To participate in police-reform discussions, it’s helpful to appreciate the multiple incentives driving the movement. Some believe that the police are members of a racist system and that violent criminals are merely responding to years of systemic oppression. Others believe that the police provoke violence or simply don’t do enough to avoid it. In either case, activists are proposing reforms to hold police “accountable.”
In this article, we’ll look at how some reform proposals are attempting to shift responsibility for violence from the offender to the officer, and how police professionals might inadvertently support this agenda if they don’t carefully distinguish “tactical uncertainty” from “officer-created jeopardy.”
To begin, let’s review what is meant by “jeopardy” and “tactical uncertainty.”
Threat Assessments and Jeopardy
When police conduct threat assessments, they often evaluate whether a person has the intent, ability, means, and opportunity to inflict harm.1 This review is not a legal requirement but has proven a useful framework to identify and influence potential threats.
Within this framework, officers are not expected to read minds or prove threats beyond a reasonable doubt. Instead, when officers have probable cause to believe a person has the intent, ability, means, and opportunity to inflict harm, “jeopardy” is said to exist.2 If the threatened harm is certain to occur unless someone intervenes, we call that “imminent jeopardy.”3
An officer’s real-time threat assessments are nothing more than “educated guesses,” or, if you prefer, educated judgments. They are reasonable beliefs informed by training, education, and experience. Incomplete information and intentional deception make it difficult to achieve a high level of certainty in these judgments. As such, perfection can never be the standard, and reasonable people can always disagree.
Like threat assessments, the actions (“tactics”) that officers take to manage threats are also educated judgments intended to influence the conditions leading to jeopardy. For example, containment can prevent someone from accessing weapons (means). Distance and cover can deny someone the opportunity to use weapons. Handcuffs or other physical restraints can reduce a person’s ability to inflict harm, while effective communication and de-escalation may dissuade someone from forming or maintaining bad intent.
Although tactical decisions can certainly prevent jeopardy, they are always based on imperfect predictions. Too much distance, and the suspect may run. Too close, and they may attack. Make physical contact too late, and the suspect might hurt people. Too soon, and you may have missed a chance to de-escalate.
Tactical uncertainty always surrounds threat assessments and responses. It is amplified by frequent information updates, competing government interests, and the fact that the suspect always gets a vote.
Those familiar with “street-level” police work universally understand the impact of tactical uncertainty. However, not all reform proposals appear to consider the often-split-second judgments and competing interests that officers face. Proposals that advocate “accountability” for “officer-created jeopardy” deserve careful scrutiny.
In policing, the idea that officers can influence jeopardy is not particularly new. “After-action reviews” and training frequently address how tactical decisions can (or did) influence the intent, ability, means, or opportunity of the suspect.
Although frequently couched in terms of “officer-created jeopardy,” these reviews aren’t intended to blame officers for the decisions and actions of suspects. Instead, they identify strategies and tactics for officer-safety, that might simultaneously save suspects from the consequences of their own intended conduct.
Well-run tactical reviews encourage radical honesty as officers think critically about their decisions and performance. These shared experiences increase tactical options, improve decision-making, and help officers avoid repeating ineffective tactics. Equally important, after-action reviews allow supervisors to identify and limit when otherwise lawful police conduct may not align with the current agency or community priorities. Avoiding armed confrontations with people who are only threatening themselves comes to mind.
Expanding “Officer-Created Jeopardy”
If the evaluation of discretionary (and lawful) police conduct were limited to “no fault, no blame” reviews, there would be little concern. However, some reform proposals would radically expand liability for “officer-created jeopardy” by second-guessing any tactical decision that might increase the risk of a deadly confrontation.
Courts have been reluctant to embrace the “officer-created jeopardy” theory, in part because the Supreme Court directs that use of force decisions should not be viewed with the benefit of hindsight. Currently, some courts limit use-of-force assessments to the moment the officer used force. Other courts take a broader view and will consider an officer’s “pre-seizure” tactical decisions as part of the “totality of the circumstances test.”
There is evidence that the Supreme Court would decide the narrow view of use-of-force assessments; however, police reform advocates are not waiting for the Court to settle this issue. Instead, they are lobbying state legislatures, attorney generals, and agencies to pass laws and policies that impose “elevated” use of force requirements and expressly authorize consideration of an officer’s pre-force conduct.
Officer-Created Jeopardy 2.0
If the intent is to hold officers accountable for tactical decisions, it would seem a limiting principle should be identified. (Since merely showing up to confront an armed suspect increases the risk of a deadly confrontation.)
