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January 2002

Volume 71
Number 1
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001

Robert S. Mueller III


Director
Features
Contributors' opinions and statements
should not be considered an
endorsement by the FBI for any policy,
program, or service.
The Manageable Future By envisioning an end state, law
The Attorney General has determined
that the publication of this periodical is
necessary in the transaction of the
By Charles S. Heal 1 enforcement officials can develop
strategies to achieve a favorable
public business required by law. Use resolution to critical situations.
of funds for printing this periodical has
been approved by the Director of the
Office of Management and Budget. Police and the Sexual Agencies should design sexual assault

The FBI Law Enforcement Bulletin Assault Examination 14 examiner programs to ensure a
sensitive, thorough investigation.
(ISSN-0014-5688) is published By Craig R. Wilson
monthly by the Federal Bureau of
Investigation, 935 Pennsylvania
Avenue, N.W., Washington, D.C.
20535-0001. Periodicals postage paid
at Washington, D.C., and additional Supreme Court Cases Ten Supreme Court decisions of
mailing offices. Postmaster: Send
address changes to Editor, FBI Law
Enforcement Bulletin, FBI Academy,
2000-2001 Term 22 particular importance to law
enforcement are summarized.
Madison Building, Room 209,
Quantico, VA 22135.

Editor
John E. Ott
Associate Editors Departments
Glen Bartolomei
Cynthia L. Lewis
Bunny S. Morris
6 Bulletin Alert 13 Bulletin Reports
Art Director Hate Crimes
Denise Bennett Smith Hidden Compartment
Assistant Art Director
Radar Flashlight
Stephanie L. Lowe 7 Book Review Grants/Funding
Staff Assistant License to Steal
Linda W. Szumilo 18 Perspective
This publication is produced by 8 Research Forum Surviving Assaults
members of the Law Enforcement Community Growth
Communication Unit,
William T. Guyton, Chief.

Internet Address
leb@fbiacademy.edu

Cover Photo
© Ronald Jeffers

Send article submissions to Editor,


FBI Law Enforcement Bulletin, FBI
Academy, Madison Building, Room
209, Quantico, VA 22135.

ISSN 0014-5688 USPS 383-310


© Mark C. Ide

The Manageable
Future
Envisioning
the End State
By CHARLES S. HEAL, M.S., M.P.A.

© Christopher S. Porter

immediately, “Sir, it’s never going


As for the future, your task is not establishment of alternate methods
to be normal.” He was right; the
to foresee it, but to enable it. of conveyance. Workers needed to
future had been indelibly altered. repair damaged buildings and make
—Antoine de Saint-Exupéry 1 The aftershocks and aftereffects roads passable, or bypass them all
continued for months, even years— together. Nevertheless, authorities
bridges down, roads impassable, could not accomplish all of these

L ate in January 1994, the Los traffic patterns altered, buildings


Angeles County, Califor- condemned and boarded up, houses
nia, Emergency Operations unlivable, and people’s lives for-
Center continued recovering from ever changed.
the Northridge earthquake, which
tasks simultaneously. Some con-
cerns would compete with others
for the same resources, causing offi-
cials to establish priorities and de-
But the immediate question velop a plan. Before any planning
occurred earlier that month. Many demanded an answer. When would could occur, however, the county
personnel, however, began to sense normal operations resume? A would need to consider an “end
that the operation was winding lot was at stake. The county state,” or acceptable outcome, to
down. But, after an employee asked had reassigned thousands of provide focus and direction. What
a senior commander when he workers to the stricken area, and would a desirable future look like?
wanted to resume normal opera- normal duties had suffered. Refu- How could it be achieved?
tions, the commander shrugged his gee centers, designed as temporary Most people probably do not
shoulders and laughingly replied, quarters at best, needed assist- think of law enforcement officers as
“When everything is back to nor- ance. The transportation system, futurists. However, contemplating
mal.” The employee responded brought to a standstill, required the a future resolution, or end state,

January 2002 / 1
constitutes a critical aspect in op- certainly began with the hunt for uncertainty and apply scientific
erational planning, particularly in food. Experience with prey, knowl- principles to achieve tactical suc-
responding to major disasters with edge of the terrain, availability of cess has grown into a large body of
their rapidly unfolding and ambigu- weapons, and the skills of other doctrine. From this knowledge,
ous circumstances coupled with far- hunters all played a part in the un- sound plans can evolve.
reaching consequences. To aid in dertaking. The first debriefings
grappling with such events, law en- probably existed as tales around a FUNDAMENTALS
forcement administrators need to campfire. But, as humans continued OF PLANNING
examine the fundamentals of plan- to hone their skills in stalking First and foremost, planning al-
ning and consider employing a quarry, the significance of critical ways attempts to alter the future in
method for envisioning an end state factors became more and more ap- some manner. If the future is immu-
that combines identifying the event parent. Successful clans exploited table, planning would prove point-
horizon and reviewing scenarios of the lessons that they learned and less. For better or worse, humans
possible outcomes.2 These tech- held skilled hunters in high esteem. would be doomed to accept their
niques provide a means for emer- As these groups began fighting with fate. But, because people can
gency managers to quickly identify each other, members easily trans- change the future, they expend great
the manageable future without ferred the skills learned during the effort influencing those factors
time-consuming and labor-inten- hunt to the defense of their clan, as most likely to yield a more desirable
sive analyses. Although designed well as the exploitation of weaker outcome. Thus, the axiom—“all
for law enforcement officers, the tribes. planning is future oriented”—re-
method has applications for anyone This ability to work together mains a viable tenet.
tasked with responding to rapidly and maximize the lessons learned In addition, the future always
unfolding events. served to encourage the formation consists of more than one possibil-
of armies and government. Down ity. For example, one future will
GENESIS OF THE through history, armies gained fame occur without human intervention.
MANAGEABLE FUTURE for their innovations in warfare and A second future will transpire if the
Humankind’s earliest efforts conquered vast areas of the world. intervention is effective, and still
to influence the future almost Over time, the effort to reduce another will happen if it is not.
Also, depending upon the effective-
ness of the efforts, an infinite num-
ber of possibilities can occur in be-


tween. This conceptual framework
provides a foundation for under-
standing how administrators can
Because all plans are conceive and implement successful
future oriented...any tactical interventions.
method that makes the Because all plans are future ori-
future more predictable ented and designed to bring about a
becomes a valuable aid more desirable outcome, any
in planning. method that makes the future more
predictable becomes a valuable aid


in planning. Although the future is
fraught with uncertainty, this ambi-
guity is not distributed equally. For
Captain Heal serves with the Special Enforcement Bureau of example, the closer an event is to
the Los Angeles County, California, Sheriff’s Department. the present, the more predictable its
resolution becomes. By contrast,

2 / FBI Law Enforcement Bulletin


the more distant an event is in the Furthermore, managers must accept vision of the desired end state,
future, the more difficult it becomes considerable risk and take bigger commanders’ directions become
to imagine the impact of interven- chances. To achieve success, this aimless and devoid of a cohesive
ing actions on the outcome. type of organization seeks out and strategy.
Unfortunately, absolute cer- values people noted for attributes,
tainty remains an impossibility. such as intuition, ingenuity, and APPLICATIONS OF
However, the more managers can initiative. THE END STATE
reduce this ambiguity, the more re- A more moderate view supports Because the end state describes
liably they can conceive and imple- a position somewhere between the desired result, or final outcome,
ment an effective intervention. This these two extremes. While recog- of a tactical operation, it is never a
quest for certainty relies heavily nizing that they can never attain cer- return to the way it was before. Any
upon a great amount of accurate and tainty, commanders still can base situation that requires an interven-
current information. However, ob- sound decisions on the best infor- tion to achieve a resolution already
taining this information has one mation available. This balanced ap- has altered the future indelibly.
major flaw—it takes time. Because proach advocates using scientific Thus, it is impossible to return to an
the luxury of time does not exist in identical previous state. Conse-
tactical operations, commanders at- quently, commanders must develop


tempting to intervene must react in a clear picture of what they will
one of two ways—they can either need to achieve a satisfactory end
increase their information process- ...contemplating a state to provide a focal point for
ing capacity, or they can operate on directing efforts to attain it. Without
the basis of less information. Both
future resolution, or this vision, the operation will run on
of these approaches have merit and end state, constitutes its own inertia, lacking both guid-
represent methods used by tactical a critical aspect in ance and impetus. In short, the op-
units throughout the world. operational eration becomes an “end in itself,”
To increase their information planning.... neither efficient nor effective.
processing, agencies can add an- However, inasmuch as the end


other headquarters, use faster com- state may occur hours, days, weeks,
puters, or employ more information or even months into the future, com-
gatherers. An organization that op- manders cannot obtain a totally
erates under this method, called skills to obtain and evaluate infor- clear vision of the final resolution.
“deterministic,”3 tends to centralize mation to the maximum extent pos- Although a certain amount of
all information by funneling it up- sible while recognizing that time vagueness and ambiguity always
ward to a central processing point constraints will not allow an ex- will exist, commanders can reduce
where high-ranking officials make haustive search for a conclusive it by limiting the possibilities to a
all of the decisions. Such organiza- picture. At some point, command- range of likely outcomes. The more
tions view the necessary opera- ers will have to make decisions precisely they define this range, the
tional skills as a science, producing based on available information. more they can focus their efforts to
highly predictable results based Regardless of the approach achieve a favorable future. This has
upon proven principles. used, commanders must have some momentous implications for strate-
The opposite approach, called idea of what they wish the end state gic planning.
“probabilistic,”4 describes an orga- to look like to develop an effective For tactical situations, defining
nization that views operational plan. Then, they can attempt to a future can involve two discrete
skills as an art. In these types of identify those actions that will have steps. These include identifying the
agencies, personnel must live with a positive influence on the ultimate event horizon and reviewing sce-
abstractness and operate in an envi- resolution and to implement them in narios to eliminate the most un-
ronment of extreme uncertainty. a timely manner.5 Without a clear likely possibilities.

January 2002 / 3
Identify the Event Horizon valuable planning aid because it while others may have far-reaching
The event horizon describes guides commanders to integrate effects. Generally, higher ranking
that portion of the future in which their decisions and actions into a officials need to orient the event
administrators reasonably can an- viable strategy. horizon farther into the future. For
ticipate the consequences of their Because the consequences of example, in a tactical operation, a
actions. This represents the part of actions are relative, so too is the sergeant most likely would be con-
the future where managers most event horizon. Commanders must cerned with the detailed deploy-
likely can succeed in shaping a de- anticipate some actions, of neces- ment of subordinate officers and
sirable outcome. It constitutes a sity, relatively close to the present, their immediate well-being, while a
lieutenant may be considering rest
periods or shift changes that would
occur 12 or more hours into the fu-
The Quest for Certainty ture. In the same fashion, a captain
probably would be contemplating
actions that will ensure the eventual
success of the operation several
days into the future, whereas the
chief of police may be looking at
ways to enhance the abilities of the
department for similar operations in
the months and years to come. All
of these sets of decisions have their
own criteria and a different event
horizon, which provides a means of
identifying that portion of the future
commanders realistically can influ-
ence and so becomes a foundation
for planning.
Commanders never remain
completely ignorant nor become all
The graph illustrates the quest for certainty and visually knowing; rather, their level of
depicts the event horizon. The Y-axis (vertical arrow) repre- confidence gradually increases the
sents knowledge and runs the gamut from complete ignorance closer it approaches the present.
to omniscience. The X-axis (horizontal arrow) delineates time Factors, such as memory lapse and
and extends into both the past and the future. The curved line incomplete information, always
depicts the confidence level, which represents the degree of make the past somewhat less sure
assurance that commanders may anticipate the consequences of and the future never completely
their actions. The two remaining lines on the graph represent reliable. In fact, commanders never
these two extremes—the close (timid) versus the distant (rash) will be more sure of a decision
limit of the event horizon. A plan oriented too close to the than at the moment they make
timid line usually is ineffectual. In contrast, plans oriented so it; thus, the level of confidence
far into the future as to make the consequences unpredictable always is highest at the present. Af-
prove reckless because such proposals rely more on guesswork ter commanders make a decision,
than sound reasoning. Therefore, an indifferent disregard for their level of confidence begins to
the consequences can result in catastrophic repercussions. drop sharply because they, like ev-
eryone, cannot determine precisely
what the future holds. Eventually,

