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The less lethal philosophy & barricades involving the mentally ill
by PoliceOne.com Columnist Major Steve Ijames
Sponsored by TASER
This is a less lethal column, and as such some might wonder why I’m writing this month about barricaded subjects. Less lethal force is defined in the International Association of Chiefs of Police (IACP) Instructor/Trainer Programs as, “a concept of planning and force application that meets operational objectives, with less potential for causing death or serious injury than a conventional police response.” Reduce that to plain English and it means getting the job done, with less chance of anyone getting hurt. Nothing wrong with that, especially when you consider the poor track record law enforcement has recently had with barricaded mentally ill subjects, specifically as it relates to correctly defining “getting the job done”.
Toss out the term barricade and most folks think of heavily armed robbers and murderers taking a stronghold position in a fortified structure and defying all attempts at rooting them out. In reality, barricades involving such “real” criminals are not that common, especially when compared to the time we spend on those involving mentally ill, self-destructive and suicidal subjects.
From an overly simplistic perspective, the primary roll of the first responders to a barricade call generally involves the following:
• Establish an inner and outer perimeter.
• Prepare contingency plans to address the potential suspect actions, including armed, non-assaultive “walkout” type scenarios.
• Evacuate residents based on the potential threats presented.
• If properly trained, staffed, and equipped, invite (via telephone or loud hailer) the suspect to exit and surrender.
• If the verbal effort is inappropriate or unsuccessful, notify higher authority and tactical/negotiation resources.
• Establish a command post and location for arriving officers.
When the SWAT/negotiations components arrive, the basic resolution effort will involve:
1. Talk him out.
This is the most desirable option, and accomplishes the primary mission objective through negotiated efforts.
2. Force him out.
This is a less desirable option because it requires more intrusive and confrontational tactics than negotiations. This often involves chemical munitions and the inherent challenges that come with them. It is important to note that in circumstances where removing the subject from the structure is an absolute necessity, chemical agents are almost always a part of option #2, and a prerequisite to option #3.
3. Take him out.
This is the least desirable option, and puts the officers at a significant tactical disadvantage as they must enter the suspects’ stronghold without the element of surprise. This tactic should only be considered in circumstances where the need to take the subject into custody can be reasonably balanced with the risks involved. This is a dangerous tactic, but one that is used appropriately and successfully thousands of times each year.
Simple enough, but at what point do we critically examine the following questions?
1. Why exactly are we here and what legal basis exists for further government intervention?
2. What is our primary mission objective?
3. What is the right thing to do as it relates to pushing the tactical envelope and forcing a confrontation with the person inside, especially if that person is affected by certain types of mental illness. Paranoid Schizophrenics for example are often afraid of uniformed police officers. As a result, there is an elevated possibility that contact between law enforcement and the suspect will result in a violent encounter.
I’m not suggesting that we stop doing our jobs. I’m just suggesting that we recognize how frequently law enforcement barricades involving the mentally ill turn into runaway trains, which ultimately crash head-on into fatal tragedy. Unfortunately for those involved, the most heavily weighted factor influencing post event findings will often be the outcome of the event itself. If nothing bad happened, the majority of agencies will give the crisis site performance a “thumbs up”, regardless of whether the right decisions were made. If things didn’t work out so well, thumb position often waivers as it seeks a community, civil, and political tipping point.
It is important to note that “outcome” is perhaps the worst possible criteria upon which to judge officer performance, since they truly have so little to do with controlling it. Officers control only their process, and should be judged accordingly. Suffice it say that good process almost always yields good outcomes, but even the best laid plans can go south on you. That’s why from a truly less lethal perspective (see the definition above), we have to insert objective criteria for examining the surround and call out situations we find ourselves facing today, and ask some hard questions concerning the logic in forcing a police dominated outcome.
The courts have strongly suggested that police consider a subject’s mental condition when making certain use-of-force and police intervention decisions, specifically those that might escalate the situation:
• “We acknowledge that a suspect's apparent mental state is one of the facts and circumstances of the particular case that should be considered in weighing an excessive force claim” .
• “Officers should have known that the manner in which they approached the decedent would escalate the confrontation, and the officer’s treatment of the situation-combined with their statements that a mentally ill person should be treated as any other person, regardless of the situation, indicates that the police department’s training dealing with the mentally ill falls well below the reasonable standard of contemporary care.”
This is not to suggest that the officers did anything wrong, just that the issues are being raised, and some courts are listening. Independent of that, I believe we have a moral obligation to train and prepare our officers for barricades involving the mentally ill and ensure that we do not contribute to an unnecessary and avoidable officer/suspect encounter.
