By: Peter F. Boyce
General Counsel, NNOAC
The nightly news rarely has an evening without some report of another high profile Hollywood icon being accused of sexual harassment. Politicians and business moguls are being forced from their seats of power by claims of unwanted sexual contact that in some cases occurred decades before.
Sexual harassment has been illegal since the Civil Rights Act of 1964 and a line of cases that followed that landmark piece of legislation has given some clarity to what constitutes unconstitutional sexual harassment. In 2016, the EEOC got nearly seven-thousand reports of sexual harassment. Those numbers will surely rise.
The social and cultural environment has changed and it is time that law enforcement recognize the shift from the "normal" of the 1960's, 70's and 80's and do far more than just play lip service to anti-harassment policies related to sexual behavior. It is not simply enough to have some casual training related to harassment in the workforce. There must be proactive, scenario based training for all police personnel from the Chief's office to the file clerk in order to alter the environment in the law enforcement community.
As in the business community, the political world, in law enforcement men hold a disproportionate share of power. Women often feel they can't afford to "burn bridges" and therefore do not report sexual harassment. The law enforcement profession is particularly at risk because of the military style rank system that creates a legitimate concern by the female who might suffer harassment by a senior officer. The media hype of late will surely empower many more females to report harassment and to submit claims for compensation.
When I first started practicing law in the late 1970's, it was not unusual to have either a male or female stripper come to the office in late afternoon to celebrate an employee's birthday as all employees shared a beer and enjoyed the fun. I now wonder if some of the female employees now feel, even after 30 plus years, if that constituted sexual harassment.
Was or is a hug, rather than a handshake, by a senior male towards a female a form of sexual harassment?
When meeting with a subordinate female upset about a personal or professional issue were attempts to console that female possibly then and now be viewed as sexual harassment years later? Questions related to the intent of the potential harasser and the perception of the potential offended party are often impossible to discern years after the fact.
The social and cultural environment has changed. The law has expanded to give clarity to a host of rights and responsibilities that were not in the forefront even twenty years ago. Sexual harassment, sexual diversity, transgender and gay rights are protected by federal law and most state laws. Sexual harassment now has risen to be the "issue du jour" and every agency, no matter its size, must recognize the importance of continuous, situational training. Offending personnel must be disciplined, a formal process must be put in place to respond to complaints of harassment. Retaliation directed at the complaining party must not occur unless the individual's assertion was based upon a fabrication. Offenders, even at the highest level, must be held accountable for any unlawful actions directed at a subordinate or co-worker.
While the statue of limitations for unconstitutional harassment maybe limited and the legal requirements for sustaining a case may be stringent, the professional police organization in today's environment must react, investigate, mitigate, train and reinforce that sexual harassment is not, was not, and will not be tolerated no matter any legal impediments that might prevent a case from being brought. It is the right thing to do and any that stand in the way, even if the offender is a "good ol' boy", needs to step aside. Sexual harassment claims will surely burden any law enforcement agency that does not recognize our ever changing legal and social environment.
Police as Guardians: Confronting the Mental Health and Drug Addicted in Crisis
By: Peter F. Boyce
Law Enforcement has been thrust into a role of crisis intervention when confronted with persons suffering from mental illness and/or drug induced behavior. The media now asserts that the police, as first responders who frequently confront individuals with severe mental illness or who are under the influence of drugs, must fulfill a legal obligation to protect the safety and welfare of the community as well as assess and safeguard the rights of people with disabilities such as mental illness or drug induced behavior. Many assert that law enforcement, as part of their duty to serve and protect the rights of every citizen, must now assume the responsibility to manage and access if the person they confront is a criminal in need of arrest or a person with a disability who needs medical intervention.
Law Enforcement has been trained to arrest someone involved in illegal activity leaving the criminal justice system to determine after the arrest if the person charged with a crime should enter a mental facility, a drug rehab program, or face criminal charges. Police officers receive little or no comprehensive training in dealing with people with mental illness which often appear to the officer to be drug or alcohol related.