4 / FBI Law Enforcement Bulletin


The Manageable Future
commanders reach a point where
they can no longer reasonably an-
ticipate the impact of their deci-
sions, and their level of confidence
drops dramatically. This defines the
farther limit of the event horizon.
However, the closer command-
ers orient their decisions to the
present, the less efficiently they
generally can achieve their ultimate
objective. These lackluster actions
often result from overcautious and
anxious commanders and usually
are not bold enough to alter the fu-
ture sufficiently to achieve a suc-
cessful resolution. Commanders
who fail to implement actions to The graph illustrates the manageable future and sets out
achieve their end state surrender the the consequences of the three case scenarios: best, worst, and
initiative and remain in a reaction- most likely. The consequence line depicts the chain of events
ary posture. This results in the situa- pertaining to their effects (and anticipated effects) on the
tion being “driven by events.”6 desired end state. The lower the line moves, the more undesir-
able the consequences. Conversely, the higher it goes, the
Review Possible Scenarios more desirable they become. In contrast with the confidence
Besides identifying the event level used in defining an event horizon, the consequence line
horizon, commanders can refine the almost always descends from the past to the present. If it
future further by eliminating those ascends (improves), the need for intervention may not exist.
possibilities so remote that they do Also, as the line continues moving toward the present, it
not merit serious consideration. reflects not what has happened, but what could happen. Thus,
This constitutes the second step in when the line moves into the future, it becomes a forecast; that
the process of envisioning an end is, what commanders think is going to happen based upon their
state and involves a scenario re- assessments. Accordingly, it forks into a forecast of the three
view. A scenario simply is an out- scenarios (i.e., best, worst, and most likely).
line, or model, of a set of expected,
or supposed, sequence of events.
Commanders take the premises that
support a scenario from the situa- provides the upper limit of the po- stops short of unreasonable, cata-
tion at hand. In turn, these supposi- tentialities, but stops short of the strophic consequences. The third
tions will provide some idea of the miraculous. On the other hand, the type of scenario describes the out-
best, worst, and most likely things worst-case scenario represents the come that, based upon all known
that can happen. absolute lower limit and describes factors, is most likely to occur. This
When considering everything the worst possible outcome. Like scenario always lies somewhere
that could happen, the best-case the other, this scenario takes all between the best- and worst-case
scenario defines the absolute upper factors into account, but assumes scenarios. Not surprisingly, the
limit, if everything proceeds well. that actions will prove minimally farther away from the most likely
This scenario takes all factors into effective and unfavorable influ- scenario a plan is oriented, the
account and assumes effective ac- ences will exist. It provides the more unpredictable its outcome.
tions and favorable influences. It lower limit of the potentialities, but Commanders use the most likely

January 2002 / 5
scenario primarily to provide direc- handle such life-altering incidents, 2
The author learned about the event horizon
from the U.S. Marine Corps and helped develop
tion and focus to their efforts while managers can employ a method that
the concept for his department. He discovered
not ignoring the best- and worst- allows them to envision a desirable the scenario review technique while attending
case possibilities. future, or end state, and implement the Command College, Center for Leadership
When commanders use the sce- strategies to achieve a favorable Development, California Commission on Peace
Officers Standards and Training and based this
nario review process in conjunction resolution.
article on a document he composed for training
with the event horizon, they readily By understanding that the inde- supervisors and managers assigned to handle
can see that the manageable future finable future is not quite so uncer- major disasters and other emergency situations.
lies between the present and the tain, administrators can begin to 3
A theory or doctrine that acts of the will,
occurrences in nature, or social or psychological
event horizon and the best- and collect the information that will en-
phenomena are causally determined by
worst-case scenarios. The most able them to forecast an acceptable preceding events or natural laws; Merriam-
likely course of events lies closest outcome to the situation. Then, by Webster’s Collegiate Dictionary, 10th ed.
to the present and along the most looking at a variety of possibilities, (1996), s.v. “determinism.”
4
A theory that in disputed moral questions
likely scenario line. from best- to worst-case scenarios,
any solidly probable course of action may be
managers can plan their courses of followed even though an opposed course is or
CONCLUSION action with greater certainty of suc- appears more probable; Merriam-Webster’s
Catastrophes create grave prob- cess. In turn, they will create a man- Collegiate Dictionary, 10th ed. (1996), s.v.
lems for public safety agencies. Ad- “probabilism.”
ageable, and more desirable, future 5
Conversely, it may be just as effective to
ministrators face the unenviable for themselves and the citizens they inhibit negative influences to avoid their
task of reacting to disasters not only serve. consequences.
with an eye toward the immediate 6
“Driven by events” is a term that describes
needs of the situation, but with the a condition in which the organization is
Endnotes responding or reacting to events, rather than
knowledge that the consequences of 1
Antoine de Saint-Exupéry, The Wisdom of managing them.
their actions can impact future the Sands, trans. Stuart Gilbert (New York, NY:
events for good or ill. To help them Harcourt, Brace and Company,1948), 50.

Bulletin Alert
Hidden Compartment
uring a drug investigation, special
D agents of the FBI’s Cleveland
Office uncovered a hidden compartment in
the passenger seat headrest of a suspect’s
automobile. The compartment was de-
signed to hide a brick of cocaine.

Submitted by Special Agent Robert Hawk


of the FBI’s Cleveland Field Office.

6 / FBI Law Enforcement Bulletin


Book Review

License to Steal–How Fraud Bleeds practitioners. This clearly reflects a tolerant and
America’s Health Care System, updated indifferent attitude.
edition by Dr. Malcolm K. Sparrow, Westview He then describes, in great detail, how
Press, Boulder, Colorado, 2000. controls to date have failed. This is followed by
Few crime problems in the United States have a chapter that describes the tremendous federal
grown as rapidly and extensively as health care effort during the 1990s to combat health care
fraud. In 1999, federal health care fraud efforts fraud and the industry’s response.
produced a 16 percent increase in criminal As a main attribute, this book offers a de-
indictments, 396 convictions, 2,278 civil matters tailed proposed solution to the problem that Dr.
pending, and $524 million obtained from judg- Sparrow terms, “A Model Fraud-Control Strat-
ments, settlements, and administrative proceed- egy.” However, having concluded that health care
ings. With such alarming statistics in mind, Dr. fraud remains uncontrolled, he maintains that two
Malcolm Sparrow’s updated book, License to essential things must happen before this model
Steal–How Fraud Bleeds America’s Health Care strategy can become a reality. First, the industry,
System, stands as a comprehensive, analytical, government, and the public must understand the
illustrative, and useful tool not only for investiga- complexity of the fraud control challenge. And,
tors, but also for anyone even remotely connected second, they must learn the true extent of the
to this issue. crime problem through a commitment to system-
Dr. Sparrow begins by contrasting and atic measurement. In describing this model
comparing the perspectives of the insurance strategy, the author illustrates just how different
industry, government, and consumers. He de- the model is from the current practice in both the
scribes the insurance industry as an attractive private and public sector.
target of fraud, or socially acceptable victim, Dr. Sparrow’s credentials and perspective
which correctly reflects attitudes of many of the also add to the validity of the information he
insured (i.e., customers), as well as that of the provides. A former detective chief inspector with
insurance criminal. This is especially true for the British police service, he currently teaches
government insurance programs. His evidence regulatory and enforcement strategy and analy-
points to one Medicare contractor claims official tical methods at Harvard’s John F. Kennedy
who said, “it’s not our money...just government School of Government. He also specializes in risk
money passing through.” That same official went control and is the acknowledged national expert
on to say, “you know the cheapest way to process on the subject of health care fraud. With this
a claim? Pay it without question.” Dr. Sparrow background and perspective, he has employed
further illustrates this failed approach to safe- some of the most knowledgeable and cooperative
guarding health care dollars with the quote of one sources of information, from both the private
industry official who stated that the approach in and public sector, in his research and provides a
fighting health care fraud to date has been “to pay comprehensive explanation of the nature of this
and chase.” He also cites a 1998 study of actions complex problem.
taken by medical licensing boards against corrupt Reviewed by
practitioners, which showed that 57 percent had Special Agent James A. Robertson
no action taken against them and, more aston- Investigative Training Unit
ishing, 82 percent retained their licenses as FBI Academy

January 2002 / 7
Research Forum

The Impact of Community Growth on the Staffing and


Structure of a Midsized Police Department
By Mike Maloney, B.A., and Leonard Moty, M.B.A.

M any law enforcement agencies have


experienced significant staffing changes in
conjunction with increased community growth over
the last two decades.1 In fact, some California cities
resources of a midsized municipal police department.
However, their findings may help law enforcement
administrators in agencies of any size face similar
challenges.
currently face a crisis in their efforts to provide law
enforcement services to their communities because of THE PROJECT
the high demand for thousands of new police officers The authors created a hypothetical model, named
needed to serve a constantly growing population.2 “Central City,” for their project. They based this
Substantial future growth may impact many law model on the Chico, California, Police Department
enforcement agencies throughout the nation. where the population has increased an average of
Predictably, when agencies focus on the future, nearly 4 percent for each of the last 20 years and
questions will arise, such as what new forms of where analysts predict continued major growth,
organization they must create and how they should primarily through annexation, for the next few years.4
deploy their forces.3 To address these questions, the Additionally, researchers included certain aspects of
authors conducted a futures-oriented project under the the city of Redding, California, and its police depart-
auspices of the Commission on Peace Officer Stan- ment in the model. The cities of Redding and Chico
dards and Training Command College. Although the lie in close proximity to each other, and both cities
authors recognized that a number of issues can affect and police departments have experienced substantial
community growth and that this growth can influence growth over the last 25 years.
a number of community issues, they limited the scope The project included an examination of the issue
of the project to the impact of increased community through a review of the literature and interviews with
growth on the organizational structure and staffing subject-matter experts. Literature reviewed included