To address this concern, some proposals attempt to limit liability to only those decisions that were “reckless,” “unnecessary,” “unsound,” “needless,” “avoidable,” or “unjustified.”
Since officers have been operating under a “reasonableness” standard, it isn’t clear how these new qualifying terms will be defined or applied. More importantly, it isn’t clear who gets to decide that an otherwise legal and discretionary tactical decision was “unnecessary.”
When these issues arise in judicial or quasi-judicial settings, officers have the advantage of police practices and use of force experts to educate the decision-makers. However, by inserting “officer-created jeopardy” provisions into state criminal law or agency policy, progressive prosecutors and civilian review boards with anti-police bias can conceivably bypass the courts and the experts.
When the evaluation of deadly force encounters is left to people unfamiliar with human performance, police practices, or critical incident decision-making, officers risk discipline, termination, and even indictment on a single unqualified opinion that a tactical decision was “needless” or “unnecessary.”
Even assuming that anti-police bias can be set aside, many of the “officer-created jeopardy” reforms endorse the “20/20” hindsight that the Supreme Court has expressly rejected. These reforms presume a level of predictability and certainty that rarely exists and will expose officers to judgments heavily influenced by outcome bias.4
Like reform proposals generally, proposals that advocate expanding “officer-created jeopardy” are born of mixed motives.
It’s hard to complain when a defense attorney argues on behalf of their client that an officer’s tactical decisions, their “failure to de-escalate,” or even their “aggressive” uniforms provoked their clients to violence. This type of zealous advocacy is expected and can be tested in court.
More curious and concerning are the arguments that an officer’s tactics not only provoke criminals, they literally cause criminals to break the law. Not just attorneys, but academics are now arguing that, if an officer stands in front of a stationary car, they don’t just create the opportunity for an assault, they cause the driver to accelerate into the officer. If an officer fails to wait for back-up, they cause the suspect to fight. Leaving a position of cover or chasing an armed suspect causes the suspect to shoot. In each of these cases, it is argued that the officer should be liable for “creating the jeopardy.”
This type of liability shifting – from suspect to officer – is an expansion of “officer-created jeopardy” that imagines suspects have no control of their conduct, it ignores tactical uncertainty, and creates opportunities for second-guessing that are limited only by the reviewer’s creativity.
- Some experts combine ability (physical ability) and means (weapons or other instruments) into “capability” and describe jeopardy as the opportunity, capability, and intent to cause harm. Others avoid the intent element out of concern that opposing attorneys will accuse them of “mind reading.” These same experts might instead use the “AOJ” structure and focus on ability, opportunity, and jeopardy, in which they define jeopardy “as actions that would lead a reasonable person to conclude that the suspect intended to cause death or great bodily harm.” Under this definition, the imminent jeopardy analysis is being specifically applied to deadly force assessments and intent is addressed in their working definition of “jeopardy.” [↩]
- “Jeopardy” simply means “danger” or “risk of some harm.” The intent, ability, means, and opportunity analysis is not limited to deadly threats and can be applied when analyzing threats against any government interest (e.g. property crime, simple battery, obstruction). [↩]
- Courts might distinguish imminent threats from actual threats. Where a person is involved in an overt act that creates a present risk of harm, the absence of specific intent to commit that harm may not be sufficient to extinguish the jeopardy. Consider reckless drivers who force other drivers into a ditch. Also imagine that people experiencing delusions may not intend the dangerousness of their conduct and yet it can be no less dangerous and require immediate intervention. [↩]
- Outcome bias is an error made in evaluating a decision when the outcome of that decision is already known. [↩]
Re: articulating intent as a form of “mind reading.” I’ve been accused in the past by plaintiffs’ attorneys of attempting to read the mind of the plaintiff by opining what the plaintiff’s “intent” was. I now phrase it as “apparent intent” or “the officer’s perceived intent.” Describing it as apparent intent or perceived intent is not about what the suspect was actually intending. Rather it was a reasonable reading of the suspect’s actions, statements, and behavior by the officer who then acted upon that reasonable belief in responding with force.
If suspects or folks in general would cooperate with the police, contacts would go a hell of a lot better.
