Texas cops stress that use of force involves perception, legal definitions

Departments teach various scenarios and legally permissible responses for the 'ideal' continuum of force


By Victoria Aldrich
Kerrville Daily Times

KERRVILLE, Texas — It’s easy to assume that police shootings are acts of brutality until you are the one standing over a corpse in a darkened room.

Kerrville Police investigator Josh Jureczki illustrated that concept Thursday as Kerrville Police Department Citizen Police Academy members were asked to canvass a room to find out who “killed” a plastic dummy on Thursday.

Dressed in field camo and a protective mask, another man lurked in a darkened corner with an ax.

A straight shot with a detergent-loaded bullet was all it took to fell him, a simpler scenario than officers may encounter in the field.

“What did you forget?” Jurezcki asked. “You forgot to tell him to put his hands up. You got him, but you are going to prison for a long, long time.”

The tunnel vision that is an automatic part of the fight-or-flight response is one of many factors grand juries examine when determining if a police shooting is legally justified or constitutes homicide, a sticky issue as reports of officer and civilian deaths continue to escalate.

No formal reporting database exists to report and monitor police shootings, a problem critics say facilitates hiding the events.

Media accounts this year vary widely, with reports of less than 500 and more than 700 civilian deaths cited by major U.S. media outlets.

Accurately tallying those murdered in the line of duty also is difficult. 

The Officer Down Memorial Page tallies service-related deaths each year that include  natural causes, accidents, homicide or other causes, but the page doesn’t list deaths where a cause hasn’t been formally disclosed.

The page lists 93 officers as having died of all combined causes through Monday, including 10 Texas officers. 

Six Texas cases were confirmed as homicides, including the Aug. 28 shooting of Harris County Deputy Darren Goforth, the June 24 vehicular homicide of Hutto Police Sgt. Christopher Kelley, and the May 18 vehicular assault of Houston Police officer Richard Martin.

Missing from the list is Abilene Police Officer Don Allen, who was found bound and murdered in his home on Sept. 1.

Departments teach various scenarios and legally permissible responses using the 200 different graphics illustrating the continuum of force, according to retired Austin Police policeman Jerry Staton. 

Since retiring, Staton has taught officers how to avoid conflicts and legally implement use of force through his company, Affordable Realistic Tactical Training.

“The use of force continuum is a model of how, in a perfect world, force can be used when necessary, because there are higher levels of resistance,” Staton said. “That’s not how the real world works. Officers have to go to the level of force that reasonably stops the problem. You have to start at the bottom and work up from there. Every time that you touch somebody, you have technically used force.” 

A fraction of 1 percent of all arrests annually involve a reportable use of force, Staton said.

The majority of police shootings involve mentally ill persons, a person on drugs or other scenario involving an armed subject.

Determining whether a person has a weapon and plans to use it is something an officer can’t always determine accurately, Jureczki said. 

Knives, not guns, are the biggest danger, Jureczki added.

“In the real world, all you have is a 21-foot barrier between you and the person,” Jurezcki said. “It takes less time for a person to run at you and stab you within 21 feet than it does for me to pull a gun to stop him.”

An officer also is continually scanning the scene for collateral damage, another factor affected by tunnel vision and fight-or-flight responses.

“Be aware of what’s behind the threat, if there are children or family members,” Jureczki said. “Every time we pull the trigger, we are responsible for what goes down the range. If a daughter or a wife is standing behind the target, and they get hit, we are responsible for those shootings.”

Training academies had a unique way of describing the continuum in the old days, according to Kerr County Sheriff Rusty Hierholzer.

“Use the least amount of force necessary to control the situation,” Hierholzer said. “They used to teach it a long time ago that if a guy had a feather, you could use a rock. You have to be able to control the situation, and it’s an escalating amount. You have to use everything you can to use the least amount of force.” 

Officers are instructed to use verbal warnings and commands before a situation escalates, Hierholzer said, but situations often veer out of control.

Earlier this year, Hierholzer tackled a dementia patient who waived a gun at officers in a home after reportedly threatening to kill them.

“We could have shot him, but I chose not to,” Hierholzer said. “The cartridge was starting to slide out, so I knew the gun wouldn’t discharge, so I tackled him. You have to weigh every situation, and that’s extremely hard to do. The hardest thing is that you have a 10th of a second to make that decision. Then the courts have a year or more to decide if an officer used excessive force.”

Kerrville Police public information officer Ben Eubank said no amount of training can predict or prevent use-of-force scenarios.

“Despite public perception, sometimes there really isn’t another option but to use force, no matter how uncomfortable it is to accept,” Eubank said. “I have never shot a person or a dog, but I would not hesitate to do either if my life or limbs are threatened.”

Public perceptions of when and how police may arrest a person vex police, a confusion often fueled by fictionalized crime shows.

“In my four years here, I have used physical force, i.e. pepper spray, maybe a total of six or eight times, and that’s not because we are afraid to use force,” Eubank said. “The law gives us the authority to put our hands on people if necessary. However, we teach our officers that verbal judo is king, and kindness and respect will get you much further much faster. The old days of tough talk and batons for every violator are gone. That is a sensational image that the public wants to buy into to justify the anti-authority mindset.” 

Police officers also undergo extensive training in crisis negotiation, including handling the mentally

ill, to deter use of force, Eubank added.

Public perceptions of when and how police make arrests and when they are required to obtain warrants also are flashpoints.

The Texas Code of Criminal Procedure defines the circumstances in which an officer may arrest someone with or without a warrant, Eubank said. 

It also requires officers to arrest those who commit offenses in their presence, or those who violate protective orders regardless of whether the person in whose name the order was issued allowed or invited them into the vicinity before contacting the court to have the order revoked.

Domestic violence situations present one of law enforcement’s greatest dangers, when officers are more likely to be injured or killed than other calls.

They often prove more vexing for police, since people who press charges often choose to reunite with the person they accused.

On Friday, Kerrville officers encountered that situation when 29-year-old Andrew House was arrested at a female companion’s home in Kerrville.

“She had an active trespass warning against him at the home, and he told us that he was aware of it,” Eubank said. “The woman also said he had assaulted her earlier that evening at his parent’s home in Fredericksburg and had displayed a knife.”  

Chokeholds are another common compliance technique that has been discouraged in recent years.

“That can be a deadly hold if you are not trained to use it properly,” Hierholzer said. “It’s not just the firearms that are deadly. It also can be your vehicles. I’ve seen us try defendants where a person has sicced a dog on an officer.”

Earlier this month, a Kerrville officer was bitten after a homeowner released several dogs as police searched for an accused convenience store robber.

The officer legally could have shot the dog but chose not to, Eubank said. 

“People say, ‘Oh, he is just very protective,’” Eubank said. “Well that can create some problems. If we have to arrest the dog owner and there is any struggle at all, then that ‘nice but protective’ animal is going to attack. Dogs cannot use deductive reasoning and process the legitimacy of an officer’s actions to detain the dogs’ master. Like all animals, they have instinctual responses. Furthermore, if a dog owner is having a medical issue and in need of immediate assistance, i.e. heart attack, broken hip, etc., we and EMS are going to force entry into the home to save the human. If the dog is going to attack us, we have no choice but to eliminate the threat. Nobody has time to call animal control while a human is bleeding out or having a heart attack. Wearing a badge and uniform does not mean that we are required to be beat on by people or bitten by dogs.”

Copyright 2015 the Kerrville Daily Times

 

McClatchy-Tribune News Service

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