8 / FBI Law Enforcement Bulletin


statistical employment data that helped identify police personnel.9 The degree to which a police
municipal police departments in California that agency integrates technology into their organization
experienced substantial growth in short periods of can affect staffing levels as well. Technology either
time. The review of the literature also incorporated can assist in making an organization’s staffing levels
data related to police department staffing levels on the leaner and flatter or may have little influence.10
state and national levels, local data that provided a Regardless of the issues that can affect staffing, at
historical perspective on population and police some point, managers must make a decision on how
department staffing, sources that discussed future many additional personnel to add to their department.
issues in policing, and sources that related to future Data from several sources indicates that a number of
aspects of the business organizations in general. different staffing ratios exist that police managers
Interviews with subject-matter could use to project future
experts included discussions with staffing scenarios for their
representatives of law enforcement departments. They should view
agencies that experienced signifi- their new and existing staff in
cant growth, as well as two city
administrators. The researchers
also used a futures-forecasting
exercise to predict trends and
“ Population growth
remains one issue
terms of some unit of measure,
such as in relation to community
population on a per-capita
basis.11
events that could impact the issue. that may affect Most law enforcement
Based upon a cumulation of staffing needs for administrators will agree that
the information examined, the police departments. funding for additional positions
researchers developed three remains difficult to secure. In


scenarios, each reflective of a addition, as departments add
possible future, and chose one as personnel, administrators must
the most probable. This scenario maintain standards, and most
became the focus for developing a important, they must base their
strategic plan. staffing levels and goals on a predetermined officer-
per-population ratio. Conversely, some city adminis-
THE LITERATURE trators believe that community growth through
Research consistently found that organizations of annexation has great potential to stretch the resources
the future, including police departments, will look of a city and that a police department should base its
flat, lean, flexible, and decentralized, with responsi- staffing increases upon need, rather than a per-
bility and accountability pushed to the lowest levels.5 population ratio.
In addition to the continued existence of dedicated
patrol officers, departments still will need specialized THE PLAN
assignments to address unique or time-consuming The authors convened a group of subject-matter
police problems.6 The integration of the community- experts to forecast trends and events that potentially
oriented policing/problem solving (COPPS) philoso- could impact a police department’s response to
phy into the way police departments conduct business staffing growth. The group identified six trends—
will enhance the overall efficiency of services pro- changing population demographics, cost of technol-
vided and promote community support of law en- ogy, global economy, tax revenue, quantity of quali-
forcement, but agencies will still need to engage in fied applicants, and quality of life. Additionally, they
planning efforts to meet their staffing needs.7 identified six events that could impact a department’s
Population growth remains one issue that may response to staffing growth—less tax revenue, a
affect staffing needs for police departments.8 An mandated retirement package, city council elections,
increase in population will result in additional calls unfunded mandates, the arrival of a large industry in
for service, which will result in a need for additional the city, and a large annexation. These top six trends

January 2002 / 9
and events were used to formulate three fictional services bureaus fall under the criminal investigations
scenarios, each illustrating a possible future that section.
related the potential impact of community growth on The chief of the Central City Police Department
the staffing and organizational structure of a police is excited about the prospects that the upcoming year
department. The researchers labeled the three sce- might hold for her department. Although she is a
narios as best, worst, and most probable and used the young chief, she already has distinguished herself
most probable scenario as a vehicle to develop a plan with her accomplishments. Of particular note is her
to take an agency from its current state to a desired ability to view circumstances related to her depart-
future state. The plan included a description of the ment with careful and reasoned realism. The new city
Central City Police Department’s present situation, an council selected her as chief because they believed
analysis of the department’s internal strengths and that she could successfully maneuver the department
weaknesses and external opportunities and threats through a variety of adversities that would occur in
(SWOT analysis), an assessment of stakeholders, and the near future.
an overview of specific strategies The quality of life and the
to make the most probable sce- community support for the police
nario a reality. department and local government


in Central City has remained high
The Situation for decades. The stable economy
The hypothetical Central City ...police managers makes planning an annual budget
has around 55,000 residents living must consider adding an easy task for Central City
in an urban area of approximately personnel and managers. The city enjoyed about
95,000 inhabitants and constitutes anticipate that the 25 percent growth during the past
the largest city in the county, impact on the 5 years through a planned balance
which has a population of ap- structure will prove of annexation and commercial
proximately 202,000. The city minimal. and residential development. A
houses a state university campus slight increase in sales tax rev-
with approximately 15,000
students, and many of the 14,000
students from a nearby commu-
nity college also reside in the city. Central City is a
” enues for each of the last 5 years
allowed the city to conservatively
expand its services.
The police chief has maintained an acceptable
liberal community, very diverse socioeconomically, a level of service to the public. Although the geographi-
charter city, and governed by a council/city manger cal service area of the department has grown, she has
form of government with a seven-member council. made adjustments to the patrol sectors to accommo-
The Central City Police Department has existed date the growth. Even though the economy and
for nearly 80 years as a full-service law enforcement Central City’s overall fiscal picture remains bright,
agency with a conventional bureaucratic hierarchy the police department has been unable to add posi-
and subscribes to the COPPS philosophy. The depart- tions in direct proportion to the population growth in
ment has 116 full-time employees, 75 of whom are the city. Although the department had maintained
sworn, and a complement of nearly 200 part-time specialized programs, the chief had to justify them
volunteers. The department has two divisions, opera- each year to the city manager and council. Grant
tions and support, each managed by a captain who opportunities, however, have allowed the department
works directly for the chief. The operations division to add personnel in some specialized areas. The
consists of the patrol, traffic, and community outreach department also acquired additional general fund
sections. The support division consists of the commu- positions, but only enough to provide extra patrol
nications, records, animal control, and criminal coverage during peak periods. Full integration of the
investigations sections. The detectives and youth COPPS philosophy and an overall commitment to

10 / FBI Law Enforcement Bulletin


finding ways to work smarter, rather than harder, has correlated primarily to technologies, grants and other
resulted in an efficiently run department. funding, and potential community partnerships, while
The chief entered her new position faced with threats pertained to competition for grant funds,
many dilemmas, one of which was two vacant police politics, and unfavorable views and attitudes toward
officer positions that she was not authorized to fill— law enforcement.
one because an officer would be off work for 6
months due to a work-related injury and another for The Stakeholders
maternity leave. Although the department would feel Assessment identified a number of individuals
the impact of these absences, the chief made tempo- and groups as stakeholders with regard to the issue.
rary staffing adjustments to maintain minimum The authors viewed them from two different perspec-
coverage in patrol areas. tives relative to the department—
At the beginning of the new internal and external. Internally,
fiscal year, the city council will the research identified six
make a retirement system avail- groups: administration/middle
able to public safety employees management, supervisors,
that provides for retirement at an officers, nonsworn personnel, the
earlier age. The chief anticipates peace officer’s association, and
this to affect only three of her volunteers. Externally, the
officers—not a significant research identified five individu-
impact on the department. She als/groups: city manager, city
will maintain a police officer council, business community,
eligibility list through the end of citizens, and special interest
the calendar year, with several groups of the identified stake-
viable experienced candidates. holders. The city manager, the
The chief is pleased with the chief of police, and the peace
future prospects and the current officer’s association proved
personnel available. Although critical for the overall success of
she would like to acquire more the strategic plan.
resources for her department, she must make the best
use of what she has and remain ready for any chal- The Strategies
lenges. Although the city manager and the council Taking into consideration the situation, the results
have committed to a staffing-per-population formula, of the SWOT, and the stakeholder analyses, the
they cannot guarantee funding for projected positions, authors developed four specific strategies. When
but have assured the chief that it will remain one of employed collectively, the strategies could help
their top priorities. achieve the desired future state and also aid the
Central City Police Department in maintaining
The Analysis staffing levels commensurate with the population
The analysis intended to identify internal growth. The strategies promote working smarter,
strengths, weaknesses, opportunities, and threats rather than harder, as members of the Central City
(SWOT) for the Central City Police Department that Police Department are called upon to do more with
could impact the development of specific strategies. proportionately less resources; encourage and rein-
The analysis found that the department’s strengths force the integration of the COPPS philosophy into
related primarily to its high quality of personnel and the way the Central City Police Department conducts
services provided, whereas its weaknesses generally its business; actively cultivate community support of
pertained to the inexperience of staff and employees the department through community enhancement
in particular areas. The opportunities discovered strategies, police and community partnerships, as well

January 2002 / 11
as COPPS-related activities; and develop and promote Police leaders have a choice about the future of
the support of a departmental staffing growth plan law enforcement—they can wait for the future to
that balances identified minimally acceptable staffing happen, or they can make it happen. By creating a
levels and a standard for increasing personnel based growth plan for the future, including the staffing and
on a per-thousand population ratio with the demon- organizational structure of their department, law
strated needs of the community. enforcement leaders will remain better equipped to
develop, propose, and implement alternative re-
The Transition sponses specific to their department.
The researchers posited that the chief of police
would prove the most essential to the successful Endnotes
implementation of the identified strategies and should 1
Commission on Peace Officer Standards and Training, Employment
assume the lead role in the transition of the Central Data for California Law Enforcement, 1978-1998.
City Police Department from its current state to its 2
Rob Dailey, “The Competition For Cops,” Western City, June
desired future state. The chief essentially acts as a 1999, 21.
3
Alvin Toffler and Heidi Toffler, “The Future of Law Enforcement:
intermediary between the city manager and the peace Dangerous and Different, FBI Law Enforcement Bulletin, January 1990,
officer’s association and holds the 21-24.
position to influence both. The 4
City of Chico, General Plan, 1992, 3.1.
5
chief could ensure that her Michael L. Birzer, “Police Supervision in
the 21st Century,” FBI Law Enforcement
department enjoys a successful


Bulletin, June 1996, 6-10; Yvonne C. Turner,
transition by communicating the “Decentralizing the Specialized Unit Function
vision of the desired state and in Small Police Agencies,” The Police Chief,
other educational efforts, employ- ...funding for February 2000, 50-51; Joseph H. Boyett and
Henry P. Conn, Workplace 2000 (New York:
ing role modeling at various additional positions Penguin, 1992), 156.
levels, and recognizing and remains difficult to 6
Neil C. Chamelin, Vernon B. Fox and
rewarding performance that secure. Paul M. Whisenand, Introduction to Criminal
reinforces aspects of the specific Justice, 2nd Edition (New Jersey: Prentice Hall,
Inc., 1979), 95, 122-123; Andrew J. Harvey,
strategies and the desired future


“Building An Organizational Foundation For
state. the Future,” FBI Law Enforcement Bulletin,
November 1996, 12-17; supra note 5, Turner.
CONCLUSION 7
California Office of the Attorney General,
When considering the impact Violence Prevention: A Vision of Hope
(Sacramento: Office of the Attorney General, 1995), 65.
community growth will have on the future staffing 8
N.F. Iannone, Supervision of Police Personnel, 2nd ed. (New Jersey:
resources and organizational structure of their Prentice-Hall, Inc., 1975), 128-130.
departments, police managers must consider adding 9
Robert C. Carden, “What Impact Will Rapid Population Influx Have
personnel and anticipate that the impact on the on Rural Law Enforcement Agencies by the Year 2001?” POST
Command College, July 1996, 5-8.
structure will prove minimal. Additionally, police 10
Peter S. DeLisi, “Lessons from the Steel Axe: Culture, Technology
leaders must ensure that they address all future law and Organizational Change,” Sloan Management Review, Fall 1990, 88;
enforcement interests. Through continued monitoring, supra note 6, Harvey.
11
law enforcement executives should recognize trends Edward P. Ammann and Jim Hey, “Establishing Agency Personnel
Levels,” FBI Law Enforcement Bulletin, July 1986, 16-20.
and anticipate events that potentially could influence
the future of policing. Leaders must develop strategies
for assisting their organization in reaching a benefi- Captain Maloney serves with the Chico, California, Police
cial result and implement a plan to manage the Department. Lieutenant Moty serves with the Redding,
transition of the organization from the present into the California, Police Department.
future.

12 / FBI Law Enforcement Bulletin


Bulletin Reports

Hate Crimes
Addressing Hate Crimes: Six Initiatives That Are Enhancing the Efforts of Criminal Justice
Practitioners, prepared by Stephen Wessler, identifies projects that support police and prosecutorial
agencies in responding to hate crimes. Police officers generally are the first professionals responding
to the scene of a hate crime. Therefore, to successfully carry out their roles, police officers and
prosecutors must receive training on recognizing and investigating potential hate crimes, have clear
protocols on how to respond to hate violence, and develop innovative programs for preventing and
responding to hate crimes. This Bureau of Justice Assistance (BJA) monograph highlights six BJA-
funded projects that demonstrate the creativity and deep commitment of local, state, and federal law
enforcement agencies in leading the nation’s effort to combat bias-motivated crime. The document
supplies sources for additional information as well. To obtain a copy of this monograph (NCJ
179559), contact the National Criminal Justice Reference Service at 800-851-3420 or access its Web
site at http://www.ncjrs.org.

