SSD what happened here? Generally these Tier 1 type of guys are SUPER intelligent… guess we found the odd man out.
Wow. It’s like me running my cake-hole about UBL not deserving to be shot in the face by SEAL Team 6 because he wasn’t in immediate threat based on what I have read and seen in movies (a bad example because I would have shot him if he was watching Teletubbies while donating blood for orphans in yoga position).
This article is… unimpressive, and is inconsistent with the author’s professional reputation.
Neptune’s Spear was a kill mission. (This is my first conspiracy theory of the day.)
I’m finding the Gunfighter Moments segments to be good for helping me sort out who I would like to spend my training dollars on…..Post from Proctor, McNamara, and DeFoor reinforce that I should take classes or review their videos. Because they put out well reasoned opinions and factual/experience based info in a coherent article.
I can’t say the same for Mr. Holland.
Well they were all trained by the same people USA.
I love seeing how thin skinned all the “thin blue line” bubbas are.
You’re right. Although I haven’t seen a single person so far refer to himself as a “thin blue line bubba” (and many of us think that shit is just as gay as sheepdog references), we should have thicker skin.
Never mind the constant attacks on us and our profession by the media, public, suspects, victims, witnesses, the internet, and…. retired Delta SGMs….
Attention all cops on here! Thicken your skin up and stop defending yourselves against misinformation and blatant attempts to paint you as murderers on you and your actions!
Last part did weird pasting, should’ve read
Thicken your skin up and stop defending yourselves against misinformation and blatant attempts to paint you as murderers and on your actions!
Hooah.
Hear, hear.
“Never mind the constant attacks on us and our profession by the media, public, suspects, victims, witnesses, the internet, and…. retired Delta SGMs….”
Is your profession above reproach? No, it is not.
Yes, especially with this being a generally military themed website. It is amazing how many of these police shootings would absolutely get someone (and their entire chain) fried if they had been committed by a uniformed service member in a theater of combat, and I imagine this is where SGM Holland’s opinion comes from.
Here is a link to a War College lecture on use of force versus ROE considerations. It is well worth one’s time to watch. https://www.youtube.com/watch?v=JRA__wiSleE
Additionally, as a former command JAG, LTC Bolgiano’s books are worth one’s time as well. They are: “Combat Self-Defense: Saving America s Warriors from Risk-Averse Commanders and Their Lawyers” and “Fighting Today’s Wars: How America’s Leaders Have Failed Our Warriors”
You’re right, of course. I wonder how thick skinned an officer will be when he shoots someone, legally and morally correctly, and the defense hires Mr. Holland to explain how the officer was wrong. Firearms instructors who don’t know the law, shouldn’t be talking about it as all they are doing is hurting their former and potential students. I know several AUSA’s who read SSD. I’m sure there are guys on the other side reading it as well.
Awww, but Bragg gives me credibility guys!
Yeah, screw case law and the Constitution! <sarcasm
I have been reading Soldier Systems for many years. I was disappointed to come across such an uninformed article. I’m glad that I read the comments and learned that I wasn’t the only one to share this opinion.
I don’t normally jump into these things on the internet, and I think that several long time LEO’s (18 years here) have articulated at least that Holland didn’t go far enough in his explanation if he didn’t just flat out miss the mark on some.
But lets go the other way with it since this did stir up a healthy discussion. What if Holland said “more people should be getting shot and I am going to teach you how to legally do it.” Would you go to seek his training based on that philosophy?
I get the “stay in your lane” part, believe me. But quite frankly I go to most courses for specific reasons and I have never turned to the internet or forums for my go-to legal advice. Same goes here as well.
I have, and often still do, seek out the opinions of those OUTSIDE OF THE PROFESSION AND INDUSTRY to get a good gut check on what average people think are right and wrong in terms of police action. I am nearly always horrified by their answers because they are generally very simple and not based on law, but it is reality.
This is the most mature comment here.
This
Ref the HRT shooting, I find it ironic that there are a bunch of former Unit guys on HRT. Darryl, it’s your own people you are criticizing.
That makes it all the more valid.
Ummm…not really.
That’s a big negative…they are primarily former Marines and Navy guys with some Army dudes sprinkled around…
“The phrase Black Lives Matter suggest racial superiority. ”
yeah if your a fucking dumbass
“Save The Pine Weasel” = Kill other animals.
Literally how stupid that this how you interpret that phrase? It’s just white people backlashing at any suggestion their world isn’t perfect even though you all like to go on about how big federal government is always out to get you and try to fashion yourselves as oppressed. When the critcism comes from people outside the group, they can’t handle it.
