Balancing Risk Versus Duty

By David Bautista

If you take a moment to poll your officers or deputies, ask them this question: What is a radio call? The likely answer is that it is a call for service. They are correct. However, what many fail to recognize is that a radio call is, more importantly, a call to evaluate for the appropriate service. In some cases, law enforcement is not the appropriate service to address the concern, and law enforcement’s response or nonresponse should reflect that. In some circumstances, such as responding to an active school shooter to immediately address the threat to prevent death, our role is crystal clear. Other responses, however, are not as clear and the mission of law enforcement has crept into other areas of significantly lower clarity, with consequences to society and law enforcement.

Over the course of many years, law enforcement agencies have become the solvers of all problems big and small. Unfortunately, this community need has placed law enforcement in a precarious position. A position where our communities now have unrealistic expectations about the role of law enforcement. I’m not talking about community meetings to discuss crime statistics or traffic concerns or addressing reported criminal activities. I’m talking about those calls we respond to because someone is reporting something that “doesn’t look good”— not criminal, but something that offends our ideal of what society should look like (e.g., the filthy, disheveled homeless man struggling with mental illness who is animated and talking to himself or is using a knife as a tool to work on their bicycle). These are situations or actions that some community members don’t like to see but do not create a public safety hazard and are not criminal. Situations in which law enforcement has neither the business nor the legal standing to intervene. In fact, our intervention may potentially escalate the circumstance into a needless violent encounter. We have programmed our officers to be community servants — even when that service could put community members or the officers themselves at risk.

We must empower and require officers and supervisors to closely evaluate each call for the proper response. The only way to accomplish this is through sanctioned department training and messaging from department leadership. Sounds simple, right? Do your officers understand the public duty doctrine? What is a special relationship? Do we have a duty to act even when a crime has not occurred and there is no articulable public safety risk?

Many officers I have spoken to say we have a duty and responsibility to respond to every radio call. Some may go so far as to say we have the right to detain someone because they are the subject of the radio call. This is just not true, could be illegal and may not be prudent for the safety of all those involved. If we detain someone without legal cause, anything we do to prevent the person from leaving may be deemed excessive. Now, I am not saying we should not hold people accountable for their actions, but we must always balance risk versus duty. What message is your agency conveying to your field officers and supervisors?

Let me give you an example in the form of a real scenario:

A reported petty theft of T-shirts from a special event is called in. Unbeknownst to the suspect, they are followed by a witness. The witness sees the suspect vehicle stop at a gas station. Officers are responding to the gas station. What is your agency’s expectation if:

• The suspect leaves and the witness continues to follow?
• The suspect leaves, officers locate the suspect’s vehicle and the suspect fails to yield, triggering a pursuit?

What do you expect your officers and supervisors to do? Consider your duty to respond. Consider your de-escalation procedures/policy. Consider the severity of the crime as a factor. Is there a public safety risk? If so, how can the risk be mitigated?

Let me give you another example of a radio call I heard recently. The call was waiting to be dispatched. I am paraphrasing, but the following encapsulates the scenario:

The reporting party is reporting a male standing on the sidewalk. The male is holding an imaginary rifle and is pretending to shoot at passing cars.

With this information, it sounds like there is no crime and no public safety risk. Initial assessment is a person struggling with mental illness. However, before rushing to decide whether a response is necessary, consider asking for clarification through dispatch. Consider calling the reporting party directly to get additional information. Now, of course, if the information you are receiving indicates an immediate response is necessary, taking the time to ask these questions may not be prudent or appropriate. Some questions I may ask are:

• Does the person appear to be struggling with mental illness?
• Did the male threaten anyone with physical harm, or did the male damage any property?
• Does the individual have access to an actual weapon or firearm?
• Are you still at the scene observing the person?
• Can you tell me why you think this person is a public
  safety risk?

The information provided will guide my response. Possible response options are: If there is a crime, take appropriate action. If no crime is articulated, send an officer to observe the male, from a distance, to determine if the subject is committing a crime or creating a public safety concern, and then respond appropriately or not at all and/or change the call to an “information only, all units” type call unless new information develops, changing the circumstances. A good practice, time permitting, may be to call the reporting party to explain the response decision. Even if we don’t call the reporting party, we should be prepared to articulate our decision-making process if called into question.

Providing effective law enforcement services is the key to maintaining legitimacy in our communities. We have been entrusted with and are in the position to make critical decisions that shape our communities and the future of our agencies. Understanding and reinforcing in our field officers and supervisors their duty to evaluate for the appropriate response will provide a clear vision and guidelines for our department members and community members, a vision framed in policy, law, and moral and ethical behavior.

The question that remains is how? In my view, there is no one answer that meets the needs of every community. Every community is unique with a unique set of needs and expectations. Some of those expectations are unrealistic. Many communities are creating teams of clinicians and social workers to handle some “closely evaluated” situations involving those struggling with mental illness, a concept that, in a perfect, predictable world, is very appropriate. Sadly, we live in an imperfect and sometimes unpredictable world.

Whatever we do, we must look at new ideas like never before. Current methods must be closely evaluated for needed enhancements. Experience and listening are our best guides to anticipating potential outcomes that will lead to our abilities to respond most appropriately or guide others to the best response.

About the Author

David Bautista is a 28-year veteran of law enforcement. For over 20 years, David has been involved in the development and presentation of training for law enforcement officers — from recruits to command staff — on a variety of topics ranging from implicit bias and emotional intelligence to active shooter and critical incident management. Most recently, David was a significant contributor to the development and delivery of the POST-approved De-escalation and Crisis Management training that was adopted by all the agencies in the county where he is employed. Comments or questions concerning this article can be sent to responding2resistance@gmail.com.