RADAR Flashlight
Laboratory and field test models of the RADAR Flashlight, designed to detect the
respiration signature of a motionless individual standing behind various types of solid
walls, produced promising results. Sworn officers of the Smyrna, Georgia, Police Depart-
ment, who responded to a survey on potential operational features, performance require-
ments, and other possible applications,
field tested the flashlight. Results were
mixed. Responses indicated that the
configuration required very little training Grants/Funding
and was easy to use. In contrast, the
The Bureau of Justice Assistance (BJA) presents
stability of the flashlight was a problem
FY 2001 Local Law Enforcement Block Grants
because any discernible motion gave a
Program, which describes the Local Law Enforcement
false reading and the locking system
Block Grants (LLEBG) Program. It is administered by
produced noise that exposed the officer.
the BJA and provides funds for units of local govern-
The flashlight has not been tested in
ment to reduce crime and improve public safety. This
inclement weather, on wet materials, or in
BJA Fact Sheet provides information on program
extreme cold. For more information on
eligibility, distribution of funds, program purpose
the RADAR Flashlight, access the
areas and requirements, and use of funds. The LLEBG
National Criminal Justice Reference
application process, a listing of other technical assis-
Service’s Web site at
tance programs offered by BJA, and an explanation for
http://www.ncjrs.org.
resolving funding disparities within jurisdictions also
are included. A copy of this report (FS 000268) is
available electronically at http://ncjrs.org/txtfiles1/bja/
fs000268.txt or from the National Criminal Justice
Reference Service at 800-851-3420.

January 2002 / 13
Police and the Sexual
Assault Examination
By CRAIG R. WILSON

S uppose you are a detective


assigned to investigate a
sexual assault complaint.
You know that any physical evi-
dence available in the case will play
a vital role in determining what hap-
pened and whether or not an arrest
will occur and later will affect the
ability of the prosecutor to file
charges and obtain a conviction
against the perpetrator. You will
work closely with a sexual assault
examiner who is a member of a
sexual assault response team, rather
than a member of your department’s
forensic evidence team. If this were
a case of homicide, robbery, or any
other major felony, you would rely
on your department’s crime scene
investigators, medical examiner,
and other forensic analysts to pro-
vide you with facts needed to make
decisions about the case. But this is
a sexual assault case. Why are the
medical professionals who examine
© Mark C. Ide
sexual assault victims not members
of a law enforcement agency foren- needs of the assault victim and to case and takes appropriate action.
sic team? collect physical evidence associ- The examiner assesses, documents,
ated with the complaint. Typical and collects forensic evidence and
THE SEXUAL ASSAULT members of the team include a vic- reports obvious pathology or suspi-
RESPONSE TEAM MODEL tim advocate, a police officer, and a cious findings to the victim with a
Most law enforcement agencies sexual assault examiner. Team suggestion for follow-up care and
throughout the United States rely members work together to ensure a referral. Evaluation and diagnosis
on a variation of the sexual assault sensitive, thorough investigation. of pathology extends beyond the
response team model. Developed The advocate provides support scope of the forensic examination.1
in California, this model involves to the victim and sets the stage Currently, two prevalent team
a coordinated response among for continued services. The police models exist. In the hospital-based
various professionals to meet the officer investigates the facts of the program, a community hospital

14 / FBI Law Enforcement Bulletin


maintains responsibility for the ad- analysis, fingerprint analysis, and cases in a sensitive manner and, too
ministration of the program, includ- blood-spatter evidence. In cases re- often, dismissed a woman’s claim
ing the selection, training, and quiring advanced professional cre- of rape based on cultural miscon-
scheduling of medical personnel in- dentials, such as forensic medical ceptions, bias, or lack of under-
volved. In the second model, the pathology, dentistry, or anthropol- standing. Additionally, the pros-
community-based program, a non- ogy, the police have employed, or ecution of cases suffered due to
profit agency assumes administra- contracted with, professionals for scarce research or specialization in
tive responsibility for the program. those services. In the area of sexual the body of knowledge concerning
Dedicated professionals with un- assault examination, however, the sexual assault.
questionable commitment to the police have not assumed an active To address many of those con-
proper treatment and investigation role. The reasons for the lack of cerns, teams throughout the United
of sexual assault cases support both police involvement in sexual as- States formed. The 1994 Violence
team models. The primary purpose sault examination programs may be Against Women Act provided fund-
of the sexual assault examination, found in the history of the develop- ing for training and program devel-
however, is forensic in nature. The ment of the programs. opment. Nurses who have received
examination is not intended to pro- Nurses and other medical pro- specialized training in the field,
vide medical care, which is per- fessionals, counselors, and advo- have completed a proctorship, and
formed by the emergency depart- cates working with rape victims in are available on a rotating on-call
ment or the victim’s physician, nor hospitals, clinics, and other settings basis usually staff sexual assault re-
to substitute for the services pro- established the first Sexual Assault sponse teams. However, in the ex-
vided by a counselor or therapist. Nurse Examiner programs in Mem- isting model, examiners do not get
The unique purpose of the examina- phis, Tennessee, in 1976, and Min- enough regular exposure to cases
tion is evidentiary-based, which as- neapolis, Minnesota, in 1977. 2 nor enough time to conduct the
sumes that law enforcement later These professionals recognized follow-up, research, or court prepa-
may introduce findings of the ex- the inadequacy of services to ration time to truly develop solid
amination as evidence against a sexual assault victims. Women’s expertise in the field. Examiners
defendant. advocacy groups asserted that law who staff the programs remain
All team members play an im- enforcement did not approach these genuinely devoted to them, but
portant role. But, professionals who
approach the sexual assault exami-
nation with priorities other than the
standards required of forensic evi-
dence collection designed to stand
up in the court system render a dis-
service to the victims of sexual as-
sault. This particularly holds true of
the sexual assault examiner.
“ Law enforcement
agencies...may
play a critical role
THE HISTORY OF
SEXUAL ASSAULT
in the collection
EXAMINER PROGRAMS of forensic
The role of forensic evidence evidence....


collection and examination tradi-
tionally has been assigned to the
police. Police departments employ
Sergeant Wilson serves with the Santa
and train personnel in such forensic Cruz, California, Sheriff’s Office.
areas as evidence collection and

January 2002 / 15
must direct the majority of their Large agencies may employ had to relearn essential job func-
time to their full-time careers. full-time forensic examiners to tions during actual examinations.
Unfortunately, law enforce- conduct examinations. Smaller They could not find enough time to
ment did not play a pivotal role in agencies may devise a funding keep up with the reading, research,
the administration of the newly scheme to share the costs of funding and developments in the field,
formed programs, despite their for an examiner position. To obtain which would prepare them to con-
critical role in the investigation and professional, reliable evidence col- duct the most thorough examination
prosecution of sexual assault cases. lection, departments should employ and later testify in court concerning
While law enforcement may have or contract a full-time forensic ex- their findings.
been slow to recognize and respond aminer to conduct examinations at
to the needs of sexual assault vic- the highest standards. Team Transition
tims in the past, tremendous Due to concerns over the qual-
changes in attitude have taken place ity of the examinations, reliability


within police organizations. Many of findings, and stability of service,
agencies have formed specialized the Criminal Justice Council asked
units to investigate sexual assault Better investigated the Santa Cruz County Sheriff’s Of-
and have trained their officers to fice to submit a proposal concern-
prioritize their response to sexual
and prepared ing how it may assume administra-
assault cases and to treat victims cases enhance tion of the team. The sheriff’s office
with sensitivity while thoroughly the likelihood of recommended the elimination of
investigating cases. Departments a disposition the coordinator model with the ex-
have forged new partnerships with prior to trial. isting funding, which previously
community-based organizations, had supplied the coordinator’s sal-


including women’s advocacy ary, on-call pay, and compensation
groups, and have raised the credibil- for examinations, to fund full-time
ity level of the police by addressing forensic examiners. The sheriff’s
mutual needs. ONE AGENCY’S office assembled a multidiscipli-
EXPERIENCE nary panel, including representa-
A NEW LEADERSHIP ROLE Santa Cruz was one of the first tives from the advocacy, medical,
Law enforcement agencies counties in California to adopt the and prosecutorial communities, and
once again may play a critical role sexual assault response team chose candidates based on their pro-
in the collection of forensic evi- model.3 The team operated in a fessional experience. The selected
dence of sexual assault cases. If ex- manner commonly found through- nurses became full-time examiners,
isting teams work well and the fo- out California: a full-time adminis- rather than nurses who were avail-
rensic standards supply the trative coordinator scheduled sev- able but had careers elsewhere. The
evidence needed to make decisions eral registered nurses who had sheriff’s office also saw the im-
and prosecute cases of sexual as- completed examiner training. The portance of forming partnerships
sault, then no changes may be nec- administrator of the program was with all of the various team mem-
essary. If, however, teams are not the local Criminal Justice Council, bers and program users to ensure
focused clearly on their primary a nonoperational agency. Examin- the best possible program. The of-
roles, experience role conflict, or ers struggled to find the time needed fice established regular meetings
waste valuable energy in political to devote to the program and felt between the team members and us-
conflict, law enforcement should unable to develop true expertise in ers so that interested parties could
assume a leadership role. Clearly, the field. Because the examiners discuss what worked well and what
the examination remains critical to worked on an infrequent, on-call needed further attention to improve
the successful investigation and basis, they often were unfamiliar the quality and service level of the
resolution of a sexual assault case. with procedures and equipment and program.

16 / FBI Law Enforcement Bulletin


Benefits of Increased Law and prepared cases enhance the
Enforcement Involvement likelihood of a disposition prior to Wanted:
The current examiners now trial. A strong, well-prepared case Notable Speeches
have the time necessary to prioritize constitutes the best way to obtain a
and attend professional training, conviction, and a dedicated, well-
stay abreast of current research and trained examiner program repre-
he FBI Law Enforcement
developments, and thoroughly net-
work among other entities in the
sents a key component in obtaining
reliable and relevant forensic evi- T Bulletin seeks transcripts
of presentations made by crim-
criminal justice system. All team dence in a sexual assault complaint.
inal justice professionals for
members have benefitted from the
CONCLUSION its Notable Speech depart-
transition. The examiners have
The concept of designing a ment. Anyone who has
formed instructive relationships
sexual assault examiner program delivered a speech recently
with the local branch of the state
with authority and direction associ- and would like to share the
crime laboratory, agency crime
ated with law enforcement and information with a wider
scene investigators, and prosecu-
staffed by full-time, dedicated ex- audience may submit a trans-
tors. Law enforcement agencies
aminers with a clearly defined mis- cript of the presentation to the
have benefitted from receiving reli-
sion is the next logical step in the Bulletin for consideration.
able, consistent examinations,
development of the field of sexual As with article submis-
which yield more accurate and rel-
assault forensic examination. To sions, the Bulletin staff will
evant information than previously
accomplish this goal, law enforce- edit the speech for length and
available. Prosecutors have been
ment agencies must establish cred- clarity, but, realizing that the
able to train and develop the exam-
ibility within the community by as- information was presented
iners to be the best possible expert
suming responsibility for the orally, maintain as much of
witnesses. Further, the examiners
sensitive and thorough investiga- the original flavor as possible.
are available to conduct case-spe-
tion of all sexual assault com- Presenters should submit their
cific research in preparation for
plaints and providing leadership transcripts typed and double-
court.
concerning this area of criminal spaced on 8 ˚- by 11-inch
The local women’s advocacy
forensics. white paper with all pages
group has formed a close associa-
numbered. When possible, an
tion with the examiners and meet
electronic version of the tran-
regularly to ensure a seamless de- Endnotes
script saved on computer disk
livery of services to sexual assault 1
U.S. Department of Justice, Office of
should accompany the docu-
victims. The local hospitals have Justice Programs, Sexual Assault Nurse
Examiner Development and Operation Guide, ment. Send the material to:
discovered benefits from the exam-
(Minneapolis, MN, 1999), 9.
iners whose interaction with the 2
Ibid., 5. Editor, FBI Law
emergency room staff now are 3
The first Sexual Assault Response Team
Enforcement Bulletin,
consistent and reliable. Finally, and (SART) Program in Santa Cruz, California,
began in June 1986 and was registered nurse- FBI Academy,
most important, sexual assault vic-
based. This multidisciplinary approach was Madison Building,
tims have benefitted. Examiners, based on the SART program in San Luis Room 209,
fully committed to their profession, Obispo County, California, which was
Quantico, VA 22135
can conduct sensitive and thor- physician-based. See, S. Arndt and S.
Goldstein, The SART/SANE Orientation Guide, telephone: 703-632-1952
ough examinations, which provide
1997 (Santa Cruz, CA: Forensic Nursing e-mail: leb@fbiacademy.edu
the tools for law enforcement Services) and Sherry Arndt, interview by
agencies to investigate and arrest author, July 2001.
perpetrators. Better investigated