“even though you all”…post invalidated, dickhead
watch out we got a rocket scientist here
Hilariously depressing to watch the movie Serpico, and see him talk about how out of touch the police are in 1970s and realize literally not one thing has changed and it’s very telling that even to this day serpico is still a ostracized by police. Like they don’t bother to pretend that he was some hero or anything, they still shit on and ignore the guy. Cops are literally a gang with state powers, and have never been anything more.
How very edgy of you. Oooohhh, I’m impressed.
edgy = having empathy for actual human beings instead of cheering on state powers that exist solely to grind down on the poor? uh, ok
“quit trying to be all edgy and and act like the normal default status of a human being which is cheering protestors getting tear gassed, while later on conferring with your gun about big bad government tyranny with no self awareness as to how full of shit you are!”
I think I’m going to step away from this post and the comments, or at least try to. Like I said earlier, I have the utmost respect fro Mr. Holland’s service to our country, but he is way off base here. Fine, good, great, the man said his piece and I respectfully disagreed.
Now some of the anti-government, anti-cop, anti-American types throwing their two cents in are causing me to lose my calm and engage in internet slap fighting with fools. Time to step away from the keyboard for a bit. Hope everyone has a good afternoon.
I admire Daryl for going sacred cow tipping. There’s an adult beverage for him on my tab anytime he wants to claim it.
With all the respect due, my personal opinion is that Mr. Holland is grossly out of his lane. There is no doubt that within is field, he was/is likely quite competent, but this literally is a case of unconscious incompetence, in other words, not having the experience to know what you don’t know.
If I was looking for advice on how to conduct a Direct Action, kill or capture type mission on an HVT in a non permissive environment, then I would perhaps seek his advice.
That said, comparing law enforcement/patrol activities and conducting unknown risk stops dozens of times, night after night in a crime ridden area, in relation to CAG’s specialties is like comparing apples to kittens.
That would be like a person saying “I was a swat/patrol cop in a big midwestern city, and we carried guns and such, so therefore I am qualified to tell SEALS how to plan and conduct assaults on GOPLATS”. It simply is not the same game. Apples to Kittens.
No doubt Mr. Holland is a stand up dude, but there is a whole lot of deeply held beliefs that are simply erroneous in that article.
BTW, I happen to know a rancher/farmer who could disappear in a crowd of 3 farmers. That said, he is also a grand master USPSA shooter, and well known to older USPSA members. The point is you have absolutely NO idea who you are dealing with in an unknown risk encounter, and labels like “just a rancher” show a lack of critical thinking skills, the kind that get people killed.
On July 7, 2016, Micah Xavier Johnson ambushed and shot up a group of police officers in Dallas, Texas, killing five officers and injuring nine others. Two citizens were also injured.
Johnson was “just a reservist”, who was a carpentry and masonry specialist in the U.S. Army Reserve.
Not an 18 series, not a Ranger, nothing, just a PFC who specialized in carpentry.
He was “Just a poorly trained reservist who did carpentry”. Yet he managed to kill 5 police officers, and injure 9 more.
Labels…. Be careful about them.
Good post.
Great post.
Bravo. Well, said. Lots of bad guys in Afghanistan and Iraq who were “just farmers” or “just merchants” have gotten their licks in against our nations’s finest, including CAG. You don’t have to be the best to “win,” just the best right then. I am pretty sure that top-shelf SOF folks are told to never underestimate their foe.
Daryl Holland shows a glaring amount of ignorance, and is way out of his depth and expertise. I don’t have space to point out all of the factual mistakes he makes. Does Holland know that a 5,000 lb truck driven by a “rancher” is a deadly weapon, and OSP opened fire on said armed “rancher” as he had tried to run down agents and troopers? Does Holland know that LEO ROE allow cops to shoot an armed criminal “running away” if that person has committed a violent felony or if that criminal is trying to gain a tactical advantage? After 7 yrs in SOCOM units, 1/75 Rangers and SF, I see this all too often: Military vets like Holland who have never been to a law enf. academy think they know something about law enforcement. Holland will never admit that SF, SEALs, Delta/CAG, etc. have their share of soldiers who “fell through the cracks” and can not handle the stress, screwed up tactically, etc. Holland also needs to proofread his writings, or perhaps get a year of community college under his belt and have his classmates proofread his opinion pieces.
“Does Holland know that LEO ROE allow cops to shoot an armed criminal “running away” if that person has committed a violent felony or if that criminal is trying to gain a tactical advantage?”
