COMMENTARY: Sworn Officers and Duty to Protect.
By: Charles G. Slepian, Esq.
Founder, Foreseeable Risk Analysis Center, LLC
Public demonstrations over social and political issues have been occurring with increased frequency in American cities from coast to coast. Thousands of demonstrators have been taking to the streets to protest public policies with which they disagree, or to express their opposition to the results of November 8th’s federal elections. Joining the current demonstrations are protesters remaining from the Anti-Wall Street sit-ins and the Black Lives Matter movements, also nationwide in their reach. In New York City members of the public and businesses adversely impacted by the current demonstrations, the impact of closed streets, traffic jams and needing to run a gauntlet of sometimes menacing “in your face” protesters has once again created conflicts between protected First Amendment rights to publicly protest and the right of the public to safely access city streets for personal, commercial and recreational purposes. As New York City begins another week of protests further challenging the patience of the community and the wherewithal of law enforcement to maintain order, it is clear that either the protesters decide to end the current protests or government will need to bring a halt to them through the use of its executive power. As in the past, it will once again be the duty of law enforcement to ensure that the rights of all parties are protected and life returns to normal in New York City without unreasonable delay.
The public’s right to safely use the public streets, and the right of peaceful protest in those same streets is not a unique challenge for the Police Department of the City of New York to maintain. New York’s police have in the past successfully fulfilled their duty to protect the public many times in similar circumstances and will again. In compliance with judicially developed rules governing public protests such as Time, Place and Manner provisions authorizing the rights of demonstrators to orderly protest and the public’s right to safely use public streets. an acceptable structure allowing for public safety needs and First Amendment rights can be protected side-by side. By adhering to rules for the balancing of conflicting rights within a framework of fair consideration of the rights of protesters and the needs of the general public, dissenting views can be heard and a fair compromise reached. Without reasonable compromise, differences escalate and the entire community is likely to suffer.
I marched in public demonstrations with both the police and demonstrators, as a mayoral aide, assigned to maintain dialogue during the violent protests against the Viet Nam War and the complaints of Racial Discrimination in the late sixties and earIy seventies. I experienced the resulting chaos of violent street protests and mob disorder on young police officers, many younger than the demonstrators massed against them. While caught up in the midst of such protests, many working New Yorkers, trying to catch their commuter trains from Grand Central Station, came under attack by frenzied protesters. I saw well trained, disciplined lines of police fiercely attempting to keep protesters and passengers apart to reduce the level of carnage that appeared inevitable. Under the command of high ranking police officers leading specially trained, disciplined young officers of NYPD’s Tactical Patrol Force, casualties among the passengers and demonstrators appeared much lighter than it might have been if the event had been policed by members of the NYPD not specially trained in crowd control.
The Spread of Violent Protests
In Los Angeles, Miami, Detroit, Houston, Newark other communities large and small across America with neighborhoods already reeling from decades of poverty and neglect, protests were erupting within urban communities and especially on college campuses where the anti-war movement fueled fierce riots in community after community. At Columbia University in New York City, the venerable campus had five academic buildings occupied by various protest movements for over a week. After the failure to reach a negotiated settlement for returning the occupied buildings to the administration, 1,000 New York City Police Officers, members of the elite Tactical Patrol Force on a chilly April night in 1968, removed the protesters from the buildings and restored order at the direction of the university president.
Remembered as one of the largest and most violent campus protests in the nation, when all else failed, and with casualties among demonstrators and police alike mounting, the nation’s best trained and best led police force ended the chaos with minimum of disruption. The university president was widely criticized in academic circles for his decision to invite public law enforcement officers on the campus to remove protesting students. His decision was seen by some academics as a violation of the tradtion of separation of town and gown in internal university matters. However, the president also remembered his duty to protect his students and campus from further violence and took the appropriate leadership steps on behalf of the entire student body, the faculty and the outside community of which the university is a key member.
CHALLENGES TO THE DUTY TO PROTECT
- Standards of Reasonableness
There are times when circumstances make it impossible for law enforcement to carry out their sworn duty of care to protect the public from crime and natural or man-made disasters. When government, even with its organization, training and equipment fails to protect the citizenry from harm, the reflexive reaction is to look for who or what to blame. Sometimes the cause of violence or other harm is too complex for an early determination of its source. Caution not to accept unproven justification for decisions to act or not to act needs to be observed. The duties of care to protect, just as rights under the First Amendment, are not absolute. The efforts made to provide both are subject to standards of reasonableness: (a fair and sensible interpretation under the circumstances.) For example: a fire fighter’s duty may be to not enter a burning building because of over- whelming circumstances which are likely to make such efforts futile and the risks to the firefighter too great even though he hears the last cries for help from someone trapped inside. Relying on his training and experience, he must try to find a different and more reasonable response, one that lowers the firefighter’s risk and raises the possibility of a successful rescue. Regardless of the outcome to the chosen response, it should be expected that an inquiry will follow to closely examine the decision making process.
