Saturday, November 29, 2014

Recipes for Obstructing Justice: Deconstructing the Split-Second Decision

There is hardly a case when a Law Officer is involved in a shooting of a suspect that the ubiquitous defense used to justify the shooting is the Split-Second Decision.  This terminology is so popular and romanticized that it qualifies as a popular culture meme. Just about everyone who shoots another person claims both self-defense and the necessity to make a split-second decision.

The importance of understanding what this terminology means is critical for the general public because in cases such as the #Ferguson shooting , the Cleveland shooting of a 12-year old boy playing with a B-B gun, the shooting of a Black man in Ohio at a Walmart and more, the excuse for a deadly shooting of the suspect is that the officer has made a split-second decision.

Even more troubling is that this defense is exercised by Bounty Hunters (this one shooting a vehicle), citizens who feel threatened, and for all kinds of other violent person to person activity. For the sake of our discussion we'll stick to understanding what a split-second decision means to the police, what reasonable cause to shoot someone means, how a jury should understand the limits of applying split-second arguments, and how the split-second decision argument can be abused to subvert fact and justice.

And just to be sure none of this is misconstrued, we are not speaking about encounters in which officers are in hand to hand combat or being ambushed, situations in which shooting is already being exchanged, or when an officer otherwise find themselves in compromised or disadvantaged situations.   While split-second decisions may come into play, officers need do little more than act in self-defense.

What Does Split-second Mean in a Violent Police Encounter?

First let's disassociate the split-second decision from terms like quick-thinking or making snap-decision.  When the term split-second decision is used by law enforcement or legal defenses to explain the reason a police officer has shot a subject a number of very specific conditions must exist.  The most important of these conditions involved is what is the time the police officer has to decide to shoot-to-kill before the officer themselves are in danger of being shot?

Shooting to Kill Metrics

The following video explains the research that has been done over decades to inform police, courts, and juries of the arithmetic of a face-to-face, gun-to-gun, police to suspect standoff with both facing each other.

Disclaimer, at the end of this video there's some blue language and the narrator gets one detail wrong.  When he says the word liberal, the studies actually refer to anyone (liberal or conservative) who is educated. The more educated the slower the reaction time.  Even more specifically, anyone who sees life in absolute black and white terms is likely faster to make a decision one way or another.

What this fellow is describing is the scientific framework used to understand the last reasonable responsible moment to make a decision to shoot a suspect with the intention to immediately and conclusively incapacitate a subject.  This is almost always a shoot-to-kill decision.

The framework itself is called Observe, Orient, Decide, Act (OODA).  It is based on studies such as Reasonableness and Reaction Time. This study refers to an experiment that tested the reaction time of trained SWAT team officers who were past peak in reaction time to suspects in peak reaction  time condition holding a gun in a number of variations in a face-to-face confrontation 10 feet apart.

In other words, the study attempted to establish a baseline for the last responsible moment a police officer should wait before shooting and this baseline already builds in an edge condition that gives the Officer the benefit of the doubt when pulling the trigger.  The experiment involved 24 year old suspects who were modeled after the worst-case suspect who had already decided to shoot whoever they confronted, the officer was modeled after a 34-year old middle-aged, trained SWAT officers whose reaction times would be slower, and confrontation was close, direct, and unequivocal.  The study concluded (statements bolded are my embellishments);
"When the average reaction times of the police officers and suspects in our study were compared, they showed that police officers and suspects were taking about the same amount of time to fire. When the individual exchanges were examined, police officers fired at the same time or later than the suspect 61% of the time. Additionally, even in the situations where the officer was faster, there was less than a .2 s difference, suggesting that the suspect would still get a shot off in most of these encounters. The process of perceiving the suspect’s movement, interpreting the action, deciding on a response, and executing the response for the officer generally took longer than it took the suspect to execute the action of shooting, even though the officer already had his gun aimed at the suspect. Although our sample size is not large, our results are consistent with previous research and our general understanding of the reaction process (Brebner & Welford, 1980; Grossman & Christensen, 2004; Honig & Lewinski, 2008; Luce; 1986; Welchman et al., 2010). Completing all of the steps necessary to interpret a situation, select, and then execute a response simply tends to take longer than it takes to execute an already decided-upon action.
We did not find a significant difference in firing times or reaction times by gun position. Suspects with their guns down by their sides fired as quickly as suspects with their guns pointed at their heads, and officers reacted in the same amount of time in both situations. It would seem then, that from a mechanical point of view, both types of suspect are about equally dangerous."
The time that this mock worst case OODA encounter took is less than half a second. These results are not only accepted by the Policing community they are baselines for defining the reasonableness of Police incapacitating a suspect with a gun in a face-to-face situation.  There's no reason to quibble about the accuracy of studies like these.  They define a rule of thumb by which we (citizens, jurors, police) can agree provide a rule of thumb definition for further discussion.BBgun