January 2002 / 17
Perspective
Surviving Assaults The suspect managed to gain control of my holstered
service weapon. As I fought for the gun, he shot me
After the Physical Battle Ends, in the leg. Exhausted and in fear of my life, I man-
the Psychological Battle Begins aged to regain control of my weapon and fatally shoot
By Arthur W. Kureczka, M.S. the suspect once in the chest as he again tried to
© Mark C. Ide
attack me.
I had been a member of the department for 2 ˚
years and had just survived the ultimate test as a
police officer, or so I thought. I soon realized, how-
ever, that the ultimate test would be to survive the
psychological battle that had just begun.
THE PSYCHOLOGICAL BATTLE
I was apprehensive as to what would happen next.
The department did not have a written post-shooting
policy or procedure at that time, so for me, it became
a live-and-learn experience. Over the next week, my
emotional feelings began to break through. I was
fearful that the victim’s relatives or friends would
retaliate against my family and me. I became angry
when the media sensationally labeled the shooting

R esearchers have estimated that approximately


87 percent of all emergency service person-
nel will experience a critical incident—an extraordi-
nary event that causes extraordinary stress reac-
racially controversial, and I was not allowed to
publicly defend their embellished, untrue accounts of
the incident.

tions—at least once in their careers.1 Such occur-


rences include, but are not limited to, line-of-duty
Mr. Kureczka,
deaths or serious injuries, officer-involved shootings, a retired Wethersfield,
life-threatening assaults, deaths of children, deaths Connecticut, Police
caused by officers, hostage situations, highly profiled Department officer,
media events, and multiple victim or mass casualty currently is a program
incidents. As a Wethersfield, Connecticut, police manager and counselor
officer, I became part of this statistical prediction at a Connecticut-based
after surviving a violent, life-and-death struggle.2 private employee
assistance provider.
THE PHYSICAL BATTLE
On November 19, 1982, while on patrol, I re-
ceived a broadcast of an armed robbery that had just
occurred in a nearby town. Shortly afterwards, I
spotted the suspect and vehicle described in the
broadcast and pursued it for several miles. The
suspect stopped and abandoned his vehicle in an
apartment complex; however, the vehicle continued
to roll forward striking and seriously injuring a child.
After a foot chase, I captured the suspect. As I
attempted to handcuff him, a violent struggle ensued.

18 / FBI Law Enforcement Bulletin


As the investigations began, the emotional psychotherapist who worked independently with the
pressure increased. I became anxious for a quick and Connecticut State Police and had counseled other
favorable conclusion. As the weeks dragged on, the officers involved in shootings. With this decision, my
victim’s estate named me in a civil action seeking stress became compounded by my immature, shallow
punitive damages. My doubts began to intensify. I fears regarding trust and, more important, my insecu-
replayed the shooting over and over in my mind, rities of what my family, friends, and peers would
questioning if I could have done anything differently think of me.
and wondering why this had happened to me. After a few visits, I developed trust and confi-
I felt alone, coming from a department in which dence in the counselor. I began to accept, in my own
no one had been involved in a mind, the needed counseling and
shooting situation resulting in stress management. Still, I felt
someone’s death. No one really ashamed and would make excuses
knew what I was feeling, so I
began to isolate my emotions.
Lack of Pre-Incident Academy
Training
“ Through counseling,
I learned that the
emotional feelings
to everyone who knew I was
receiving professional help. I
blamed my department for
sending me and told everyone that
I was okay.
The extraordinary stress that that I experienced
followed was known then as post- were ‘common’ for Impact of Counseling
shooting trauma, an aspect of someone involved in Through counseling, I learned
policing I was never trained for. the use of deadly that the emotional feelings that I
Twenty years ago, the police force. experienced were “common” for
academy training covered most someone involved in the use of
aspects of law enforcement and
prepared me for physical survival.
However, it ignored the psycho-
logical aspects of the profession. The term, critical
” deadly force. In time, I was able
to accept my feelings as normal
and openly talk to others about
the help I received. Surprisingly, my family, friends,
incident stress, had not been conceived. As defined by and coworkers supported me.
recent standards, I had suffered three critical incidents
as a result of the confrontation: a life-threatening Legal Outcomes
assault, an officer-involved shooting that resulted in Two months after the incident, all of the investi-
death, and a highly profiled media event. gations, including the most extensive one ever con-
ducted by the State Attorney’s office, concluded that
Perceptions of the Mental Health Profession the shooting was justified and in self-defense. After a
The day of the incident, my department offered 4-week trial, I was exonerated in my last-resort
me the services of a mental health professional. That decision to use deadly force by a jury that cleared me
produced my initial denial: not me, I didn’t need help. of any civil wrongdoing. Six years after the incident,
After all, the use of deadly force comes with the the legal process finally ended.
territory. I felt that seeing a “shrink” would stereotype
me as weak or crazy. Instead, I began to search for a THE RESOLUTION
trusted peer who I could relate to, someone who could Following my 6-year ordeal, I became an advocate
understand what I was going through. However, my of the mental health profession. I discovered that early
search for a police officer/counselor who also had 1980s research found that 70 percent of officers
used deadly force proved fruitless. involved in the use of deadly force who did not
Approximately 2 weeks after the incident and receive professional help left the job within 5 years,
not knowing where else to turn, I went to a compounded by personal and job-related stress.3 I

January 2002 / 19
wondered what, if anything, I could do to change of a peer support team. I obtained a master’s
this. degree in counseling, and for the past 11 years, I
have instructed at various police academies and
Understanding the Police Personality recertification classes throughout the state of Con-
The police personality stands as a major stum- necticut, thus filling the void that I encountered
bling block in understanding why counseling has during my critical incident.
been slow to evolve. Police officers surround them- In May 2000, I retired from the police department
selves in “image armor” and perceive the expression after 20 years of service. Now, as the program man-
of emotion as a weakness. They are themselves ager at an employee assistance provider that targets
suspicious people, and many find it hard to trust and emergency service personnel, I am a member of the
confide in others, so they isolate their feelings. This incident response team trained in crisis diffusing and
isolation leads to negative insulation that, in turn, debriefing techniques. I facilitate an incident support
leads directly to sick leave abuse, aggressive behav- group for public safety personnel involved in critical
ior, job loss, and high rates of divorce, suicide, and incidents and help officers throughout the country
substance abuse.4 deal with shooting aftermaths.
Because critical incident On a monthly basis, the group
stress manifests itself physically, meets in an informal and confi-
cognitively, and emotionally,
officers might experience some or
all of these reactions immedi-
ately, or perhaps not until after a
“ The police personality
stands as a major
stumbling block in
dential atmosphere that brings
together members of the law
enforcement community who
have a common bond. It is not
delay. While in most instances group therapy; however, informa-
the symptoms will subside in a understanding why tion shared at the meeting is
matter of weeks, a few of those counseling has been educational and may have thera-
affected by such stress will suffer slow to evolve. peutic value. Members of the
permanent emotional trauma that group direct the topics for discus-
adversely will affect their contin-
ued value to the department and
cause serious problems in their
personal lives.5
” sion, and individual participation
is optional. It represents an
exceptional opportunity for
members to share their experiences with each other
Although the increased involvement of the unlike any other method that I have encountered.
“stigmatized” mental health profession to the law One of the most important objectives of the group
enforcement community has been slow to evolve, the involves helping other officers who become involved
fact remains that it is being accepted. Supported by in a critical incident. Their experiences are an invalu-
articles on police stress, critical incident stress, post- able tool to support other officers when dealing with
shooting trauma, and peer support programs pub- the first few days and weeks following an event. By
lished since the late 1980s, the mental health helping another officer, they help themselves. This
community’s commitment constitutes an important supports the idea that “when public safety personnel
proactive concept in modern-day policing. have the opportunity to process a critical incident
properly, they can integrate the experience into their
Creating Support lives in a way that is manageable and mitigate the
To resolve my own experiences and to help long-term potential for post-traumatic stress.”6
others who have endured the psychological battle
of using deadly force, I created a Critical Incident CONCLUSION
Stress Management/Post-Shooting Trauma program Over the past 20 years, I have seen the success of
to address psychological survival at the recruit employee assistance programs and the mental health
level. I received training and became a member profession working together with all levels of the law

20 / FBI Law Enforcement Bulletin


enforcement community. The commitment to provide Endnotes
1
these services not only benefits the involved officers T. Pierson, “Critical Incident Stress: A Serious Law Enforcement
Problem,” Police Chief, February 1989, 32-33.
but also their families, their departments, and the 2
For additional information, contact the author at the toll free
communities they serve. number (888) 327-1060.
It is not a pleasant experience to suffer from 3
M. Ayoob, “The Killing Experience,” Police Product News, July
critical incident stress. No one can predict how 1980.
4
R. Conroy, “Critical Incident Stress Debriefing,” FBI Law
powerful an incident will be or how it will affect Enforcement Bulletin, February 1990, 20-22.
them. While it took strength, courage, and the will to 5
A. Kureczka, Public Safety EAP, UPDATE Newsletter (North
live to survive my physical battle, it took far more Haven, CT, 2000).
6
moral fortitude and emotional resolve to survive the T. Hodges, Public Safety EAP, UPDATE Newsletter (North Haven,
CT, 2001).
aftermath. If anything could be construed as brave or
heroic as a result of my incident, it would be that I
broke through the “image armor” and triumphed over
tragedy by honestly confronting and resolving my
psychological battle, the ultimate test.

