For a citizen, it wouldn’t have been necessary. Citizens aren’t required or expected to rush toward danger. Citizens are not responsible for the safety of the people around them and citizens, usually, can’t be censured or disciplined if they fail to stop someone else’s bad acts.
If a man with a knife runs toward an occupied house, the citizen has no responsibility to the people inside. An officer does and may need to make a choice to shoot a man in the back and live with the consequences of that choice…or to not shoot him and live with the possibility that the threat might kill children in the house.
There are no perfect answers in most tense situations. There are few, if any solutions where all parties involved are going to walk away with a smile in their hearts. Sometimes there aren’t even good answers. Sometimes there will be orphans. The officer’s duty in those situations is to try to choose the least bad answer.
To call a decision ‘bad’ we must have an alternate answer that we are sure would have resulted in less tragedy.
This is not a choice that a citizen is likely ever to make. It is one that officers have made. And they have had to live with the consequences. It is nothing short of choosing between nightmares—you will either live with the consequences of your actions or the consequences of your inaction. You will never know if the other choice would have been better or worse.
Not every police decision involves life or death. The officer needs skills that cover everything from mediation and calming down enraged EDPs to hand-to-hand skills, hand weapons, chemical sprays, and firearms.
Because of the duty to act, officers need skills that rarely enter into civilian self-defense. The things that can be handled with a wristlock or an escort hold are also the situations that a citizen can likely avoid.
Not only do officers need high-end self-defense skills and are more likely to use these skills than most civilians, they need an entirely separate set of skills for defending a third party or breaking up a fight.
Duty to act not only puts more moral pressure on the officer, exposing him or her to ugly, no-win situations, but also increases the complexity of those possible situations. It requires a broader base of skills than are needed by people who can choose to simply leave.
Duty to Act When You Can’t Do Anything
Sometimes, there is nothing the officer can do. Or nothing he or she can safely do. Or there is a good chance immediate intervention without proper training, equipment, and support will make matters worse. In cases like these, the duty to act can be satisfied by getting to a safe place, keeping an eye on the threat, and calling for help.
Very few officers are trained in hostage negotiations, for instance. When a lone officer stumbles into something that either is or becomes a hostage situation, it is safer for everyone, in most cases, for the officer to pull back and call the specialists. Amateur hostage negotiators can make matters worse. Storming a barricaded subject, with or without hostages, is a dangerous specialty. Individuals being heroic can quickly become hostages themselves.
At the heart of these kinds of decisions is “officer discretion.” Every situation is different, as is every officer and every threat. Officers must cultivate the judgment and be empowered to make the decisions when they are presented with a situation.
This is inherently risky and one of those factors that can make citizens very uncomfortable. It makes officers uncomfortable, too. Officers are rarely required to make an arrest or issue a citation in misdemeanor cases. It varies by policy, but in most places, if an officer happens to see a six-year-old shoplift a candy bar, the officer can tell the kid to give it back and apologize.
That discretion—to give the kid guidance or start a juvenile record and get a bunch of agencies involved—is a huge power. It is both feared and necessary. Too often, it also feels like a trap, a trap with no right answers.
On the feared side, turning a blind eye is also a form of discretion. An officer can avoid confrontation just by not doing the job. Discretion to let a minor lawbreaker go could be based less on whether the message was sent (the verbal warning for a traffic infraction) than on who it was—friend, family, another officer. Discretion is also the crack that people of power try to pry at: “Do you know who my father is? Can’t we just make this go away?”
Fear can be rationalized as discretion. Stopping a high-speed chase or not engaging in a Use of Force or not chasing a running suspect can all easily be rationalized—they can be dangerous, and sometimes the danger to the threat, yourself, and bystanders, isn’t justified by the potential result. What level of force would you be willing use for a city noise ordinance? For a car theft, are you willing to risk tearing through a school zone at lunchtime at 90 mph? There are good and bad reasons for making any of these decisions.
At the extreme, discretion can become abuse of authority. The “reasonable officer” rule is vague. It has to be, because the situations in which you need it are impossible to script. In that vagueness, it is possible for a bad or fearful officer to perceive justifications for things he wants, not needs, to do.
There is no easy answer for this one, no line that can be drawn that will make everyone happy. We all want ‘justice’ but that is a hard concept to define. If ‘justice’ were based simply on results, motivation wouldn’t matter and there would be no difference between intentional murder and accidental manslaughter. Justice-as-retribution collides with the concept of ‘behavior modification.’
Once upon a time I was driving a marked patrol car* and passed a car with a young couple in it. The wife was in the passenger seat with a toddler on her lap. Big no-no in my state with a very hefty fine. I passed, made eye contact with the driver, got a ways ahead and pulled over. The couple stopped their car and put the baby in the child seat. They drove on past, and I waved.
In a world with no officer discretion (and a jurisdiction where Corrections Officers had arrest powers), I might have been required to pull them over and write a ticket. There was nothing about their car to indicate that they had money to burn on fines or court fees. The kid was safe. What more did I want?
There are some areas and some laws where discretion has been outlawed—‘will arrest’ rules. For instance, if someone calls in a domestic violence complaint in many jurisdictions, someone has to go to jail, at least for the night or until bail is posted. Officers have made mistakes in judgment that had tragic results, most famously when Konerak Sinthasomphone briefly escaped from Jeffrey Dahmer. Officers responding to a naked, dazed, and raped fourteen-year old boy decided it was a ‘lover’s spat,’ and returned the boy to the serial killer cannibal, who did what serial killer cannibals do.
So, removing discretion in this case is good, right? Sort of. Except bad people have an amazing ability to use good things for bad ends. The ‘will arrest’ rule has become a harassment tool in divorce cases, and a way to empty a house for burglary while one spouse is in jail and the other is trying to arrange bail. It is one of the few issues where no evidence is needed for an arrest. The expectation is that there will be no serious repercussions unless found guilty at trial, so no harm, no foul. In theory.
But what if you have a job where you can be fired for missing a day? What if a day in jail causes you to miss a mandatory custody hearing? A lot of well-meant legislation can have unintended consequences.
Force is a form of communication, the most emphatic possible way of saying, “No!” or “Stop that!” or “Do it now!”
An officer enters any use of force with a goal in mind: to get the handcuffs on; to remove the drunk from the premises or the car; to get out of the ambush alive. The preferred goal is always cooperation, where the citizen