But with most, that won’t happen
I look forward to the day in which the ROE (rules of engagement) are improved to promote the safety of all involved. It makes no sense to me that a LEO would roll up to a potential point of contact and try to assess intent. If the ‘suspect’ is unwilling to come forward and express his concerns in a non-violent manner and no 3rd party is at risk that’s one scenario. All other scenarios should offer the suspect an ‘opportunity’ to cooperate or SWAT. Period. SWAT is for any suspect who places others at risk in any way. I’m a former US Marine, practicing physician and student of deescalation. I’ve dealt with a half dozen ‘acute psychosis’ (drug and organic) challengers in the ER and hospital wards. I have studied deescalation with the most informed SMEs, include the GST system in which I am an instructor. No-one, should be given the opportunity to place others at risk as a matter of preference. The ROE for LEOs must change.
Law Enforcement (LE) does not operate under Rules of Engagement (ROE); LE operates under Use of Force guidelines. The two concepts are fundamentally different. De-escalation is preferable, especially for us walruses that don’t heal up as quickly as a young rookie, but after 25 years of service in LE, I can state with some certainty that Murphy is alive and well and as was stated in the article, the suspect always gets a vote. An LEO can do everything right and the suspect can still decide that it’s fight time. When that happens, the old axiom “better to be tried by twelve than carried by six” attaches.
Greetings, I hope all is well with you.
I daresay your comment has evoked a need within me to respond to your thoughts. I will say outright that I do dabble in the art of sarcasm. It’s all good natured of course. I have a question for you. Since you seem to think that police seem to prefer putting others at risk, and you claim to know better, then….
If your such the expert, why withhold your name? A total of six “acute phychosis” cases, wow. Impressive. That’s almost seven! Too bad this isn’t the wide wide world of sports.
On a serious note, perhaps you should focus on the issues facing your own profession?
According to the American Medical Association up to 225,000 people per year die of medical malpractice. 12,000 from unnecessary surgery, 7,000 from medication errors, 20,000 from other errors in hospitals, 80,000 from infections and last but not least 106,000 from adverse medication effects. The average number of medical malpractice lawsuits per year is 85,000 cases.
But sure Mr. instructor, tell cops they need to change their “ROE.” The basis for which by the way are based on suspect actions… but why do facts matter? Meanwhile the numbers of citizens killed by police, the vast majority of which are justified for the last four years average around 1,000 people. So just for the heck of it lets take 2015, Bureau of justice statistics estimate the number of police citizen contacts for that year as 53,469,300 out of 321,418,820 persons in the U.S. Police used lethal force 1104 times that year, again the vast majority legally justified. The rate of use of lethal force when judged against the total of police encounters would be 0.0000206473% And that statistic is fairly stable from year to year.
Lets see, chance of getting bit by a dog 1 in 50, hit by lightening? 1 in 13,000, Car crash 1 in 366, dying from that car crash 1 in 106, getting syphilis? 1 in 2,200. Meanwhile Medical malpractice has been cited as the 3rd leading cause of death in the nation killing only slightly less than heart disease or cancer.
So your thought’s while I’m sure they are well-intentioned heartfelt and sincere, are basically utter nonsense and perhaps inadvertently disrespectful.
I for one look forward to the day when an understanding of reality and intelligence makes it’s way back the main stream thought process, before people speak. My apologies to the health care professionals out there that DO NOT suffer from cranial rectal inversion.
I am not aware of any LE protocols that do not promote the welfare and safety of all parties in an arrest scenario. Force by LEOs is a low-frequency event, as all of the statistics indicate. Absent clear misconduct, if the suspect–even the cop killer or serial murderer–complies with the lawful orders of the arresting officer(s), a no-incident arrest (no force) takes place. When non-compliant, the movement of law and training in the last 20 years at least has been convince the suspect to comply, and that direction is intensifying. When the suspect is non-compliant and threatening, it is more likely the officer(s) will respond with force where injuries or death may occur. When responding with force, that force must be proportional (“objectively reasonable”) within the context of the incident (“the totality of the facts known to the officer at the time”). The idea that SWAT teams should roll on every call where there is an uncooperative, potentially threatening suspect or situation is unrealistic, not only for the sheer number of SWAT units every shift in every city and town would require to be available, but the assumption that a specialized team of officers on-scene would dissuade suspects from their irrational and threatening behavior necessitating force to take them into custody. The clinical de-escalation of a known patient who is unarmed and, while possibly a risk of assaulting staff, is not comparable to the uncontrolled environment of unknown suspect who is unsearched and possibly armed confronting officers. The assumption that officers are permitted “the opportunity to place others at risk as a matter of preference” is uninformed–it assumes officer seek opportunities, engineering schemes in order harm people, and that suspects have no responsibility for their own safety through compliance. Suspects place others and themselves at risk when they commit their crimes and then resist arrest through threatening and violent means. When officers reasonably respond with force, it is based on the suspect’s actions and choice. When this is case, the suspect is the architect of the incident and the result.