Subscribe Now

January 2002 / 21
Legal Digest

© Amelia J. Brooks

Supreme Court Cases


2000-2001 Term
Fourth Amendment. 2 Supreme

D uring the 2000-2001 term, the U.S. constitutional standards


the U.S. Supreme Court before relying on these opinions. Court checkpoint cases have recog-
ruled on several signifi- nized limited exceptions to the gen-
cant constitutional issues relating to City of Indianapolis v. Edmond, eral Fourth Amendment rule that a
criminal law and procedure, as well 121 S. Ct. 447 (2000) seizure must be justified by some
as cases involving the civil liability In 1990, the Supreme Court measure of individualized suspi-
of law enforcement officers acting held that brief, suspicionless sei- cion. In Edmond, the Court declined
in the performance of their official zures at highway checkpoints for to add narcotics checkpoints to the
duties and one case involving the the purpose of combating drunk limited exceptions.
civil liability of state agencies for driving was constitutional.1 In City The opinion distinguished the
violations of the Americans with of Indianapolis v. Edmond, the narcotics checkpoint from the
Disabilities Act. The following is a Court ruled that when the primary drunk driving checkpoint by exam-
brief synopsis of these cases. As purpose of the checkpoint is to lo- ining the motive for the respective
always, local and state agencies cate illegal drugs, the seizure in- stops. The Court recognized that the
must insure that their own state volved is unconstitutional. drunk driving checkpoint was
laws and constitutions have not pro- A vehicle stop at a highway clearly aimed at reducing the imme-
vided even greater protections than checkpoint is a seizure under the diate hazard posed by drunk drivers

22 / FBI Law Enforcement Bulletin


on the highways. On the other Fourth Amendment. Police offi- McArthur’s home was reasonable.
hand, “[w]hen law enforcement au- cers, with probable cause to believe First, the police had probable cause
thorities pursue primarily general that McArthur had hidden mari- to believe that McArthur’s home
crime control purposes at check- juana in his home, knocked on contained evidence of a crime and
points..., stops can only be justified McArthur’s door and requested his unlawful drugs. Second, they had
by some quantum of individualized consent to search his home. He re- good reason to fear that, unless the
suspicion.”3 fused. The investigating police of- home was seized, he would destroy
It is important to note that Jus- ficers then told McArthur that he the drugs before they could return
tice O’Connor’s majority opinion was to stay outside of his home and with a warrant. Third, they avoid-
acknowledged that certain emer- could not reenter it unless accompa- ed an unnecessary, warrantless
gency situations likely would per- nied by a police officer. McArthur entry and warrantless arrest simply
mit checkpoints even if their pri- was prevented from entering the by preventing McArthur from en-
mary purpose was ordinary crime home unaccompanied for about 2 tering his home unaccompanied
control. O’Connor agreed with the hours while the police obtained a (McArthur was not detained).
lower appellate court’s proposition search warrant. When the warrant Fourth, they imposed the restraint
that the “Fourth Amendment would was issued, the officers searched for a limited period, only as long as
almost certainly permit an appropri- McArthur’s home and found drug reasonably necessary for them, act-
ately tailored roadblock set up to paraphernalia and marijuana, re- ing with diligence, to obtain the
thwart an imminent terrorist attack sulting in McArthur’s arrest. He warrant.
or to catch a dangerous criminal was charged with misdemeanor The third and fourth points
who is likely to flee by way of a possession of those items. He made by the Court are the most im-
particular route.”4 Edmond, how- moved to suppress the evidence on portant considerations to law en-
ever, signals the end of routine nar- the ground that it was the “fruit” of forcement. The determination of
cotics checkpoints. an unlawful police seizure, namely, reasonableness is based on the spe-
the refusal to let him reenter his cific facts of each case, that is; the
home unaccompanied. specific circumstances and the
The central requirement of the options available to—and ulti-
Fourth Amendment is one of rea- mately taken by—the police. The
sonableness. Although seizures of fact that the police waited outside
personal property are presumed un- McArthur’s home, thus minimizing
reasonable unless accomplished the time spent inside without a war-
pursuant to a warrant, there are ex- rant, was a significant consideration
ceptions to this rule involving spe- to the Court. Anything police can
cial law enforcement needs and di- do to be less intrusive to the
minished expectations of privacy. subject’s privacy will be well re-
The Court recognized that the cir- ceived by a court later evaluating
cumstances in this case were exi- their reasonableness. Like any tem-
gent, and the seizure of McArthur’s porary Fourth Amendment seizure
home was tailored to that exigency: (such as an investigative detention),
Illinois v. McArthur, it was as limited in time as possible any unnecessary delay or lack
121 S. Ct. 946 (2001) and as unintrusive as possible.5 In of investigative diligence may ren-
The Supreme Court held that a reaching its decision, the Court bal- der a seizure unreasonable. Obvi-
police officer’s refusal to allow anced both privacy and law en- ously the warrant must be secured
residents to enter their homes with- forcement concerns to determine if as quickly as possible, to include
out a police officer until a search the intrusion was reasonable. consideration of a telephonic
warrant was obtained was a reason- The Court cited four reasons for warrant or any other means to
able seizure that did not violate the its conclusion that the seizure of limit the delay. New and emerging

January 2002 / 23
technologies are decreasing the of the state itself, or another state or government can enforce the ADA
time to acquire a warrant. Failing to foreign power. However, Congress against the states in federal court. In
take advantage of a telephonic or may take away the states’ Eleventh addition, states are free to waive
other enhanced method of securing Amendment immunity in certain their immunity and permit suits
a warrant may render the delay un- circumstances. The question before against them for disability discrimi-
necessarily long and, therefore, un- the Court was whether the ADA nation. Some states have done so.
reasonable. properly abrogated that immunity Many states have their own laws
making the states subject to federal prohibiting discrimination. In those
lawsuits under the act. states, people alleging disability
Ms. Garrett was a nurse em- discrimination under state law may
ployed by the University of Ala- be able to assert their ADA claims
bama in Birmingham Hospital, a at the same time in state court.
state hospital. She was diagnosed
with breast cancer and her treatment
forced her to take extended leave
from her job. When she returned,
her employer told her she would
have to give up her former position
as Director of Nursing. She applied
for and received a lower paying job
as a nurse manager. She sued,
claiming the hospital had discrimi-
nated against her based upon her
Board of Trustees of the disability in violation of the ADA.
University of Alabama v. Garrett, The District Court dismissed the
121 S. Ct. 955 (2001) case, finding the state was immune
The question before the Su- from suit under the Eleventh
preme Court in this case was Amendment. The U.S. Court of Ap-
whether the Eleventh Amendment peals for the Eleventh Circuit re- Ferguson v. City of Charleston,
to the Constitution bars federal law- versed, ruling that Congress had 121 S. Ct. 1281 (2001)
suits for money damages by indi- properly abrogated the states’ Elev- In this case, the Supreme Court
viduals against states under the enth Amendment immunity when it addresses the lengths that the police
Americans with Disabilities Act passed the ADA. can go in using medical personnel
(ADA). The Eleventh Amendment The Supreme Court ruled that to provide information for criminal
to the Constitution is brief: “The Congress did not properly abrogate prosecution purposes. In response
Judicial power of the United States the states’ Eleventh Amendment to an increase in the number of pre-
shall not be construed to extend to immunity when it passed the ADA. natal patients who were found to be
any suit in law or equity, com- Consequently, nonconsenting abusing narcotics, a South Carolina
menced or prosecuted against one states, and units of those states such public hospital instituted a policy of
of the United States by Citizens of as state police and state hospitals, testing urine obtained from certain
another State, or by Citizens or Sub- are not subject to lawsuits in federal expectant mothers for the presence
jects of any Foreign State.” The court by private individuals for of narcotics. The policy was in-
Supreme Court has ruled that money damages for violations of tended to protect unborn children
the amendment means that the ADA. by threatening their mothers with
nonconsenting states may not be This opinion does not mean that criminal prosecution for the use of
sued by private individuals in fed- states and state entities are free narcotics (if the use was detected
eral court, whether they are citizens to ignore the ADA. The federal early in the pregnancy) or for child

24 / FBI Law Enforcement Bulletin


endangerment (if the use was de-
tected late in the pregnancy). Only
patients who fell within nine crite-
ria were tested. The testing policy
was instituted after earlier pro-
grams, which only referred patients
who tested positive for narcotics to
abuse counseling, failed to stem the
abuse of narcotics by expectant
mothers. The policy notified pa-
tients that all positive test results
would be forwarded to the police
for possible criminal prosecution
and it set forth procedures to ensure
that proper chain of custody was
maintained during the process. Sev- © Digital Stock

eral women who were arrested after performing the same balancing test use of alcohol contributed to a mo-
testing positive sued the hospital in this case, the Court ruled that the tor vehicle collision), or pursuant to
and police officials for Fourth intrusion here was far more sub- the patient’s voluntary consent, the
Amendment violations. stantial and was not justified by the test results may be used by law en-
Justice Stevens ruled that the perceived “special needs.” Here, forcement for criminal prosecution
policy violated the Fourth Amend- adverse test results were not used to in compliance with the Fourth
ment reasonableness requirement disqualify someone for a benefit, Amendment.
because it constituted an unjustified but were instead used for criminal
warrantless search. The Court de- prosecution. The court ruled that,
cided that the urine test, as adminis- despite the hospital’s assertions that
tered under the policy, was a search it only desired to curtail prenatal
as defined by the Fourth Amend- narcotics abuse, the primary
ment. Therefore, the action was purpose of this testing was law en-
subject to the Fourth Amendment forcement. Absent probable cause
reasonableness requirement. The and a warrant, or consent or exigent
Fourth Circuit Court of Appeals had circumstances, such governmental
previously ruled that the policy was conduct is prohibited by the Fourth
reasonable under the Fourth Amendment. The Court remanded
Amendment because “special the case to determine if the patients’
needs” justified the testing to serve conduct constituted consent to the
nonlaw enforcement ends. The Su- testing.
preme Court rejected this reason- It is important to note that the
ing. The Court ruled that in previ- Court did not prohibit the use of all
ous cases where it had allowed such medical test results in criminal
warrantless, suspicionless searches prosecutions. When such testing is Shaw v. Murphy,
under the “special needs” justifica- done by private hospitals, not acting 121 S. Ct. 1475 (2001)
tion, a balancing of the intrusion at governmental direction, or for In this First Amendment case,
into the individual’s privacy inter- primarily medical purposes, or pur- the Supreme Court ruled that prison
est and the “special needs” that jus- suant to an exigent need (such as inmates do not have heightened pro-
tified the policy resulted in findings drawing blood from someone when tection in their speech when that
in favor of the government.6 In there is a reasonable belief that their speech contains legal advice. The

January 2002 / 25
restriction at issue, the Supreme
Court refused to “cloak the provi-
sion of legal assistance with any
First Amendment protection above
and beyond the protection normally
accorded prisoners’ speech.”11 In
addition to remanding the case for
the relevant analysis, the Court re-
minded the examining lower court
that “because the ‘problems of pris-
ons in America are complex and
intractable,’ and because courts are
particularly ‘ill equipped’ to deal
with [prison] problems, [courts]
generally have deferred to the judg-
© Photo Disc
ments of prison officials in uphold-
case arose when Murphy, an “in- the restricted speech contains po- ing these regulations against consti-
mate law clerk” in the Montana tential legal advice. Rather, the tutional challenge.” 12 Clearly,
State Prison system, attempted to analysis is identical to that applied prison administrators have wide
assist a fellow inmate who had been to restrictions affecting any other latitude in restricting inmate activi-
charged with assault. Murphy sent constitutional rights. ties. Shaw makes clear that their
the charged inmate a letter offering This constitutional analysis re- discretion is not more limited when
his legal advice on the assault quires consideration of four rel- the inmate activity is the dispensing
charge. Pursuant to prison policy, evant factors: 1) the existence of a of legal advice.
the letter was intercepted and re- “‘valid, rational connection’ be-
viewed. Murphy filed a suit alleg- tween the prison regulation and the
ing, among other things, that his legitimate [and neutral] govern-
First Amendment right to free mental interest put forward to
speech had been violated. justify it;” 2) the existence of “alter-
While recognizing that “incar- native means of exercising the
ceration does not divest prisoners of right” available to inmates; 3) “the
all constitutional protections,”7 the impact accommodation of the as-
Supreme Court has recognized that serted constitutional right will have
“the constitutional rights that pris- on guards and other inmates, and on
oners possess are more limited in the allocation of prison resources
scope than the constitutional rights generally;” 4) “the absence of ready
held by individuals in society at alternatives” available to the prison
large.” 8 In 1987, the Supreme for achieving the governmental
Court pronounced that “a prison objectives.10 The Supreme Court
regulation impinging on inmates’ did not conduct the analysis to de-
constitutional rights is valid ‘if it is termine whether the restriction af- Atwater v. City of Lago Vista,
reasonably related to legitimate pe- fecting Murphy was valid; rather, 121 S. Ct. 1536 (2001)
nological interests.’”9 In Shaw, the the case was remanded to the lower This case establishes that custo-
Court pronounced that this standard courts for that determination. dial arrests are reasonable seizures
is not heightened when the prison By remanding the case under the Fourth Amendment re-
regulation in question restricts First with instruction to apply the “ratio- gardless of the possible punishment
Amendment speech rights, even if nal basis” standard to the prison for the crime, which resulted in