The Rule of Thumb Criteria for a Reasonable Split-Second Decision to Lethally Incapacitate a Suspect

1. The suspect must be observably armed with a gun in hand.

2. A sole officer must have his gun drawn, ready to shoot at the body mass of the suspect.

3. The officer complies with laws and policies regarding fair warning to the suspect to drop the gun immediately, to freeze, or whatever other command the officer has issued AND the suspect does not comply.

4. While the distance between officer and suspect may vary it is irrelevant to making the split-second decision. The officer must anticipate the possibility that gunfire will be exchanged and the officer is right to shoot first and to shoot to incapacitate.

This criteria is an absolute minimum to establish reasonableness.  The officer shoots to incapacitate without needing to second guess the action. A suspect who is observed to have a gun in hand and changes position even with back to officer to obscure what is being done with the weapon remains an imminent threat to the sole officer.

As an aside, a suspect who is leaning on a rifle in a Walmart store with his back to a team of SWAT officers constitutes no imminent threat to engage the officers and justifying a split-second decision to use fatal force is not reasonable (here is where legal loopholes and fatal force creep contribute to obstruction of justice for the suspect and it is also where the local police policies and guidelines kick in). We'll discuss this in more detail below.

5. The age, gender, race, mental capacity, handicap status, or other distinguishing feature of the suspect is also irrelevant.  An officer observing a suspect with a gun who is not responding to immediate direct commands from the officer can and should be incapacitated to protect the officer and the ecosystem of people, property, and integrity of infrastructure.

As an aside, the shooting of the young boy (Tamir Rice) possessing a BB gun at a recreation center in Cleveland by the police officer in the drive-by confrontation is almost precisely a textbook example of the split-second decision reference model that the Reasonableness and Reaction Time experiments made their conclusions on.  The officer is put in a situation where he and his partner are face-to-face with a boy who is brandishing a gun.

In the case of Tamir Rice, the question that has to be asked is why was the confrontation at such close range necessary in the first place.  While this played out as a split-second decision, it was initiated by the officers themselves and not by the suspect. What possible good reason could there have been to engage the suspect at such close quarters?

The first part of the OOCA framework is to observe.  The boy is in the Gazebo with no one around him and he hasn't harmed a passerby.  The Police Chief when addressing the press spoke about the tactic of the drive-by as if the only concern was that the officers could have more safely killed the boy from a distance rather than putting themselves in danger. this is not atypical of the indifference to the rights and welfare of suspects authorities everywhere express.

The Police Officer's "Fear for My Life" Consideration

The Reasonableness and Reaction Time study that Police use as their source reference material for [rightfully] justifying the Benefit of the Doubt in shooting first when encountering a suspect with a gun also informs us of the danger that an officer can expect in such a face-to-face encounter (p. 355);

Suspects successfully shot the officer in 77 (50.3%) of the 153 coded exchanges. The suspects’ shots hit the officers in 34 of the 65 (52%) of the gun low scenarios and in 43 of the 88 (48.8%) gun high scenarios. This difference was not significant 
(χ2(1) = .177, p = .67).
The police officers successfully shot the suspect in 138 (88.5%) of the 156 coded trials. The officers hit in 75 of the 88 (85.2%) gun high trials and 63 of the 68 (92.6%) gun low trials. This difference was not significant (χ2(1) = 2.07, p = .15)."
This is important to note because the sole officer making the split-second decision in the worst case scenario has a 50/50 (rounded) chance of being shot while the suspect will likely be lethally shot 85% of the time  And when the suspect is making a move toward a weapon in this edge scenario the officer's hit rate moves into the nineties percentage-wise.

As we move away from that edge case, to add more observation time, more officers, and better police advantage we not only move away from split-second decision categorization of the encounter, we also must acknowledge that the suspect's chances of hitting an officer diminishes as the chances of the suspect holding a gun and being lethally incapacitated approach near certainty.

