An Evolving Threat to Police Officers

VON KLIEM, J.D., LL.M.

Editor’s note: This article was originally published in Force Science News (forcescience.com) and is reprinted here with permission from the author.

“… If I’m in that officer’s position, just as a regular human being, not as an officer, and I have the choice to shoot and kill [the suspect] versus the risk of maybe [the officer] getting slashed by a knife — every day I’m choosing [for the officer] to get slashed by that knife.”

— Jury foreman analogizing an officer-involved shooting 

National Police Week is our time to pause and recognize those officers who have lost their lives in the line of duty. It is about honoring the selfless service of fallen officers and a reminder and celebration of the over 800,000 officers who continue to serve at great personal risk.

For those of us tasked with investigating officers’ responses to violence, it remains clear that officers risk more than their physical and mental well-being. Even where officers can successfully respond to deadly threats, there remains a segment of our population ready to indict, convict and imprison them. The opening quote should serve to remind our profession and communities that surviving deadly assaults may not be the end of the fight for law enforcement.

Changing the Rules

No one seriously argues against honest accountability in policing. But officers are increasingly facing criminal charges after officer-involved shootings, not because they weren’t responding to imminent and unlawful threats of death or serious bodily injury, but because too many politicians, academics and anti-police activists have been allowed to distort facts, second-guess tactics and create expectations of officers that are simply beyond human performance capabilities. 

In too many places, the rules have changed. Prosecutors, juries and activists have been emboldened to ignore the reasonable officer standard, ignore expert police testimony and simply use hindsight to imagine better or more effective tactics. Of course, with hindsight, the outcome of every decision is known, allowing bias to create a level of predictability and certainty that did not exist for the involved officers.

Predictably Unpredictable

In a 2021 blog post, I predicted the challenges that hastily enacted police reform legislation would pose to officers. In “Use of Force Social Experiments Expose Officers to Criminal Liability,” I made the following observations:

“Officer-created jeopardy theorizes that officers might avoid deadly force encounters by mitigating the intent, ability, means or opportunity of suspects who would otherwise threaten deadly force. True enough. However, under this theory, even if a suspect poses an actual deadly threat to an officer, some have argued that the officer should be held liable if it can be shown that they failed to effectively dissuade the suspect through de-escalation (see forcescience.com/2020/03/realistic-de-escalation) or otherwise exposed themselves to the suspect’s deadly attack. This pre-seizure conduct is considered part of the totality of the circumstances, but without a limiting principle, it provides unrestrained opportunities for speculation and blame-shifting.

“Nevertheless, fact-finders in some jurisdictions are now statutorily required to consider if any conduct by the officer increased the risk of the deadly confrontation. Of course, merely showing up to confront an armed suspect increases the risk of a deadly confrontation. This mandate expressly requires the second-guessing that the Supreme Court has expressly rejected. They presume a level of predictability and certainty that rarely exists in use-of-force decision-making and will expose officers to assessments heavily influenced by outcome bias and anti-police bias.”

Some academics have seized the opportunity to advance this controversial social experiment in criminal cases by testifying that unsuccessful tactics were “predictably counterproductive.” Prosecutors have latched onto this illusion of predictability to justify charging decisions limited only by the creativity of their 20/20 hindsight.

In a recent example, Colorado prosecutors convinced a grand jury to indict a police supervisor for remotely authorizing the removal of a DUI driver who, at the time of the authorization, had locked himself inside a vehicle, where he sat passively resistant. The prosecutors successfully alleged that the decision for removal predictably resulted in the death of that driver. The theory being that if officers had not attempted to detain the driver and remove him from the vehicle, he would not have tried to stab the officers, and they would not have shot him in response. 

Police as Primary Aggressors

Predictably, the prosecution also advanced novel theories of criminal liability to charge the officer involved in the shooting. 