Officers must be trained in crisis intervention and specialized teams composed of a mental health professionaland the police should be available to every officer who confronts a situation related to a mental health crisis or drug induced behavior. Police departments do not have the financial resources to provide a crisis intervention team. It seems unlikely that the politicians will allocate the funds necessary to train each officer on crisis intervention and de-escalation.
What can law enforcement do to meet this challenge of evolving law and public perception that the police should alter their approach when confronted with a mental health or drug induces critical incident?
Law enforcement and mental health professionals should adopt policies and procedures that promote the value of working together using joint resources and expertise during interventions. Police officers and mental health professionals need to work as a team to train, equip and share resources in a crisis situation.
Police officers must be cautioned, however, that the use of force, even lethal force must be an option when confronted with a suspect who poses a danger to the public and/or the police. The reality is that while some encounters can be de-escalated, the officer must make the decision, often in a split second, regarding whether to use force or attempt to de-escalate the encounter. The public must understand that as guardians officers also assume the role, when necessary, as warriors in order to protect the public interest and the lives of their fellow officers.
The responsibility to make sometimes instantaneous decisions regarding the mental health of a suspect or their degree of drug intoxication has been thrust upon law enforcement in an era of de-institutionalizationof the mentally ill and drug crazed individual. The media will almost always blame the police if force results in injury or death when mental accuity is in question and generally blame the police for force even when used against drug offenders.
We need to train police officers to better identify symptoms of mental health disorders and substance use, give them as-needed access to mental health professionals through either crisis intervention teams or remote solutions like telepsychiatry and facilitate ongoing collaboration between police and health care professionals.
Only when all of these many issues are faced and funded, can law enforcement hope to curtail the crisis of dealing with the mentally ill and drug addicted citizens. Until the issues are addressed by elected officials and the courts, law enforcement finds itself caught between being a guardian for the mentally ill and drug offenders and the mandate that law enforcement must protect the public safety.
Use Of Force Training- A New Standard For Law Enforcement
By: Peter F. Boyce, General Counsel
National Narcotics Officers Association Coalition
The definition of Use of Force varies by state and often varies locally by agency. Amnesty International, in a 2015 study asserts that "all 50 states fail to comply with the international law and standards on the Use of Lethal Force." Only two states (Georgia & Tennessee) provide for training of police on the Use of Force by statute.
According to the Department of Justice, Federal Law Enforcement may only use deadly force "when necessary, that is when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or another person." Some in the media and on the left of the political spectrum advocate that lethal force (firearms) "may only be used when strictly unavoidable in order to protect life."
Is pointing a firearm at someone a Use of Force or a Show of Force? According to a Justice Department Settlement Agreement with Albuquerque, New Mexico in 2014, the Use of Force is "a physical effort to compel compliance by an unwilling subject above unresisted handcuffing including pointing a firearm at someone." Does a taser point constitute a Use of Force? Can deadly force be used to prevent the escape of all felony suspects or only to prevent the escape of a felony suspect who presents an imminent danger. Some states allow deadly force to be used to prevent the escape of all felony suspects, while most states and the Federal government follow the holding in Tenn v. Garner and require that the felony suspect must pose an imminent danger before deadly force can be employed.
Widespread media reports of police Use of Force over the last 18 months have raised significant questions regarding law enforcement's Use of Force. Several police departments, police organizations and most notably the President's Task Force on 21st Century Policing in 2015 sought to identify the best police practices and offer recommendations on how these practices can promote effective crime reduction.
Media scrutiny, civil lawsuits and huge financial judgments against officers and police departments have made continuous Use of Force Training an absolute mandate for all law enforcement personnel.
It seems inevitable that the federal government will mandate many of the recommendations of the President's Task Force on 21st Century Policing and tie funding for state and local police to comply with training and reporting requirements of the Task Force's recommendations.
The study commissioned by the President was extensive with input from a broad section of law enforcement as well as members from the private and legal communities. Some key components of the recommendations were that each officer receive Use of Force training on an annual basis. Training on de-escalating conflict and the need for special consideration for the mentally ill and emotionally disturbed should be a focus of continuous training.