Just to add a couple of pesos from me to the on point responses so far:
1. “Studying de-escalation with SMEs” is NOT the same as going out and doing it, shift after shift – not even close.
2. I have never been a Marine so I know better than to tell Marines how to Marine. I have never been a doctor so I know better than to tell doctors how to doctor. Doubtful you’ll get the message, but I just wanted to point that out.
3. GST? BFD. Never had the privilege of training with Rener or Ryron but have at least one good friend that helps them teach GST in Torrance (non-COVID times). I appreciate the Gracie’s support of LE but a LOT of their stuff, especially in their YouTube breakdowns, IMO is straight up marketing for GST/BJJ. I’ve trained in a variety of MA/MMA/DTAC/ETC systems for almost 40 years and have yet to find or even hear about a system/school/style that had all the answers, especially for LE work (and yes, GST/BJJ does NOT have all the answers). Btw, Rener and Ryron, having trained “a few” LEOs and possibly have gone on a ride along or two, have as much standing to dictate how LEOs “should” do their jobs as much as me, having been casually rolling since 2000, telling them how to train or teach BJJ or how to run the Gracie Academy. Period.
Also fwiw, most of the best partners I’ve had in my 23 years OTJ here in So Cal have been former military – common denominator, no chips on their shoulders.
Very good article Von. If Police Leaders and advocates sit back while federal and state anti police legislators promote this biased philosophy while never having faced instant or imminent jeopardy, then it is on them when these anti police views become law. Mike Callahan SSA/CDC FBI (Ret)
Dr. Name Withheld: Being a Marine and MD has nothing to do with making tactical decisions in an LE setting. You’ve proved this by referencing ROE. ROE is a military term that has no place in LE. LE in the US apply constitutional use of force. There are no ROE for cops.
1/2 a dozen pooh-flingers? I laughed so hard I think I injured myself. Doctors and nurses kill an estimated 250k patients per year in the the US through errors. Cops illegally kill 15-20 per year out of millions of contacts. Irony.
I am female with over 34 years LE and 28 of that in direct street patrol work in a city called the murder capital of our state. People that haven’t been in my shoes have no idea what really occurs out there. There are many factors but two of the worst recent I’ve seen are 1. “It’s not my fault for what I did”. I grew up in the era that we were responsible for our own actions. There have been only a small percentage of times I’ve seen where truly, the person was not responsible for his or her actions.
2. There’s a term for people that try to make or provoke a situation to the point that they can financially benefit – without going too far (risking injury but not a worse outcome). People in my area talk about what amount of money they’d get out of a K9 bite or other LE situations where they’d just be paid off rather than take an agency to court.
I know it’s different depending on where you work, but most of my people knew me in my area and knew I was fair and helpful. However, it’s now a highly mobile society and you never know what you will encounter. I’m just glad I’m retiring soon, because I would not have chosen this career if I was facing what’s going on now.
Patrick, let’s add to that comparison. LEO’s are frequently charged criminally for an unintended death. This is often blamed on positional asphyxia or restraint asphyxia, even though those theories have been widely disproven. When was the last time you saw a medical doctor criminally charged even after proof of a negligent (though unintended) mistake that caused a death? BTW, where did you get that cops “illegally” kill 15-20 per year? That might be accurate but just curious.
Von has yet again done a fantastic job of eloquently explaining the realities of human conflict. While some police reformists believe they can regulate and legislate officers into a world where there are never any negative outcomes, they fail to account for the fact that “the suspect gets a vote”. The suspect selects a course of action which the officer is then forced to react to. More troubling, and also often ignored, is the fact that the suspect may quite literally be unable to comply because of contaminated thought. So long as there continue to be suspect/officer interactions, some suspects will continue to resist. Police officer will never have the super-human power to control other’s behavior. While we can all hope for rosy outcomes, and we can continue to reform training and practices, we have to be realistic about what is possible. Simply creating new laws to penalize police officers won’t do it.
Thank you Von and the folks at FSI for your continued efforts to be a level head in the police reform debate.
[…] a former officer and a lawyer with a police training company called the Force Science Institute, wrote in a recent essay that penalizing the police for officer-created jeopardy absolves the suspect of responsibility, […]