Defining Consistency In An Inherently Inconsistent Profession.
Articles generate thought, thoughts provoke discussions, discussions catalyze
improvement. This commentary highlights some points from the article, “Pondering Past
Practice: Why Consistency Is So Important in Decision-Making.” (Graham, 2021) linked
below.
Focus of this article:
I believe the core subject of the cited article is focused on non-violent or non-dynamic
issues that have parameters established in policy and procedure. For instance, protocols in handling a sensitive human resources complaint, etc… However, what compels me to write this article is the following statement at the beginning of the cited article; “As I look at the tragedies and other negative outcomes involving public safety activities and look for what caused them, I am often drawn to bad decisions made by the involved employee.” This statement lured me into the current false narrative being generated
through social media, and those that would have the police defunded. Gordon Graham
did however spawn thinking points that I feel are very important in the current
environment. This article is to clarify the sometimes overlooked investigative protocols of a critical incident, identifying decision points in the actions of the officer involved and the investigator.
Considering the checklist in the cited article, consistency in a critical incident is often lost in the unpredictable actions of others and the infinite number of possible responses by the officer.
Consider this point; are departments with a focus on well thought out and consistent
training programs immune from tragic or real or perceived bad outcomes?
I spend much of my time reviewing and analyzing officer involved critical incidents,
studying, and researching decision-making in the law enforcement setting. In the
numerous cases that I have reviewed or conducted an investigative analysis on, less than 2% of those cases were bad decisions by law enforcement. Those incidents may have resulted in perceived bad outcomes; however, in most cases, the outcome was through
no fault of the officer or the policy. And in retrospect, no policy or procedure would have
prevented or changed the outcome. Considering also, that once the narrative is established (by the media or other source), the perception of the bad outcome is set in “media stone,” regardless of the reality of the event. Those involved in the investigative process have no control of the dissemination of information and more importantly the interpretation of the information that has been released.
Example Incident:
This “example” incident was a quintessential case of a rapidly evolving, tense, uncertain
and critically dangerous incident for the public and for the officers involved. Overview: A
subject was carjacked and taken hostage, the officer was fired upon during a high-speed
pursuit, crescendoing in an accident with a civilian driver in a busy intersection, with the
subject fleeing towards other drivers and a populated area. After an extensive investigation all investigative entities cleared the officer of any wrongdoing both criminally and administratively (policy violations). The internal adjudicating party (decision-maker), a deputy chief, stated in the internal adjudication memo after all others tasked with recommendations had opined – “the officer made decisions based on what could have happened, not what actually happened.”
The Deputy Chief subsequently sustained findings of unnecessary, and excessive use-of-force by the officer. Remember, this decision was made in conflict with all other individuals with specialized knowledge in the opinion chain. A comment from command
staff, “we’re no longer going to hide behind case-law.” What does this even mean? This
sustained finding will undoubtedly be viewed as an unreasonable use-of-force in a Fourth Amendment claim against the officer and the department. Note: rank is not expertise, great leaders understand this and acknowledge and respect the specialized training and
knowledge of those around them.
Consider that policy changes and training often occur in the post event cycle of a critical
event. Although improvement is paramount and should always be the goal, to consider
past practice to formulate consistency in unique task environments could be a fragile and potentially erroneous pathway to improvement. The question is, how do we achieve any form of consistency through policy or procedures in a critical incident when the events are extremely complex and sometimes chaotic, rot with decision points? Especially those policies regarding or associated with Use-of-Force.
Consistency Checklist
In the referenced article there is a checklist that represents decision-points most commonly present in events where there is a closed-loop, feedback based and optimal decision-making environment (where discretionary time is available).
Where there is time to contemplate the decision process, consistency can be more clearly defined and is
significant in maintaining uniformity in some of the more linear and non-emergency
processes or conditions.
However, most high-profile critical incidents are not incidents where time and space are available in the decision-making process for the involved officer. These tragic incidents
or bad outcome events are more commonly a visceral cognitive process that bears infinite outcome possibilities, in short, they are complex and, in some cases, chaotic.
Additionally, the judgment of the officer’s actions is often outcome based and in hindsight, not being judged from an officer’s intuitive perspective, but rather from the analytical perspective after the fact.
The first decision-point in this checklist is “Identify and clarify the issue. If it is a preservation-of-life event, act immediately (#8). Short of that, identify what needs to be decided.” Decision-point number 1 jumps directly to point number 8. (#8) “Make and implement your decision. Remember it is not too late to go back to #1 to make sure you are still headed in the right direction.” Point number 1 quantifies time compression in a critical incident and point number 8 quantifies the assessment phase where officers are continually assessing the scenario, looking for a change in the behavior of the suspect. The officer is expected to justify every decision where use-of-force was applied if the incident required it (force). In these critical incidents the decisions, actions and results are not happening in a silo. Under time compression decisions are made with incomplete or changing information and, in some cases, inaccurate information.
In many cases on which I have consulted, I frequently see the effects of hindsight
attribution guiding the reviewer’s determinations using factual data that could not have been known to the officer. In the example case, it was determined in hindsight by the decision-maker that “preservation of life” (self or others) was “partially” inappropriate based on the totality of facts and circumstances learned after the event.