Officers who understand these statistical probabilities have an upper-hand even in highly stressful and split-second decision encounters. assuming personal recklessness for being overconfident doesn't kick in, fear of the suspect out in the open such as the boy in the Gazebo, the man in the WalMart, or the teen in Ferguson should be a minor consideration unless the encounter is far more complex situation.

Fear on the part of a police officer becomes even more incredulous when the suspect doesn't have a gun.  Officers often claim that "the suspect had a knife (or something that looked like a knife)".  Unless the suspect is in very close proximity it is hard to understand pleading a split-second decision or the use of lethal force needed to be made.

These fear arguments become more absurd in the public's mind as the alleged weapons turn out to be a bottle of cola as in the case of a mentally disabled man named Otto Zehm or in the case of a banana being pointed at an officer.

The Reasonableness and Reaction Time study also addresses this issue (bolded text my emphasis).

"Our findings have two implications for the reasonableness standard. First, the reasonableness standard is based on what a well-trained, prudent officer would do in a given situation. The current study informs the reasonableness standard by providing parameters for police officer performance when responding to armed suspects. Our results show that even well-trained officers, who are operating in nearly ideal circumstances, with their guns aimed at a suspect, cannot reasonably be expected to shoot before the suspect raises his or her gun and fires.
Second, the reasonableness standard considers the danger perceived by the officer at the time of the use of force. The current findings serve to illustrate the extreme danger that armed suspects present to police officers. Our findings show that even when a police officer has his or her gun aimed at a suspect and the suspect is not aiming at the police officer, the police officer is still in extreme danger.
The results reported here have two primary policy/training implications. First, the results highlight the extreme danger that armed suspects pose to police officers. Because officer involved shootings can be traumatic to both the officer and the public, training should focus on helping officers avoid the type of situation presented here.
Training should also teach officers how to mitigate the dangers posed by armed suspects. Distance and cover are generally considered to be an officer’s friend when dealing with armed suspects. More distance and/or cover reduce the ability of the suspect to fire accurately at the officer and thus the danger to the officer is reduced. This gives the officer more flexibility in his or her response.
Second, several of the officers who participated in the study indicated their intent to have new recruits in their agencies participate in scenarios similar to the one presented here. These officers indicated that participation in this type of scenario would give the new recruits a better understanding of the dynamics involved in this type of situation and help correct inaccurate beliefs about shooting ability. The officer–participants indicated that this improved understanding of deadly-force encounter dynamics could help save officer lives. We, therefore, suggest that police departments consider implementing the type of scenario presented here in their training programs."
"We do not believe that the findings presented in this article support the position of: “shoot everyone with a gun” or “shoot everyone with a gun who does not comply.” "

Indeed in researching this material, a recent incident concerning another boy playing with a toy gun and being shot by an officer was found.  In this case the officer, shot but did not kill the boy. Citizens and juries should expect this outcome more often than fatal shots being taken when there is a sole officer who has more time to react and when multiple officers have established a strategic advantage over a subject.

But if we are going to expect fewer accidental and mistaken suspect deaths, there needs to be a strategy built into the police training regimen.  In fact, it needs to be incorporated into the OODA framework itself.