26 / FBI Law Enforcement Bulletin


the arrest. Lago Vista is a city in arrest if conviction for the offense thermal imager converts infrared ra-
central Texas. Texas law makes the carried no jail time and the govern- diation, which is invisible to the na-
failure to wear a front seat belt a ment can show no compelling need ked eye, into images that depict the
misdemeanor punishable by a maxi- for immediate detention. Instead, relative temperatures of the object
mum fine of $50. Imprisonment is the Supreme Court confirmed what scanned—dark areas on the image
not a possible penalty. However, as it has held previously: “the standard are cool; light areas are hot. By
in many other states, Texas law per- of probable cause ‘applie[s] to all comparing the thermal image of the
mits police officers to make war- arrests, without the need to balance suspect’s home to that of other
rantless arrests for misdemeanors. the interests and circumstances in- homes in the neighborhood, officers
In March 1997, Gail Atwater was volved in particular situations.’” 14 can determine if more heat is escap-
driving her vehicle with her 3-year- Therefore, officers can make arrests ing from the suspect’s home, indi-
old and 5-year-old children in the whenever they possess probable cating a possible indoor marijuana
front seat. Not one of them was cause that a person has committed growing operation. The result of the
wearing a seatbelt. After being an offense for which an arrest is thermal scan, in combination with
stopped by the police, Atwater was authorized by law. other information developed, is
handcuffed and transported to the then used to secure a search warrant
police station for booking. After her for the suspect’s premises.
mug shot was taken, Atwater was The legal issue raised by the use
placed alone in a cell for 1 hour. She of the thermal imager to scan a
then appeared before a magistrate home is whether or not the scanning
and posted a bond for her release. is a Fourth Amendment search, re-
Although she pleaded no contest to quiring a search warrant or an ex-
the seatbelt violation and paid a $50 ception to the search warrant re-
fine, Atwater and her husband filed quirement. Prior to the Kyllo case,
a Section 1983 civil lawsuit against the majority of U.S. Circuit Courts
the arresting officer, the Lago Vista of Appeals considering the issue
police chief, and the City of Lago decided targeting a home with a
Vista. The constitutional basis for thermal imager was not a Fourth
the civil suit was that Atwater had Amendment search. They reasoned
been subjected to an unreasonable that by taking no steps to conceal
Fourth Amendment seizure. the heat emissions, the home owner
The Supreme Court affirmed exhibited no expectation of privacy
the appellate court’s ruling that the in the “waste heat” and, even if the
Fourth Amendment does not pro- Kyllo v. United States, home owner did have an expecta-
hibit an arrest for a minor criminal 121 S. Ct. 2038 (2001) tion of privacy, it was not objec-
offense, even one punishable only This case raised the issue of tively reasonable. Danny Kyllo
by a fine. The Court stated bluntly whether or not thermal scanning a brought this issue to the Supreme
that “Atwater’s arrest satisfied con- private residence from outside the Court.
stitutional requirements,”13 because residence is a search under the A federal officer suspected that
it was based on probable cause to Fourth Amendment. Indoor mari- Kyllo was growing marijuana in his
believe that Atwater had committed juana growing operations typically home. To bolster his probable cause
a crime in the arresting officer’s require high-intensity lights which to search Kyllo’s home, the officer
presence. Although the Court rec- produce great amounts of heat. The requested a thermal scan of the
ognized that the arrest of Atwater heat generated by the growing op- home. At three o’clock in the morn-
was an exercise of poor judgment, it eration escapes from the home and ing, another officer scanned Kyllo’s
refused to accept her argument ad- can be detected from outside the home from the street. The scan
vocating a rule forbidding custodial home using a thermal imager. The showed that certain areas of the

January 2002 / 27
home were relatively hot compared warrant, absent exceptions such as Saucier had violated his Fourth
to other portions of the home, and consent or emergency. Amendment rights by using exces-
that his home was substantially Kyllo also has broader implica- sive force in arresting him while he
warmer than other homes in the tions. The Supreme Court clearly protested during a speech by former
neighborhood. Based in part on the expressed concerns regarding any vice president Gore at a San Fran-
results of the thermal scan, a federal technology used by police to gather cisco, California, army base.
magistrate issued a warrant to information about the interior of In any civil rights lawsuit alleg-
search Kyllo’s home. Officers any premises from the outside. In ing excessive force, there are two
found marijuana plants. The district light of the Kyllo decision, law en- critical issues: whether the actions
court found that the use of the ther- forcement must reexamine its use of of the arresting officer violated the
mal imager was not a Fourth any technology to probe anywhere a Constitution and, if so, whether the
Amendment search, and refused to reasonable expectation might exist officer is entitled to qualified im-
suppress the marijuana. Kyllo was for compliance with the Fourth munity. The first question is evalu-
convicted, and he appealed. Amendment. ated under the Fourth Amendment
The U.S. Court of Appeals for reasonableness standard that fo-
the Ninth Circuit eventually found cuses on whether the officer’s con-
that using a thermal imager to scan a duct was objectively reasonable.15
home from the street is not a Fourth The second question focuses on
Amendment search. Kyllo then pe- whether the officer’s actions vio-
titioned the Supreme Court, which lated any clearly established law of
agreed to hear his case. which the police officer should
In a five to four decision, the have been aware at the time.16
Supreme Court ruled that targeting The Ninth Circuit Court of Ap-
a home with a thermal imager from peals held that the two questions
outside the home is a search under were essentially identical, because
the Fourth Amendment. The Court both concern the objective reason-
emphasized that inside a private ableness of the officer’s conduct in
home an expectation of privacy light of the circumstances the of-
exists, and that expectation is rea- ficer faced at the scene. The Su-
sonable. Consequently, police use Saucier v. Katz, preme Court disagreed, holding that
of sense-enhancing technology to 121 S. Ct. 2151 (2001) a qualified immunity ruling re-
obtain any information regarding a The Supreme Court held that quires an analysis not susceptible of
private home’s interior that could the inquiry as to whether an arrest- fusion with the question whether
not otherwise have been obtained ing police officer is entitled to unreasonable force was used
without physical intrusion into the qualified immunity for the use of in making the arrest. It held that
home, is a search under the Fourth excessive force is distinct from the each issue must be considered in
Amendment. Absent a search inquiry as to whether the use of proper sequence, and that a ruling
warrant, or an exception to the war- force was objectively reasonable on qualified immunity should be
rant requirement, such a search is under Fourth Amendment exces- made early in the proceedings so
presumptively unreasonable. sive force analysis. The two issues that the cost and expenses of trial
As a practical matter, the Kyllo must be addressed separately and may be avoided. Qualified immu-
case will severely restrict the use of not combined into one question. nity is an entitlement not to stand
thermal imagers to scan private Katz, president of an animal trial, not a defense from liability.
homes or other premises where rights group, filed a suit against The initial inquiry is whether a con-
there is an expectation of privacy. Saucier, a military policeman. Katz stitutional right would have been
Such scans now require a search alleged, among other things, that violated on the facts alleged by the

28 / FBI Law Enforcement Bulletin


plaintiff; if no right was violated, It is difficult to assess what daughter. When the owner of the
there is no need for further inquiry practical effect the Katz decision home returned from work he found
into immunity. However, if a viola- will have on American law enforce- the house burglarized and his fam-
tion could be made viewing the ment. Cases involving an objec- ily missing. After receiving a report
facts in a light most favorable to the tively unreasonable use of force by of the burglary and disappearances,
plaintiff/arrestee, the next, sequen- a police officer where the officer is the police conducted an investiga-
tial step is to inquire whether the entitled to qualified immunity are tion and eventually questioned
right was clearly established at the relatively unusual.19 Also, even Cobb regarding the incident. Cobb
time of the seizure. Like the Fourth though individual officers/defen- admitted to the burglary but denied
Amendment analysis, this inquiry is dants may receive qualified immu- any knowledge of the whereabouts
made in the factual context of the nity, such immunity will not extend of the woman and child.
specific case, not as a broad general to their departments who may re- Cobb was indicted on the bur-
proposition. The relevant inquiry is main liable.20 That said, the tone of glary charge and invoked his Sixth
whether it would be clear to a rea- the opinion in Katz makes clear that Amendment right to counsel. After
sonable officer that the specific the Court pays great deference to being freed on bond, Cobb admitted
conduct was unlawful in the situa- the risks assumed by law enforce- to his father that he had killed the
tion he confronted. ment and strongly reinforces its pre- woman and child. Cobb’s father re-
In overruling the Ninth Circuit, vious decisions in police use of ported his son’s confession to the
the Court reiterated its previous po- force cases. police and a warrant was obtained
sition in Graham v. Connor17 that an for the arrest of Cobb on charges of
officer’s conduct in searching or murder. Following his arrest, Cobb
seizing may be reasonable but still waived his Miranda rights, reiter-
incorrect. The Court gave the ex- ated his confession, and led police
ample of an officer who reasonably, to the location where he had buried
but mistakenly, believes that a sus- the woman and child.
pect is likely to fight back, resulting After a trial, during which
in the officer justifiably using more Cobb’s confession was admitted
force than in fact was needed. The and evidence obtained from the
qualified immunity inquiry’s con- grave site was introduced, Cobb
cern, on the other hand, is to ac- was convicted of capital murder and
knowledge that reasonable mistakes sentenced to death. Cobb subse-
can be made as to the legal con- quently appealed his conviction on
straints on particular police con- the ground that the interrogation
duct. An officer might correctly that followed his arrest on the mur-
perceive all of the relevant facts, but der charges violated his Sixth
have a mistaken understanding as to Texas v. Cobb, Amendment right to counsel. The
whether a particular amount of 121 S. Ct. 1335 (2001) defense argued that the Sixth
force is legal in those circum- In Cobb, the Supreme Court Amendment right to counsel, which
stances. The Court characterized clearly limited the scope of the had attached and had been invoked
the qualified immunity inquiry as protections under the Sixth Amend- with respect to the burglary
having a “further dimension;”18 it ment right to counsel to charged of- charges, precluded any attempts by
made a distinction between a use of fenses. The case arose when the police to deliberately elicit
force being objectively reasonable Raymond Cobb was accused of bur- information from Cobb about the
and a police officer understanding glarizing a home. At the time of the factually related murders. The
whether a particular use of force is burglary, the home was occupied by Court of Criminal Appeals agreed
legal. a woman and her 16-month-old that the murders were “factually