That isn’t what he was talking about. You and everyone here assume that without critically reading what he said (and he said some dumb things, granted). He wasn’t talking about the legality of a shooting; he was talking about the morality of it. In his words, a righteous killing is one that enables him to sleep [well] at night.
Walter Scott was shot in the back after committing a violent felony (assaulting an officer) and attempting to flee. Should he have been shot? No. What reasonable officer would do that?
Maybe, maybe not. There are at least some facts that would support the reasonableness of that shooting even under Garner, and the more I see the effects of that decision, the more concerned I am that it was wrong. The fact that will probably cause that officer’s demise in court is that he seems to have moved the Taser after shooting Mr. Scott, and that kind of evidence tampering renders everything he did subject to serious question. Some people are too dangerous to allow to be free. Whether (you or) I would have fired the shot is not the test.
My opinion is that although Holland clumsily said something and not so eloquently used a bad example to make his point, it is something that needed to be said – in other words, there is some truth to what he said. From my perspective, his point was driving home the importance for anyone who has the responsibility of carrying a gun, to gain the experience and maturity to cultivate the appropriate time to execute deadly force. The simple retort is to say sometimes you don’t have time to think…my simplest response to that is, this his point. When time isn’t an option, the sub-conscience has to be relied upon. The only way to rely on the sub-conscience is to train and train properly. Training, tempers a persons reaction and matures that individuals confidence which gives that person the ability to exhibit calm, decisive timely sub-conscience decision making skills. Some call this “muscle memory”. I don’t care what you call it. All I know is that what I drew out of Holland’s post was that you can’t train enough to gain the requisite experience necessary to mature the mind to act quickly, confidently and decisively when it matters – rather then simply reacting through perception and fear. Fear stunts proper decision making and uncontrolled fear impedes good decision processes. Not all possess that critical ability…that was what I took away from the point he made to “trim the fat” and assign proper selection criteria. Not everyone can do the job…that’s my chief take away from Holland’s post…but then again, I could be wrong…
Law Enforcement involved shootings- right or wrong- are all of our “lanes”. We as Americans have a responsibility to parse these occurrences (though rare) to the tiniest degree.
Mr. Holland has every right to express his opinion on the actions of public servants. In fact, he provides some value through the lens of his experience as a seasoned gunfighter (and operator of some seriously convoluted and complicated ROE as well- I’m sure)
Beyond that: after conducting training with and for many in the LE community ….I’m less and less confident in the general officers ability to differentiate and correctly apply deadly force. Trimming the fat….yes.
The way I read it, a retired SgtMaj, SMU no less, is giving an off the cuff opinion on what he sees in the videos and note he is neither an English Major nor a culturally (mil/race/LEO/etc.) anodyne talking head, nor a LEO himself, so I don’t expect his remarks to be honed to impress everyone or for him to fully understand LEO perspective. Frankly, I’d be surprised if the LEO community isn’t always focused on raising the standard for SELECTION, TRAINING and PREPARATION despite all of the media hostility and training budget challenges. But…if you’re (LEO community) watching the same videos he’s referring to and can’t see some room for improvement and some brutally honest assessment of what’s right and what’s wrong regarding training, I guess I just don’t understand the LEO community sentiment here beyond some ego and would encourage Darryl to expound on his rationale and recommend some improvements, from his perspective. FWIW, and I’m from similar background, I get what he’s saying and what I see in these vids is that better training might/most likely would have resulted in better outcomes….but wtf, that’s just my perspective and it’s not real productive for me to say that I’m seeing the need for better training 9 times out of 10 in these videos when I’m no LEO, but that’s what I’m seeing and the comments above don’t do much to dispel that impression. If a LEO sees something else or these vids are same shit different day/all actions justified, I have to respect that opinion but am thinking that some interdisciplinary exchange, both ways, might be in order. It would be good, perhaps, to watch a podcast of Darryl and a respected LEO talking through a few of these videos as a gear blog, even a really good one like this, is perhaps not the best place for LEO, lawyers, soldiers and others to gain an understanding of one another.
Like many have said before, thanks for your service. I doubt I could have achieved the things you have in the military. I’m sure the tactics you teach are, for the most part, sound. But you are wrong on the point regarding the shootings you refer to as unjustified.
Also, thanks for letting me now know that should any officers from my department request training in one of your classes, it will promptly be denied. I can’t afford to have one of mine, or any others for that matter, learn from an instructor that does not understand the environment we work. I’ve run in to this with other classes, and had to remind my buddies that what was being taught, by former SOF, would never fly in our operational world because it would get us criminally charged.
Just an update – the autopsy came back on the guy in Tulsa, OK – high on PCP.