The Marines ironically have succeeded in incorporating a more responsible behavioral modification that reduces the chances of accidental or emotionally fatal actions on the part of Marines.  In a LinkedIn article called "'Marines Don't Do That': Mastering The Split-Second Decision", Michael Wheeler describes a strategy;
"Imagine that you’re a British Marine commando in Afghanistan. Your unit comes  across an insurgent, badly wounded but unarmed. One of your fellow soldiers seething with rage, points his pistol at him and is poised to shoot. “Shuffle off this mortal coil,” he says. “It’s nothing you wouldn't do to us.”
You have mere seconds to act. You’re not close enough to restrain him. What would you say? 
If you weighed your options for more than an instant, time’s up. It’s too late. As it was for the others at the scene. Before they could act or speak, the angry soldier shot the defenseless captive at close range, then turned to his fellow commandos and said, “Obviously this doesn’t go anywhere, fellas. I just broke the Geneva Convention.”
But word did get out in the following days. The whole incident had been videoed by helmet cameras. (The grainy picture posted here is from that film.) The soldier was recently found guilty of murder, the first such conviction in Britain since World War II.
Handing down a life sentence, the judge said, “You treated that Afghan man with contempt and murdered him in cold blood. By doing so you have betrayed your corps . . . [and] potentially increased the risk of revenge attacks against your fellow service personnel.”
It was a tragedy all the way around. For the victim, most certainly. Also for the convicted soldier who had an otherwise unblemished service record. And likewise for the troops who witnessed the killing and anguish over what they might have done to prevent it.
There is no simple answer that would guarantee a different outcome, but some military experts believe that the murder might have been prevented if just one other person in that unit had the presence of mind to say four words: “Marines don’t do that.” Replay that short sentence in your head as if it were directed to you. Note that it does not include the words stop, order, or wrong. That omission makes the statement all the stronger. Its aim is to put the spotlight on the person, not the act.
“Marines” is the most important word. It comes first and works on two levels. It tells the soldier, “Remember who you are. Don’t renounce your identity.” Uttered by a fellow marine, it also says, “Your brothers are here with you.”
You may think I’m reading too much meaning into that sentence. When I came across an analysis of the incident by an ethicist, Paul Valley, I forwarded it to a former student of mine, Major David Dixon, recently retired from the US Marine Corps. David kindly gave me permission to quote his reply:
“Wow, this is extremely apropos. A few months ago I spoke at the University of Washington about how the Marine Corps teaches ethical decision making in situations exactly like this. . .. This is exactly what we teach: ‘Marines don't do that.’ Verbatim, it is in my PowerPoint slides.”
According to David, every US Marine received this training in 2012, from senior personnel to the most the most junior enlisted troops. It’s more than a technique or a tactic. Instead it’s an expression of a deep sense of values and responsibilities."
If Marines are taught an ethical basis for their split-second decision making then is it asking too much that American police officers incorporate similar standards of conduct?  Codes of conduct can supercede fear by instilling a much clearer sense of responsibility, proper conduct, and desired consequence in the individuals "doing their job."

A Police Officer's Racial Considerations; Weapons Bias

Unsurprisingly, Police Officers have been  studied to determine the effect a subject's race may play in an officer's exercise of duty.  In a study called Weapon Bias - Split-Second Decisions and Unintended Stereotyping by B. Keith Payne, we discover that racial bias does exist and it exists on a hierarchical basis.

The study first defines a concept called Weapons Bias (bolded text my emphasis);

"...we developed a laboratory task in which participants made visual discriminations between guns and harmless objects (hand tools). A human face flashed just before each object appeared: a black face on some trials, a white face on others (see Fig. 1). The task for participants was to ignore the faces and respond only to the objects (Payne, 2001).
There were two versions of the experiment. In one version, participants responded at their own pace. In the other version they had to respond within half a second on each trial. In the self-paced condition, accuracy was very high regardless of race. However, participants detected guns faster in the presence of a black face. This suggested that the black face readied people to detect a gun but did not distort their decisions.
In the snap-judgment condition, race shaped people’s mistakes. They falsely claimed to see a gun more often when the face was black than when it was white (Fig. 2). Under the pressure of a split-second decision, the readiness to see a weapon became an actual false claim of seeing a weapon.
These effects are not bound to the details of a particular experimental paradigm. Several independent lab groups have reported strikingly similar results using a variety of different procedures."
What is important here should be obvious. In split-second decision situations in which police officers are already trained to shoot first if a gun or imminent physical harm is present , race introduces a wildcard.  It is politically incorrect to admit that race is a factor and quite frankly such an admission opens the officers and their interests to legal entanglements and socially uncomfortable alibis.

This brings us back to our previous topic of why a law enforcement officer would claim they feared for their lives when so often in split-second decisions the advantage is overwhelmingly in their favor and there is no mistake about the job description before the job is taken - your life may be in danger.  But if we factor in this racial wildcard it is easier to make sense of such claims.  'Fear' is a code word for racial dissonance under pressure.

When an officer "sees" a gun in the hands of a suspect, uses lethal force to kill the suspect, and then realizes the suspect has no gun or was holding a banana or cellphone or some other silly item, the defense of such a fatal act is often rationalized as a mistake out of fear.  But from this study, we know that mistakes such as these are more often made when a black man is the suspect.