January 2002 / 29
interwoven with the burglary”21 murders. After reviewing the Texas warrants to search Hicks’ home, lo-
and, therefore, Cobb’s Sixth Penal Code, the Court concluded cated on tribal land, for evidence of
Amendment right to counsel had at- that each offense required proof of poaching that occurred on nontribal
tached on the capital murder charge at least one fact that the other did land. Neither search produced evi-
even though he had not been not and, therefore, were not the dence of the alleged crime. How-
charged with the offense at the time same offenses under Blockburger. ever, Hicks claimed that some of his
of the interrogation. Cobb’s convic- Thus, the interrogation did not vio- property had been damaged during
tion was reversed and the case was late Cobb’s Sixth Amendment right the searches and that the second
remanded for a new trial. to counsel and the confession was search exceeded the bounds of the
The Supreme Court made clear admissible. warrant. Hicks filed a Section 1983
its view regarding the scope of the When law enforcement officers civil lawsuit in tribal court alleging
Sixth Amendment protections when find themselves investigating an in- constitutional violations by the
it stated “[t]he Texas Court of dividual who already has been game wardens, as well as claims of
Criminal Appeals held that a crimi- charged with an offense, concerns trespass and other civil wrongs. The
nal defendant’s Sixth Amendment regarding the Sixth Amendment can tribal court decided it had jurisdic-
right to counsel attaches not only to be assuaged by reviewing the crimi- tion over Hicks’ claims. The game
the offense with which he is nal statutes and applying the wardens and the State of Nevada
charged, but to other offenses Blockburger test. If each crime re- appealed that decision. The U.S.
‘closely related factually’ to the quires proof of at least one addi- Circuit Court of Appeals for the
charged offense. We hold that our tional fact, the crimes are not the Ninth Circuit held that the tribal
[earlier] decision in McNeil v. Wis- same for purposes of the Sixth court had jurisdiction because the
consin22 meant what it said, and that Amendment. searches had occurred on land
the Sixth Amendment right is ‘of- owned by the tribe within the
fense specific.’”23 Recognizing that reservation’s boundaries.
many criminal statutes are similar, The case was appealed to the
the definition of an ‘offense’ cannot U.S. Supreme Court. The Court
necessarily be “limited to the four held that 1) the tribal court did not
corners of a charging instrument.”24 have jurisdiction to decide tort
Rather, the Court applied a defini- claims arising from the execution of
tion it had conceived in another search warrants by state officials on
context. In Blockburger v. United tribal land for evidence of crimes
States25 the court explained “where committed outside the boundaries
the same act or transaction consti- of the reservation; 2) the tribal court
tutes a violation of two distinct did not have authority to adjudicate
statutory provisions, the test to be Section 1983 claims; and 3) exhaus-
applied to determine whether there tion of claims in tribal court was not
are two offenses or only one, is required before seeking federal
whether each provision requires court relief. The Court reversed and
proof of a fact, which the other does Nevada v. Hicks, remanded the case.
not.”26 121 S. Ct. 2304 (2001) The Court found that the tribal
Applying the Blockburger test This case involves tribal court court did not automatically have ju-
to the case at hand, the Supreme jurisdiction in a civil liability matter risdiction over the acts Hicks com-
Court noted that, at the time of involving state officials acting plained of simply because they oc-
the confession in question, Cobb within the scope of their employ- curred on tribal land. Land
had been indicted for the burglary ment. On two occasions, Nevada ownership is merely one factor to
but had not been charged in the game wardens obtained state consider. The tribe does have the

30 / FBI Law Enforcement Bulletin


right to make laws and be governed tribal remedies prior to seeking re- 11

12
Shaw, 121 S. Ct. at 1480.
Shaw, 121 S. Ct. at 1479 (quoting Turner
by them, and any tribal assertion of lief in federal court.
v. Safley, 482 U.S. at 404-405).
regulatory authority over nontribal 13
Atwater, 121 S. Ct. at 1557.
members must be tied to those tribal 14
Atwater, 121 S. Ct. at 1557 (quoting
Endnotes
laws. The Court noted, however, 1
Dunaway v. New York, 442 U.S. at 208.
Michigan Dept. of State Police v. Sitz, 496 15
The Court defined this evaluation in
that states have authority to issue U.S. 444 (1990). Graham v. Connor, 490 U.S. 386, 396 (1989):
process authorizing its officials to 2
Id. at 450. Where...the excessive force claim arises in
enter tribal lands to enforce state 3
Edmond, 121 S. Ct. at 457. the context of an arrest or investigatory stop of
4
law. The Court recognized that Id. at 455. a free citizen, it is most properly characterized
5
In this case, the police had been in the as one invoking the protections of the Fourth
states have criminal jurisdiction home immediately prior to having probable Amendment, which guarantees citizens the
over tribal members dwelling on cause of the existence of the contraband, so right “to be secure in their persons...against
reservations for crimes committed they knew no one was in the home. Had they unreasonable...seizures” of the person....
off the reservation. Considering been unsure of whether anyone else was Determining whether the force used to effect a
present, they would have been justified in doing particular seizure is “reasonable” under the
these facts, the Court concluded a “protective sweep” of the home to ensure no Fourth Amendment requires a careful balancing
that tribal authority to regulate state one was present that might destroy the of “ ‘the nature and quality of the intrusion on
officers executing process related to evidence. the individual’s Fourth Amendment interests’ ”
6
the violation of state laws commit- Skinner v. Railway Labor Executives’ against the countervailing governmental
Assn., 109 S. Ct. 1402 (1989) (mandatory interests at stake. Our Fourth Amendment
ted outside the boundaries of narcotics testing of railway employees involved jurisprudence has long recognized that the right
the reservation is not essential to in accidents); Treasury Employees v. Von to make an arrest or investigatory stop
tribal self-government or internal Raab, 109 S. Ct. 1384 (1989) (U.S. Customs necessarily carries with it the right to use some
relations. employees seeking promotion to sensitive degree of physical coercion or threat thereof to
positions); and Vernonia School Dist. 47J v. effect it..... Because “[t]he test of reasonable-
The Court also found that tribal Acton, 115 S. Ct. 2386 (1995) (high school ness under the Fourth Amendment is not
courts are not courts of general ju- students participating in team sports). capable of precise definition or mechanical
risdiction comparable to state 7
121 S. Ct. at 1479. application,” however, its proper application
8
courts. Therefore, they do not have Id. requires careful attention to the facts and
9
121 S. Ct. at 1478 (quoting Turner v. circumstances of each particular case, including
jurisdiction over lawsuits filed un- Safley, 482 U.S. 78, 89 (1987)). the severity of the crime at issue, whether the
der Section 1983. To consider tribal 10
Shaw, 121 S. Ct. at 1479 (quoting Turner suspect poses an immediate threat to the safety
courts as courts of general jurisdic- v. Safley, 482 U.S. at 90.) of the officers or others, and whether he is
tion would create an anomaly in the
law. Title 28 Section, 1441, U.S.
Code permits Section 1983 actions
brought in state courts to be re-
moved to federal courts. However,
the law makes no provision for re-
moval of such actions from tribal
courts into federal courts. Rather
than judicially creating a right of
removal, the Court decided that
tribal courts cannot entertain Sec-
tion 1983 suits. Because tribal
courts lack jurisdiction over Sec-
tion 1983 lawsuits and lawsuits in-
volving state officials performing
their official duties on tribal lands,
the Court concluded that there is no
need for state officials to exhaust

January 2002 / 31
19
actively resisting arrest or attempting to evade discretionary functions, generally are shielded See Cruz v. Laramie, 239 F.3d 1183
arrest by flight. from liability for civil damages insofar as their (2001), Tenth Circuit. The Court of Appeals
The “reasonableness” of a particular use of conduct does not violate clearly established held that the use of “hog-tie” restraint on an
force must be judged from the perspective of a statutory or constitutional rights of which a arrestee whose diminished capacity is apparent
reasonable officer on the scene, rather than with reasonable person would have known.” Harlow constitutes excessive force in violation of the
the 20/20 vision of hindsight. The Fourth v. Fitzgerald, 457 U.S. 800, 818 (1982). See Fourth Amendment, but because the right was
Amendment is not violated by an arrest based also Malley v. Briggs, 475 U.S. 335, 341 not clearly established in June 1996, when such
on probable cause, even though the wrong (1986); where the Court said that qualified a restraint was used on arrestee while he
person is arrested, nor by the mistaken immunity protects “all but the plainly appeared to be on drugs, the officers were
execution of a valid search warrant on the incompetent or those who knowingly violate the protected by qualified immunity with respect to
wrong premises. With respect to a claim of law.” See also Anderson v. Creighton, 483 U.S. federal civil rights claims. See also Tennessee v.
excessive force, the same standard of reason- 635, 640 (1987), in which the Court defined Garner, 471 U.S. 1 (1985) where the Court
ableness at the moment applies: “Not every what constitutes a clearly established right: held that the use of deadly force against an
push or shove, even if it may later seem The contours of the right must be suffi- unarmed nondangerous fleeing subject was
unnecessary in the peace of a judge’s ciently clear that a reasonable official would objectively unreasonable but, as in Cruz, held
chambers,” violates the Fourth Amendment. understand that what he is doing violates that the individual officer/defendants to be immune.
20
The calculus of reasonableness must embody right. This is not to say that an official action is See Monell v. Department of Social
allowance for the fact that police officers are protected by qualified immunity unless the very Services of the City of New York, 436 U.S. 658
often forced to make split-second judgments— action in question has previously been held
in circumstances that are tense, uncertain, and unlawful,... but it is to say that in the light of
rapidly evolving—about the amount of force preexisting law the unlawfulness must be Instructors in the Legal Instruction Unit
that is necessary in a particular situation. apparent. at the FBI Academy prepared this
16
The standard for qualified immunity 17
Supra note 7. article.
18
is “[G]overnment officials performing Saucier, 121 S. Ct. at 2159.

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32 / FBI Law Enforcement Bulletin


The Bulletin Notes
Law enforcement officers are challenged daily in the performance of their duties; they face each
challenge freely and unselfishly while answering the call to duty. In certain instances, their actions
warrant special attention from their respective departments. The Bulletin also wants to recognize
their exemplary service to the law enforcement profession.

As Officers Corey Mertz and Dennis Botefur of the


City of Junction, Oregon, Police Department were
searching a wooded area for stolen property, they noticed
an individual sitting in a pickup truck with the engine
running, the windows up, and a flexible hose running
from the truck’s exhaust pipe to the passenger window.
The officers immediately removed the hose and at-
tempted to get the occupant out of the truck and into the
fresh air. The man quickly became aggressive and angry
at the officers and placed a knife at his own throat.
Officer Mertz Officer Botefur Although the man wanted the officers to shoot him, the
officers were able to use less-than-lethal means to control
the man, place him into custody, and, subsequently, transport him to the hospital. The officers’
perseverance and use of appropriate law enforcement procedures prevented the loss of the man’s life.

Wildlife Officer Mark Hollinhead of the Florida Game and Fresh Water
Fish Commission was on patrol on Lake Okeechobee when a rapidly approach-
ing cold front turned the calm water into a sea of froth. The area is open water
frequented by boaters using small boats to fish. Concerned for the safety of four
men in a small rental boat, Officer Hollinhead returned to the area to find their
boat, quickly taking on water. Three of the men swam to Officer Hollinhead’s
boat while the fourth man was in a state of panic and would not leave the
sinking craft. Officer Hollinhead jumped into the water and brought the man to
his patrol boat. After safely delivering the four men to shore, Officer Hollinhead
returned to the area and found two additional boats submerged with only the
Officer Hollinhead bows above water. He overcame strong winds and dangerous conditions to
maneuver his patrol boat close enough to the floating victims to retrieve all of
them. Officer Hollinhead assisted a total
of four children and eight adults to
safety that day. His quick response and Nominations for the Bulletin Notes should be based on either
the rescue of one or more citizens or arrest(s) made at unusual
dedication to the law enforcement
risk to an officer’s safety. Submissions should include a short
profession led to the successful rescue write-up (maximum of 250 words), a separate photograph of
of these individuals. each nominee, and a letter from the department’s ranking officer
endorsing the nomination. Submissions should be sent to the
Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison
Building, Room 209, Quantico, VA 22135.
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Patch Call

The patch of the Oklahoma State Bureau of The Searcy, Arkansas, Police Department’s patch
Investigation draws from that state’s rich Native depicts landmarks in the downtown area of Searcy,
American heritage and each symbol and color has a including the county courthouse, which was built in
special significance. The center of the patch, derived 1870 and remains the oldest working courthouse in
from the state’s flag, depicts an Osage Indian the state of Arkansas.
warrior’s shield crossed by a peace pipe and an olive
branch. The eagle symbolizes vigilance and the
microscope and scales represent the individual phases
of the agency’s history.