To Shoot or Not to Shoot
A police officer responds to a call concerning a man and a child of about 8 years of age. The man is holding a knife with the blade at the young boy’s throat. The officer attempts to learn from the perpetrator why he wants to hurt the boy. The officer is told that man and the boy’s mother are divorced and she has been awarded custody of the boy and is planning to take him out of the jurisdiction. Before the officer can offer a response, he sees that the blade at the child’s throat is covered with blood. The officer, an NYPD firearms instructor, rapidly draws his firearm and fires one round into the perpetrator’s head killing him. The officer learns that the perpetrator was indeed the child’s father and that the child’s mother is now planning to commence an action against him for recklessly endangering her son’s life and for causing him to suffer extreme emotional distress as a result of the officer’s action. The NYPD suspended the officer while they investigated his use of his firearm. There are times when an officer in the performance of his duty really has no good options especially, when deadly force is the issue and this was one of those times. There usually are unexpected consequences in police actions, particularly matters such as these where a family dispute erupts into the need to use deadly physical force and a child is being exposed to harm by both his parent and the officer sent to protect him. The duty to protect a child from harm requires a high standard of care and the officer’s decision will be very carefully examine.
Judgement to Act in Matters of Life and Death
In the performance of their duties, police officers, fire fighters and even airline pilots may be called upon to protect others from a harm created suddenly and in a manner not ever contemplated by them. Captain Chesley Sullenberger, was the pilot of U.S. Airways flight 1549 from New York City’s La Guardia Airport headed to North Carolina on January 15, 2009, when his U.S. Airways Airbus 320 struck a flight of Canada geese; one engine caught fire immediately and both suffered heavy damage. Sullenberger quickly assessed the damage while calling air traffic control and reported the incident. Air traffic control suggested a return to La Guardia or an emergency landing in close by Teterboro airport in New Jersey. Sullenbeger concluded that he did not have time, speed or altitude enough to make a safe landing at an airport and advised all on board “ to brace for impact” in preparation for a water landing in the Hudson River.
Sullenberger’s decision, as later reported in the press, was based on his “42 years of experience, education and training;” that instilled in him the knowledge and discipline to try the tremendously difficult landing he had never anticipated having to make. His confidence in his judgment, bolstered by his belief that an airport landing would result in his failure to save the lives of all on board and unknown others on the ground. With that as his focus, and after directing all on board and ground control of his decision, he successfully landed the airliner in the Hudson River saving the lives of all on board. After walking up the aisle of aircraft to make sure that all on board were safely out of the cabin, he collected the planes log and joined his passengers and crew who had assembled on a wing and were being boarded onto small craft that had quickly assembled on the water to assist in the safe evacuation of all.
Captain Sullenberger’s decision to ditch in the Hudson faced little chance of success in the minds of ground control. Despite the fire, engine failures, loss of power and low altitude, safely landing an airliner in the Hudson River appeared an insurmountable risk. Sully was convinced that an airport landing given the damage, altitude and air speed factors doomed any attempt to change the direction of the aircraft and control it to a safe airport landing. Ever dedicated to the value of preparedness and experience, Sully believed he could safely accomplish a water landing and was equally convinced that the maneuvers required to land his airliner on an airport runway simply could not be accomplished under the circumstances. For Sully, the calculus was simple, to save the lives of all those he was responsible for, his only reasonable option was to successfully put his airliner down in a river, keep it from breaking up on impact and safely evacuate his passengers and crew. For an ordinary man in his situation, it was an unlikely task but for an extraordinary professional with the courage of his convictions, it could be done – and it was. Captain Sullenberger’s celebrity status did not make him immune to criticism, for in the opinion of government investigators he had unnecessarily risked the lives under his command. But like for scores of other professionals who daily risk their lives in devotion of their duty only to be second guessed by others whose job may be to do just that, preparedness and professionalism will usually survive under examination, and so it did for Captain Chesley “Sully” Sullenberger.
In the pursuit of justice, it is often too easy to be caught up in the emotion of a sensationalized event before the wheels of justice have even begun to spin. For many of us, justice is characterized as the fair and proper result of a criminal or civil, judicial process. For others, like me, justice is less a conclusion but rather a process that hopefully results in a fair opportunity to seek a just decision. It is because the process often does not provide for the fairness due each of us, mistakes are made and bad decisions are hastily reached resulting in the imposition of penalties, or in the failure to penalize when a penalty is due. An increasingly disproportionate number of such cases of late have caused police officers attempting to do their duty, and their families, to suffer the anguish of being accused and tried in the media long before the matter ever reaches a court room in which facts are heard, a proper defense is offered and the officer ultimately released.