In fact, another study concludes;

"Police officers and students exhibit an apparent “hierarchy of bias” in making a split-second decision whether to shoot suspects who appear to be wielding a gun or, alternatively, a benign object like a cell phone, research conducted by the University of Colorado Boulder and San Diego State University has found.
Both the police and student subjects were most likely to shoot at blacks, then Hispanics, then whites and finally, in a case of what might be called a positive bias, Asians, researchers found.
In the first study of its kind, Joshua Correll, Bernadette Park and Charles M. Judd of CU-Boulder’s Department of Psychology and Neuroscience and Melody Sadler of San Diego State University examined how police and a group of undergraduate subjects decide whether to shoot or not to shoot “suspects” in a multi-ethnic environment."
It is worth mentioning that these studies find law enforcement personnel to be less biased than the general American public when making such split-second judgements.  This means legal cases that involve Bounty Hunters or property owners or home invasion victims may be even more likely to feel threatened by racial differences than police would have been.

Again, the split-second decision defense that is so ubiquitously applied to police shooting suspect cases becomes all the more complex and worthy of deeper understanding by law enforcement and trial jurors.

Even more interestingly, the Weapons Bias study that's cited previously recommends a behavioral modification to the OODA framework (bolded text my own emphasis);

"...the officers with the most firearms training showed the least race bias. This finding suggests that the routine training that officers receive may effectively reduce weapon bias. There is evidence that practice in identifying weapons may have beneficial effects on both controlled and automatic components of responses and that these benefits extend to police officer volunteers (Plant & Peruche, 2005; Plant, Peruche, & Butz, 2005).
Finally, a recent study shows that although people cannot simply will the weapon bias away, certain specific strategies may be able to eliminate the automatic component of the bias. Stewart and Payne (2006) had participants form simple plans that linked racial categories to specific counterstereotypic thoughts (Gollwitzer, 1999). For example, participants made the plan, ‘‘when I see a black face I will think ‘safe.’’’ Unlike participants who simply tried to avoid bias, those who formed specific plans showed no automatic race bias. Together, these studies offer clues to how and why specific strategies may succeed or fail."
In cases of wrongful death, the question of malfeasance on the part of Police Departments regarding weapons recognition training is obvious. An officer making a split-second decision will only be as responsible for his actions as the Department itself enables the officer to be.

The second recommendation should sound familiar. when officers introduce counterstereotypic thoughts into the OODA model to observe the weapon more carefully when black and Hispanic faces are the first thing they see, they become better law enforcement officers and less likely to make a mistake.  The fact that this exercise is practiced by the Marines as described earlier reinforces the integrity of the suggestion.

Third, there is something important here to learn about 911 calls.  In the case of Tamir Rice, the boy playing with a BB gun, the 911 agent who took the call very quickly asked the race of the person being reported.  Given what we just learned about Weapons Bias and the Hierarchy of Racial Bias it seems prudent that the 911 procedures and best practices come under new scrutiny to help clarify rather than exacerbate potential police encounters with suspects.

Obstructing Justice by Subverting the OODA Model

In examining the defense of using lethal force when confronting suspects, it is obvious that the split-second decision defense is often used for a number of reasons.

  1. It's imprinted through mass-media as a legal meme for officers to be given the benefit of the doubt in the shooting of suspects and taken for granted as such.
  2. It implies in personal terms that the immediate shooting involved almost no time to think.
  3. It dampens or obfuscates the broader issue of why a split-second decision was necessary almost by self-definition.
Yet within the framework of split-second decisions is the recognizable framework of OODA.  The integrity of the framework assumes that an officer will at least Observe the situation, Orient themselves to strategic advantage based on the observation, Decide whether or not to use lethal force, and then Act accordingly.

In many of the split-second decision cases in which suspects die there appears to be a short-circuiting of the OODA cycle.  Police officers often appear no to bother Observing and Orienting. A 911 call that involves firearms seems to trigger an a priori automatic decision that lethal force will be necessary and once on the scene perfunctory and obligatory legal necessities are performed hastily and an Act of violence is administered.

This short-circuit is resulting in suspects who are attempting to make sense of what is going on around them, maybe attempting to surrender or tell the officer they are not a threat, and as they do so, the officer who has not observed or oriented themselves either is shooting.

This is not an administration of Justice but an execution in which officers hide behind the rhetoric of justified action when the suspect in fact had no chance of being recognized as an innocent.

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