Abstract

Excerpted From: Philip J. Silverman, Police Reform: Training Officers to Reduce Improper Threat Detection, Which Is Present in Many Unjust Killings and Worsened by PTSD, Cumulative Stress, and Implicit Racial Bias, 50 Capital University Law Review 505 (November 13, 2022) (210 Footnotes) (Full Document)

Police brutality found its genesis as an American social issue in the late 1800s. Recently, increases in media coverage and crime surveillance technology have made police brutality a focal point of American race-issues.

Police brutality is defined as “excessive [or] unnecessary [use of] force by police officers when dealing with civilians.” The National Institute of Justice's four levels of force, from least to most restrictive, are verbal restraint, physical restraint, less-lethal force, and lethal force. This note focuses on lethal force.

Lethal force generally occurs when officers use deadly weapons, such as firearms, to gain control of a situation, although weapons are not a requisite. For instance, lethal force occurred in George Floyd's murder as a Minneapolis police officer knelt on the back of Floyd's neck for over eight minutes. This article discusses police reform ideas but focuses heavily on mental training. It does not cover killings stemming from classic abuse of physical authority, such as George Floyd's murder.

This note separates on-duty police that kill civilians into two categories. Category one is abusive, racist, or narcissistic officers blatantly abusing power, while category two is officers who misinterpret stimuli and therefore kill innocent civilians. This note addresses lethal force scenarios that include officers in the second category.

These lethal force scenarios are legally complicated as officers may respond with a level of force they believe is reasonable in the circumstances. Under the “reasonableness” standard, an officer shall apply lethal force only if a suspect is a serious, imminent threat to the officer or to another individual. Officers may also adjust their level of force appropriately. In essence, the law is measuring whether an officer's threat detection and resulting response was reasonable under the circumstances.

This topic is important because officers' decisions not to shoot, missed shots, and inappropriate tactics may kill or grievously injure themselves, suspects, and bystanders. Unfortunately, these decisions often occur in settings that are complex, fast-paced, ambiguous, and low-information. The United States Supreme Court has even recognized the complexity of lethal force scenarios. As a result, courts judge these decisions from the perspective of a reasonable officer at the scene instead of an officer “with the 20/20 vision of hindsight.” Accordingly, an officer's ability to make accurate and rapid decisions is critical to the outcome of a confrontation that may require lethal force.

Psychological impairments, such as stress, may also compromise an officer's judgement in fast-paced environments. This note argues that an officer's inability to control the physiological manifestations of stress may be a major factor in police killings.

First, this note discusses stress's impact on decision making and identifies that the inability to regulate stress is a major factor in police killings. To strengthen the thesis, this note then identifies two additional factors in police killings, Implicit Racial Bias (IRB) and Post-Traumatic Stress Disorder (PTSD), as field-examples of the consequences of improper stress regulation. Thereafter, this note discusses legislative solutions to the police force's stress management problem. The solutions are as follows: increasing research funds to develop empirically supported training methods geared towards stress-regulation; developing empirically supported methods to screen and treat active and prospective officers that display maladaptive stress responses, PTSD, and IRB; and providing all police departments with the resources necessary to implement the training and screening methods.

[. . .]

Police brutality is certainly one of the most polarizing social issues today. Excluding intentional acts of abuse, racism, and hatred, erroneous decisions to apply lethal force often occur when officers have threat-perception failures that stem from heightened stress. Officers have poor stress regulation because of insufficient training as well as [Post-Traumatic Stress Disorder], [Implicit Racial Bias] , and other maladaptive stress responses.

Fortunately, there is promising preliminary research that indicates a potential for interventions and exposure therapy to reduce the likelihood of officers using excessive lethal force. Psychology-based screening methods could also help identify officers with improper threat detection systems. Therefore, the federal government should lead a nationwide initiative to do the following: further the research on the effects of maladaptive stress responses; develop training, treatment, and screening programs based off of this research; and supply adequate resources to departments so that the methods may be implemented.

Funding is the major roadblock to this initiative's success. For this reason, the government should encourage support from the states as well as American citizens, businesses, and foundations that are interested in social justice and police reform. International collaboration, if plausible, could also be beneficial.

In conclusion, a national initiative to research the causes of police killings--specifically, stress-related deficiencies that cause faulty threat-detection and recovery--is critical to solving police brutality as a whole. While understanding the cause of the problem is vital, it is not the last step. Change requires action.

Philip J. Silverman is a JD-MBA student at Capital University Law School and Capital University School of Management.