According to the Task Force, community policing, as a way of doing business, is the cornerstone of the 21st century law enforcement. The report also stresses that officers have a guardian mindset not a warrior mindset, be trained to treat everyone they encounter with dignity and respect, be neutral and transparent in decision making, and always convey trust worthy motives. Proportionality, as it pertains to the Use of Force concept, needs to be reinforced as well as accountability for each substantive citizen encounter.
Standards for review of any serious Use of Force or other serious encounter likely will require that a Use of Force Investigation be conducted by an outside agency and that a Serious Incident Review Board be convened to address any serious Use of Force, injury, or meritous complaint. Departments will likely be required to report the results of any such review including all lethal or serious injury Use of Force incidents to Department of Justice under the Violent Crime Control and Enforcement Act of 1994 which mandated the collecting and publishing statistics on all police Use of Force. To date, Department of Justice has not done so.
If your department or agency does not comply with the emerging new standards pertaining to the Use of Force and other policing encounters, you can expect not only a reduction in federal funds, but also potential of lawsuits alleging "failure to train" seeking to hold politicians and command staff responsible for inadequate training.
Cops Lives Matter Too
By: Peter F. Boyce
Social media, print media, TV talking heads and some advocacy groups have increasingly focused on the misconception that law enforcement is engaged in the system of targeting certain racial and ethnic groups. While there have been isolated cases of unconstitutional actions, the vast majority of officers have dedicated their lives to the law enforcement profession focusing on protecting the rights of all they serve no matter the race, ethnic background or other constitutionally protected group.
There is no question that black lives matter, hispanic lives matter, white lives matter and all other ethnic and religious groups lives matter. What seems lost in all the media rhetoric is the understanding that cops' lives matter too. Does society want a police force that turns and runs when confronted with danger? Have the media and T.V. cop shows convinced the public that an officer must first wait until a subject fires his weapon or commits a felonious assault before using lethal force?
Rather than blame cops for the societal problems associated with drugs, mental health issues, high power firearms and the erosion of the family unit; the media, politicians and various advocacy groups must focus their attention on solving these pressing social issues.
Ninety-two law enforcement officers died in the line of duty from January 1, 2015 to September 20, 2015. Twenty four were shot and killed in cold blood. According to the FBI, fifty-one law enforcement officers died as a result of felonious assaults in 2014, an 89% increase from 2013. Why doesn't the media report this alarming increase in law enforcement deaths? Don't cops' lives matter too?
A large percentage of cases involving suspects who died as a result of police intervention had multiple health issues and/or acute intoxication from drugs or alcohol and were actively fighting the police.
The FBI reports 461 "justifiable homicides" by police in 2013. They define "justified homicide" as the killing of a felon by law enforcement officer in the line of duty. These "justifiable homicides" were not the result of targeting. Nearly 56% of such encounters were originated by a 911 call. According to a Force Science Institute researcher who analyzed 125 cases during the first half of 2015, the data does not support the conclusion of systematic targeting by police of any ethnic or racial group. The Force Science Institute study found that a large number who died were white, and civilian witnesses when present, generally sided with police accounts of the event.
Law enforcement has the responsibility to serve and protect. Cops are the guardians of the public's right to a safe environment. The reality of policing today requires police to confront societal issues head-on that they have little ability to change. Only when society comes to the realization that the leading cause of death among young black men is homicide by their peers, only when the politicians address mental health and substance abuse issues precipitating many police encounters, only when society recognizes the deterioration of the family unit as the root cause of many tragic deaths in all ethnic groups can we hope to begin the process to address and eventually resolve these societal issues.
Police alone cannot solve societal problems. However, they have the responsibility to attempt to exert a measure of control to assure society remains protected. The law enforcement profession should take a leadership role and become a credible force to correct misinformation decimated by the media. The profession should admit when they are wrong, take corrective action when necessary, but most importantly, the law enforcement profession must not abrogate its responsibility to protect and serve everyone disregarding racial or ethnic background. Media and advocacy groups must come to understand that cops' lives matter too.