Upon completing the initial stabilization process, the incident commander should gather information from those having first hand knowledge of what has occurred. Numerous barricades have been run based on an operational premise that later turned out to be false. As the premise goes, so does the justification for police intervention. True facts must be obtained, then communicated to the team leader for consideration and feedback, with further dissemination to the operators on the line. The tactical and negotiation supervisors are then tasked with formulating an initial operational strategy based on the information known at present, while the incident commander reduces the information to writing for analysis and the creation of an in depth plan of action if supported by the facts.
Lee Iaccocca says, “In conversation you can get away with all kinds of vagueness and nonsense, often without realizing it. But there’s something about putting your thoughts on paper that forces you to get down to specifics. That way it’s harder to deceive yourself, or anybody else” .
Analysis, in the most literal sense, means “things to dissolve” and is the process of dissecting or taking apart an issue or event. The incident commander must analyze and evaluate the ongoing problem and separate what is known to be true from the unknown, feared, and presumed. All of these factors are reduced to their critical elements, resulting in the clearest possible picture of the problem.
Primary Mission Objective
Upon analyzing all available information, the incident commander must identify the primary mission objective. This goes beyond the initial recognition of the problem, which occurred shortly after arrival on the scene and was based on the “reasonable appearance” presented by the limited facts known at that time. For example, the initial call may have been a mentally ill suicidal subject armed with a rifle, barricaded alone in his home, and threatening to go mobile. Subsequent investigation and analysis reveals that:
• The subject is alone, and does in fact refuse to exit and speak with officers.
• He hasn’t committed any crime--or threatened to.
• He called a mental health hotline and said that he was very depressed.
• The call taker asked about weapons, and the man said that he had a .22 rifle in the closet.
• When asked about what he planned to do, he said he needed to get out of the house, and would likely go to his mother.
Same basic information, but it takes on a dramatically different operational perspective once the facts are known and the situation is digested and analyzed. In the first scenario, the primary mission would have been focused on protecting the residents of the neighborhood by way of:
• Containment of the subject to his residence.
• Evacuation/limiting the neighbor’s exposure to the rifle.
• Ensuring that immediate action plans are in place, anticipating an exit with the weapon.
• Movement towards custody and treatment.
In the second scenario, absent additional information suggesting the individual presents a legitimate and immediate threat to himself or others, the options beyond leaving would be rather limited. Unfortunately, leaving is a very hard thing for most agencies to do. The argument behind staying is sincere and impassioned; “what if he comes out, or hurts himself or someone else? We’d be liable.” The truth be known, law enforcement faces far greater liability from forcing a confrontation absent legal justification in such cases, than with what the subject could possibly do after we leave.
In DeShaney v. Winnebago County , the Supreme Court held that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” The U.S. Supreme Court held that the constitution is not a source of any affirmative obligation on the state or its subdivisions to protect its citizens. Since “the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.”
I’m not suggesting that we stop protecting our citizens from legitimate, foreseeable, and preventable risk. I’m just suggesting that we stop using the “we’d be liable” argument when facing scenarios such as the one outlined above, recognize where the true liability is found, and leave such scenes when logical, reasonable, and appropriate.
In or out?
Police agencies today should critically examine their barricade resolution policy and procedure and avoid entering into prolonged stand offs absent a lawfully defined justification to arrest or take the involved person into physical custody. There’s certainly nothing wrong with committing a reasonable amount of time to minimally intrusive techniques such as phone calls, electronic surveillance (where legally applicable), and the loud hailer in cases where concern exists for the subjects well being. Likewise, situations involving the use of intrusive tactics such as window clearing, mechanized ram, chemical agents, and entries should be preceded by appropriate judicial authority such as a search and/or arrest warrant, or mental commitment order-absent truly exigent circumstances involving the imminent threat of death or serious physical injury. Tough for some to do, but clearly the moral and ethical “less lethal” high road as we seek to reduce the number of “lawful but awful” shootings involving the mentally ill barricaded subject today.
1. Gaddis v. Redford Township, and City of Dearborn Heights, 364 F.3d 763 (6th Cir. 2004)
2. Herrera v. Las Vegas Metropolitan Police Department, 298 F.Supp 2d 1043 (Dist. Nevada 2004)
3. Iacocca, Lee. Iacocca. New York: Bantom Books. 1984. Page 47
4. DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT., 489 U.S. 189 (1989)