In the example, investigators learned that the suspect was not armed at the time the
officer used deadly force, however, contextually the officer believed the suspect to be armed. The question is or should have been, “was it reasonable for the officer to have this belief?” This analysis must be made on the info reasonably perceived and believed by the officer at the moment he/she reached the force decision, not on the outcome and the facts known after the investigation. Understanding the officer’s perspective is the only path to a deep comprehension of what the officer believed was occurring and why.
When it is discovered why, only then can decision-makers reach valid conclusions
incorporating all other available evidence to determine whether or not the officer’s belief was “reasonable” from a Fourth Amendment perspective. This gives much more emphasis to point #9.
The Report, Interview and Statement
Point number 9 – “Document as necessary why you did what you did.” In a critical
incident, where the officer used a level of force that resulted in substantial bodily harm or death, a report is commonly completed by an investigator and not the officer involved. However, this puts no less importance on the need to document WHY an officer did what they did. By putting the importance on why, as emphasized in point #9, decision-makers are likely to establish a richer picture of the officer’s decision, actions, and the outcome.
The entire point of my perspective on the cited article is to highlight the fact that
navigating the investigative/interview process can be challenging under the best of
circumstances. Challenging in the sense that even though the checklist skips to point number 8 by way of decision-making, reviewers and adjudicators do not skip to point number8.
In many of the cases I have seen, adjudicators still apply those points as if the
officer could have, should have or would have known “if”, based on the adjudicator’s
outcome-based biases.
An investigation, analysis, or internal adjudication of a critical event should be thoughtful from an organizational perspective and as objective as possible through the investigative process. Gathering factual data is the focus; the interview process must be conducted with deep communication skills, i.e., thoughtful open-ended questions, and deep open-minded listening.
The interview should be conducted with an understanding of human factors,
performance issues, memory, human limitations, and complexity of the evidence.
Considering this, investigators are more apt to gather “honest” perceptions; meaning, what the officer truly believed was occurring and what subjective information was driving the officer’s decision-making process. Remember, the standard is “the totality of the facts and circumstances known to or reasonably perceived by the officer at the time of the decision” not the totality of facts and circumstances known to the investigator or of interest to the investigator after the fact. Post-incident investigation may reveal that the officer’s perceptions were correct, or that they may have been inaccurate.
This does not necessarily mean the officer is being dishonest. Volumes of incontrovertible human factors and decision-making research –performed in jet fighter cockpits, industrial machine operation, vehicle operation, etc. – teaches that this is the nature of making decisions based on incomplete data under extreme time constraints and consequences and amid wicked problems. At the core of this lies human factors, performance, and limitations of the officer and the evidence being gathered and reviewed in hindsight.
Points 2 – 7
All too often the review and adjudication processes are affected by the predispositions of those involved in the internal process after the fact. Points #2 – #7 literally cannot be considered by the officer involved under the compression of time. However, in many cases, during the internal review process, points #2 through #7 inevitably become a part of the analysis process primarily due to hindsight attribution. Once we understand why the officer did what he or she did, only then can determinations be made regarding the reasonableness of an officer’s actions, this is the foundation of the calculus for objective reasonableness.
Point number 10 – “If you learned something new, share it with your peers.” One of the primary goals of the investigation and the internal review and analysis should be to identify any valuable lessons learned. Even in the case where discipline is appropriate, the opportunity to educate and train officers cannot be overlooked, especially in critical incidents. Every event should be reviewed, analyzed, and restated through the department in some form of training.
Consider these thinking points:
• Should policy be used as a measure of performance in a critical incident?
• Should any department rely on policy to prevent bad or tragic outcomes?
• Does policy actually guide decisions and create safety in critical incidents?
• Does training and experience manifest improvement?
• Does training prevent bad or undesirable outcomes?
• Are departments with a focus on well thought out and consistent training programs immune from tragic or real or perceived bad outcomes?
These are thinking points, not simply “yes or no” questions; give them deep thought and analyze how policy and training is applied in law enforcement today. If the answer is yes or if it is no, define why the answer is what it is to you and begin a cultural shift. These points of contemplation are important in establishing a trustworthy culture within the department, from the top down and the bottom up.
I am involved in discussions with CIR’s lead instructor, Dr. Paul Taylor and other colleagues regarding this subject matter regularly, all of us should be having these conversations. Struggles with the subject of policy and how it is implemented is ongoing, policies and procedures are often blurred regarding the vast landscape of decision-making in an illusory event.
Policy is a multi-faceted instrument that requires extreme thoughtfulness in its creation, its intended use, and its overall application before and after the fact. policy is often an ideology based on past events, not knowledge of the outcome of future events, where prediction is a fallacy in critical incident.
Consider these issues as we all move forward together in this profession. Law enforcement is not a safe profession, and policy cannot be relied upon to make the profession safe. Law enforcement is complex and often chaotic, not consistent, and no document created will ever change this fact. Food for thought, bon appetite!
https://www.lexipol.com/resources/blog/pondering-past-practice-why-consistency-is-so-
important-in-decision-making/
Get the .pdf of this article.
Prepared by:
Sergeant Jamie Borden (Ret.)
CIR® Founder / Owner