After approximately one hour and 10 minutes of multiple officers attempting to persuade the driver to unlock the doors and step out of the vehicle, the senior officer at the scene made the decision to unlock the passenger-side door by first breaking the glass with his baton. Upon hearing the glass break, the driver armed himself with a knife and repeatedly reached for the driver-side door handle, prompting one officer to order him not to do it. It appeared to several officers at the scene that the armed driver was now trying to get out of the car. 

At the direction of the cover officer, the officer involved in the shooting first tried beanbag rounds to disarm the driver. When the driver refused to drop the knife, and at the direction of the senior officer at the scene, the shooting officer attempted to use a Taser to overcome the armed resistance. It was not until the driver repeatedly tried to stab and slash the contact officer that the shooting officer resorted to deadly force. 

It seems the prosecutor’s theory of liability had several parts. First, the officer had no right to shoot the driver because, in the prosecutor’s view, better or more effective tactics and de-escalation would have prevented the unlawful assault in the first place. 

Next, it was argued that the use of the beanbag rounds and Taser were not only unreasonable, but they were intentionally and unlawfully used to inflict pain on the driver. Never mind that the agency policy specifically adopted these less-lethal options “to assist with the de-escalation of these potentially violent confrontations.” Apparently, it was not important to the prosecutor that their Taser expert testified that the Taser failed to connect and that the driver was not likely experiencing any pain from the Taser discharge.

Even so, the officers were characterized as the primary aggressors, which meant that, according to the prosecution, the driver had the right to defend himself with deadly force. It follows that the shooting officer had no right to prevent the armed assault and was instead required to stand by and watch as the driver attempted to stab the contact officer. 

Absurd Result

The absurd result of the prosecution theories is that officers can no longer predict the lawfulness of their conduct. They either stand and watch another officer get stabbed, or they subject themselves to a criminal trial every time a prosecutor decides they didn’t do enough to de-escalate, persuade or avoid the assault. 

A quote from human factors expert Dr. Sidney Dekker highlights the untenable position officers face when criminal trials become tactical after-action reviews. “There is almost no human action or decision that cannot be made to look flawed and less sensible in the misleading light of hindsight.”

For his part, the cover officer in the above case continues to face second-degree murder charges after surviving his first trial with a hung jury. Witness testimony and juror interviews disclosed a troubling shift in how officer use-of-force cases are evaluated.

Bypassing Qualified Immunity

Before detailing some of the juror comments in the Colorado case, it may be helpful to contrast how police use-of-force cases are evaluated in civil and criminal cases.

Before jurors see a civil case involving an officer’s use of force, the officer can file a motion for summary judgment based on qualified immunity. The question before the judge at this pre-trial stage is to determine whether the nature of the alleged excessive use of force was so obvious that any reasonable officer would have known what they were doing was excessive and, therefore, unconstitutional. At this stage, “obvious” means that the excessive nature of the force was clearly established and beyond reasonable debate. If reasonable officers could disagree as to the excessive nature of the force, then qualified immunity applies.

In criminal trials, officers do not enjoy the same qualified immunity protections. Even in cases where every officer agrees that the use of force was justified and consistent with training, a prosecutor can still charge the officer with a crime and send the case to a jury.

In the Colorado case, the officer was administratively cleared by his department and returned to full duty within weeks of the shooting. The officer was also indemnified by his county, who determined the shooting was within the line of duty. As I remember it, every officer at the scene believed the driver posed an imminent threat of death or serious bodily injury to the contact officer. Even so, the prosecution was free to disregard the perspective of these officers and invite a jury and an outside law professor to substitute their tactical expertise for that of the involved officers.

Jurors Evaluate Tactics

When prosecutors turn the courtroom into a tactical after-action review (AAR), they have invited jurors to use hindsight and imagine better or more effective tactics. Instead of asking whether an officer “could have reasonably believed their conduct was lawful,” jurors are encouraged to criminalize the tactical decisions and use-of-force responses of law enforcement officers with whom they disagree.

Interviews with jurors following high-profile cases give us insight into how far they are willing to go to criminalize officers’ tactical decisions. In finding officers guilty, jurors have been heard to say (I paraphrase here):

“I just think they should have de-escalated a little longer.”

