As was discussed in my column in July, there are correlations between the medical profession and law enforcement relative to saying “I’m sorry.”
Doctors and cops share the potential to cause harm to an individual that may be impetus to say “sorry.” Harm may be in the form of reduced quality of life for an individual, or an individual might die as a result of human error.
Officers make mistakes. Those mistakes may happen in a tense, uncertain, and rapidly evolving life-or-death situation. In these instances, officers will likely be protected under Graham v. Connor.
In Favor of ‘Sorry’
Numerous courts, subsequent to Graham, have found that officers acted appropriately based on the information at hand in real time. Based on the officers’ training and experience, they believed themselves to be facing a life-threatening action.
For example, in the case of the officer who shot and killed a teenager who was playing laser tag, the teenager had pointed a weapon with a laser at a police officer.
There is also the video of officers in Louisiana who engage a suspect who points what they believe is a gun at officers. The officers then justifiably use lethal force. It is later learned that the deceased pointed a cell phone in a manner to make the officers think that he was in possession of a firearm.
What would be wrong with the chief saying to both the community and family — in either or both of these cases — “We’re sorry this happened”?
The legal test and standards for use of force — up to and including lethal force — are clearly there to provide the officer(s) with the ability to lawfully and judiciously apply force. The review of the use of force occurs by a reasonable officer, from an objectively reasonable standard, based on the information that was known at the time the force was used. Not in retrospect.
It should be noted that if an officer acted lawfully, even if they apologize for what happened, the courts should not view the apology as mitigating any of the seminal holdings of Graham or Garner.
Moreover, state laws tend to protect doctors when they apologize — by logical extension, law enforcement should be covered similarly.
Barriers in Law Enforcement
Law enforcement officers by nature are suspicious of anything that causes change or a new way of thinking. In the police academy, rookies are told by trainers that you can be sued for anything; training officers continue to perpetuate this myth. More importantly, some use of force trainers provide poor advice on the legal holdings that protect officers in use of force situations. To be sure, officers can be sued for anything, but the likelihood of plaintiffs collecting any damages is low.
Administrators, managers, police chiefs, legal counsel, and insurers will not want officers to apologize for actions that caused harm.
Defense attorneys, and union reps, will not want officers to apologize, because it could potentially be used to formally punish an officer for violating a policy.
Police officials may view apologies as an admission of responsibility.
But I argue that you can express regret about a situation and still not have violated any law, policy, or legal holding.
More Research Needed
To my knowledge, no department, organization, or police group has allowed a researcher to conduct empirical research into this topic. Moreover, the likelihood of getting a good sample is slim. Perhaps a particularly progressive department might allow this research, but this opens up the department to outside review — and we know that organizations do not always greet this idea with glee.
Law enforcement is a dynamic profession. Officers work in a wide array of organizations, locations, and communities, but there are some constants. One of those constants is that officers will interact with the public. During some of those interactions, officers might use force.
“A ship in port is safe; but that is not what ships are built for.” Rear Admiral Grace Hopper said that about the Navy, but it applies to police work as well. Officers are not built to hang out at the station. Officers are expected to interact with the public, and interact with people who intend to commit harm to society.
We need to review ways to limit harm, and mitigate harm. One of those ways could be to potentially say these simple words: “I am sorry.”
Robbennolt, (2010) Apologies and Settlement 45 Court Rev. 76
Robbennolt, (2009) Apologies and Medical Error, 467 Clinical Orthopedics + Related Res. 376