It’s one of those head-shaking moments as the question inevitably gets posed: whether Sandra Bland was legally entitled to continue smoking her cigarette, despite Trooper Brian Encinia’s “request” that she put it out.  It’s the sort of monumentally stupid parsing of details in which naïve people indulge. Do you really think it’s worthwhile to argue your rights from the grave?

The problem is on the other side of the equation, in the training, formal and around coffee and donuts, and law, that police officers must seize control of all situations lest they end up harmed.  This gap in compliance, not doing what the officer commands, even when his words are framed politely, can end up badly for the person on the business end of his gun. Yes, we have rights. Yes, those rights can be ignored, wrongly, by a police officer. And yes, the law is deeply, irreconcilably, conflicted when it comes to who wins in a violent clash.

At a new blog by the Virtus Group, Chicago Police Officer Lou Hayes takes a hard look at this gap. He opens with an anecdote, of a confrontation with a bad dude that is going, well, well.

During the assignment, the police officer came face-to-face with one of the pajama-wearing, breakfast-cereal-eating suspects…in the kitchen. He looked at the officer calmly, as did the officer to him. The suspect was standing with his hands up in the air. Even in the midst of the chaos that surrounded them, the suspect and the officer talked in very calm, conversational tones. The policeman decided to NOT tell him to get on the ground, as doing such would put him out of his sight. Instead, he slowly and calmly explained that the team was serving a warrant on his home and that he was under arrest. “Don’t move, buddy. Stay right there.” The suspect was locked onto the officer – in a good way. Like a personal connection was made. They were both was listening and talking. 

Did that mean everyone was going to have dinner that night? Not exactly.

Then seemingly out of nowhere, the policeman heard one of his teammates yelling at the suspect to “Get on the ground!” Before he could stop him, the partner ran up to the suspect, grabbed his pajama top, and forced him to the ground. And with that, any rapport that the suspect and the first police officer developed (over the course of ten short seconds) was GONE.

When the second officer was asked why he did such, he answered in a logical manner: The plan was to have all suspects get on the ground for scene safety. The suspect ignored his commands. Force was necessary and reasonable to ensure further safety. 

The net result was twofold, that the bad dude got a cut on his head, and that whatever rapport could have developed was lost. But then, no cop was harmed and, as if seen through the lens of control, and endorsed by every judge ever, force was “necessary and reasonable to ensure further safety.” The detail missing is that had the bad dude resisted in a way that could conceivably be interpreted as forceful, he could just as well be dead.  And the same explanation would not only apply, but be absolutely believed by all involved.

But bear in mind, this was a bad dude. Not everyone is a bad dude.

The above case serves as my very first time when I asked myself, “Are there times when non-compliance with police commands actually makes sense?” 

Many of these sorts of learned-after-the-fact critiques reveal information on WHY a person might have not immediately complied with a police officers request or command. Consider these possibilities and the reasons that might contribute to non-compliance: 

• deaf;
• music earbuds;
• Autistic;
• mentally ill;
• physically disabled/paralyzed;
• cognitive impairment;
• non-English language speaker;
• sensory/auditory exclusion;
• medical emergency (ex: diabetes);
• confusing/mumbled police commands;
• conflicting police commands (between multiple officers);
• being shocked or surprised and still processing what’s happening;
• being temporarily blinded by bright lights;
• misunderstood police jargon.

The above list can be cited as justifications, or at least logical explanations, for non-compliance. But the above list can just as easily be confused on the street by a police officer as: dismissive, disrespectful, disobedient, or ignoring. 

Some of the causes are the direct fault of police, who create a scenario that could well produce what appears to be a justifiable killing, despite the “perp” doing nothing to cause it. Others are beyond the “perp’s” control, but demand a level of attention and concern that cops are disinclined to show. After all, they could just as well mean that someone is being disrespectful, and to a cop, that means they are a threat. Or at least, deserve whatever pain they’re about to lay on them.

So instead of waiting to find out if the person MIGHT be deaf…or MIGHT speak another language…or MIGHT be still waking up, we respond with what we know: force. Lawful force.

Should this be lawful force? Cops think so, but then, they think the First Rule of Policing trumps everything else in the world, which is why it’s the first rule.

What this really boils down to is how police officers respond to or even ACCEPT certain levels or types of non-compliance. Yes, it’s all situation-dependent. And yes, there will always be some innocent, vulnerable folks who end up on the receiving end of police force – due to a reasonable misunderstanding or unavoidable mistake.

What I’m asking is whether we are teaching our officers WHY and HOW to position ourselves to limit these mistakes and unfortunate incidents. When I say “position,” I mean physically…but also mentally and emotionally. Or are we in such a risk averse mindset that we are absolutely closed to acceptance of any extended duration of non-compliance?

Is there room for a moment of patience, a willingness to endure the slightest risk that the non-compliance means the “perp” is a bad dude rather than deaf or confused?

Maybe we can sum it up as the tug-of-war between Restraint and Stabilization on one end, and Hesitation or Reluctance on the other. 

I feel as though, somewhere along the line, we police officers stopped explaining ourselves before the force event…and leave the justifications for the police report and the courtroom. Maybe if we took more time up front and accounted for some extra accommodations, we wouldn’t be in some of the messes we’ve now found ourselves…

Then again, sometimes, there is no time for that. And I get that too.

As Hayes realizes, the moment’s hesitation to figure out whether the person on the other side of the gun is a threat to a cop’s life or a good guy struggling to process a cop’s command could mean that a cop dies rather than a good guy lives.

But it also means Hayes and his group are asking the question, planting the seed from within cop culture, that it may be worth a tiny bit of risk to figure out whether the person you just killed was really a potential threat or just an ordinary guy, like your neighbor or third cousin, who needed an extra few seconds to figure out what “light you up” meant.  Or needed a cop’s help as he suffered a diabetic seizure. Or couldn’t comprehend conflicting orders because of an IQ of 51.

That the idea is being broached by someone on the inside — because us outsiders don’t get it and will never be persuasive to cops — matters.  That the law still deems the killing of a non-compliant deaf guy a lawful use of force, on the other hand, remains a problem that will be very hard to ignore. The fear of a moment’s hesitation by a cop to figure out whether the “perp” is still governed by the First Rule of Policing will be a cultural impediment that may never be overcome.