“They should have been nicer.”

“They should have tried to disarm him with the Taser before the beanbag; if the Taser failed, they could have borrowed one from another officer.”

“We thought the beanbag was worse than the Taser because officers don’t get shot with beanbags during training.”

“The officer should never have been standing that close!”

“Yeah, the officer might have been cut, but they didn’t necessarily get stabbed or receive a serious bodily injury.”

“We spent a lot of time discussing whether the knife was really that dangerous since the officer had a vest on.”

“The officers should have just stopped and backed away. They could have sat in their cars and just watched him.”

Unrealistic Expectations

In many of these trials, it is evident that jurors are being led to believe that police decision-making is simply a choice between rushed violence and patient persuasion. “Expert” witnesses reinforce this view by treating de-escalation as a magic incantation — just say the right words, and de-escalation happens. Failing to de-escalate then is merely a choice for violence. 

Police leaders attempting to highlight tactical creativity and management of time have been heard to say (including in recent testimony), “Just because it is legal, doesn’t mean it is right,” or “Just because you can, doesn’t mean you should.” The risk is that jurors will translate those sentiments to “just because it is legal, doesn’t mean we can’t convict you.”

Homicidal Empathy

Turning trials into civilian-led tactical after-action reviews should cause any police officer to pause as they consider how to best serve their communities. This article’s opening quote may point to a concerning shift in some societal attitudes toward the police.

To be precise, the jury foreman credited with the controversial quote was trying to convince another juror to vote guilty on the murder charge. To help the holdout juror understand her rationale, the jury foreman provided the following analogy based on the facts of the case:

“… If I’m in that officer’s position just as a regular human being, not as an officer, and I have the choice to shoot and kill this person versus the risk of maybe my friend getting slashed by a knife — every day I’m choosing for my friend to get slashed by that knife.”

In fairness, some of you may be reading the juror to mean she would choose the uncertain outcome of a knife attack over the certainty of death associated with firearms. Others may be imagining the juror is somehow distinguishing a knife cut from a knife slash from a stabbing — concluding the “slash” is less of a threat. Giving the juror the benefit of the doubt by imagining she isn’t advocating that officers die before armed, assaultive suspects are shot — her quote nevertheless makes my point.

In the split seconds that are often involved in knife attacks, officers are never going to know if the attack is going to result in a cut, slash or stabbing. They do not know the ultimate location, severity or permanence of the injury. They do not know whether the one “slash” will be followed up with multiple others.

The juror imagines that officers get to choose between killing a suspect and “maybe getting slashed by a knife.” If the juror imagines that officers can accurately predict the extent of an injury or that a “knife slash” does not risk death or serious bodily injury, those are not assumptions that officers and community members living in the real world can afford to make.

Force Science continues to work with some of our country’s most talented and committed attorneys, politicians and law enforcement leaders. These professionals, on all sides of litigation and political reform, are still committed to honest accountability and refuse to elevate their expectations of police beyond human performance capabilities.

But, if empathy for suspects is driving prosecutors, politicians and jurors to accept, and even prefer, the death of officers over shooting armed and assaultive suspects, this homicidal empathy should alarm every law enforcement officer, community member and political leader in the country.

About the Author

With extensive experience as a police officer, educator and attorney, Von Kliem  provides cutting-edge training and consultation on constitutional policing, use of force, crisis communications and trauma-informed interviewing. His expertise extends beyond police practices, with over 20 years dedicated to responding to, investigating and prosecuting family violence and sexual assault cases. With over 30 years in the criminal justice field, Kliem has held positions as a patrol officer, community police officer, gang and drug investigator, senior use-of-force instructor, street-level patrol supervisor, parole investigator and jailer. His legal positions included chief prosecutor, special victims’ counsel, police legal advisor, senior policy attorney, military magistrate, special assistant U.S. attorney and domestic operational law attorney.