A lot of things go into forming great police officers: recruits need to learn how to fire a weapon. They need to learn about the law. They learn defensive driving and how to investigate crime. But perhaps one of the most important things they can learn are the critical thinking skills needed to help make not only legal but ethical decisions while in the field.
Join us August 31st for this webinar presentation with Thom Dworak as he introduces:
- The legal and ethical decision-making process,
- Understanding bias in the decision-making process,
- The universal question for lawful and ethical policing,
- Why urgency to act determines the strategy an officer implements, and
- How the 4th Amendment concepts of seizure, reasonableness and the acceptable level of governmental intrusion matrix assist in the decision-making process.
Justice Clearinghouse Editors (JCH): Your webinar is specifically about the decision-making process in lawful policing. Let’s start from the beginning: why is it important to address this?
Thomas Dworak: I look at where we're headed and I'm drawn to a scene from movie "Demolition Man," when the criminal Simon Phoenix is brought out of cryo-sleep and the responding officers encounter him. The officers surround Simon Phoenix and the lead officer asks his hand-held device what to do? After being told he repeats those commands to Simon Phoenix. The anti-hero's replies with a scornful remark, which causes the officer to seek further assistance from his hand-held device. The encounter did not end so well for the 6 officers as Simon Phoenix soundly defeats them.
Why? Because the officers were trained that way. They were being told what to do. When faced with an obstacle they never encountered before, they froze. No one taught them how to think, only to follow directions.
In my Adaptive FTO course, I ask experienced field trainers "what do your officers do more of write reports or make decisions?" Their collective response is, "make decisions." Officers make decisions daily.
Do I write the traffic violator a citation or issue a warning?
Do I want to formally arrest a person committing a crime or issue a notice to appear?
Or the ultimate decision, do I take a life to protect myself or others?
Decisions both critical and non-critical occur daily in every facet of law enforcement. But rarely do we teach trainee's or officers how to think, we inherently focus on what to think. Supervisor's or training officers telling their charges what to do, instead of allowing the officer or trainee to develop a solution.
In discussing decision-making with experienced Field Training Officers and Supervisors, their most pressing issues are that trainee's or officers lack common sense and do not have the capacity to think critically. I'll address the common-sense issue in a moment, but to the critical thinking component, my response to the FTO or Supervisor is what are you doing to fix it. Most did not have an answer. It is not their fault, it's the way they were trained. Trainers and Supervisor’s don't spend the time digging into the why and how the decision was made.
The Adaptive FTO training programs address critical thinking by teaching the Field Training Officer (FTO) how to deconstruct decisions through a series of questions that require the trainee to review and assess his/her decision-making process. Together they will also examine what other options (different decisions) were available and what led the trainee to a particular decision.
Some may say it's not fair to challenge the trainee, that it may make them apprehensive about making decisions? As a long time FTO I can tell you the trainee is going to be anyway. The critical thinking feedback process allows the FTO to do several things:
- Deconstruct the decision-making process
- Evaluate the evidence/information the trainee used to make the decision
- Search for other available solutions
- The other available solutions start to fill the trainee's tool box for future decision making.
Lack of common sense is another complaint I hear a lot from experience field trainers. But when we actually break down that argument, from a criminal justice standpoint, common sense is helpful, but really what we’re talking about is UN-common sense.
Common sense, by definition, is something that a vast majority of people have, hence the name common. Common sense takes on a whole new meaning because it doesn't just apply basic reason to a problem. We have to include law (state and/or constitutional) and policy into the mix.
In law enforcement, the 4th Amendment is a guiding force in much or our decision-making. And you might be asking how does someone's right to be free from unreasonable searches and seizure fit into decision-making? Well, officers have to make a decision to detain, arrest, search or use force on a person. Each of those events is controlled by the 4th Amendment through various Supreme Court Decisions.
- Terry v Ohio, reasonable suspicion, probable cause, pat down/frisk
- Gant v Arizona: search incident to arrest
- Graham v Connor: Use of Force
- Tennessee v Garner: Use of Force
Each of these US Supreme Court cases address their issues through the eyes of the 4th Amendment reasonableness inquiry. These and many others are court decisions every officer must know. While it may not figure in a non-critical decision i.e. issuing a citation or verbal warning. It is imperative that officers have a working knowledge of 4th Amendment case law under worst case scenarios.
Criminal Justice training
should focus on the non-linear real world applications.
Thomas Dworak, The Virtus Group
JCH: Some might say that policing is often about “just simply following the law” or “doing what the policies state.” How is this not the case?
Thom: Looking back over my career, there were times when just following policy or the law didn't fit the circumstance. There were times I violated policy, intentionally because it was the right thing to do.
Policy and procedure, rules and regulations or general orders, these provide a guide in what or how an officer does something. They are written in a very segmented or linear manner. A to B to C. And that works well in describing the Chain of Command or the report writing process but does not work well in the non-linear world of criminal justice.
Report writing is a very linear process, check the box, fill in the information and tell the story. It is repetitive and repeatable. Responding to a naked man in the street at 2:00AM is very much non-linear. While the responding officer may envision what outcome she would like to see, the ultimate outcome is unknown. There are many variables to consider: why is the person naked: 1) on drugs 2) emotionally distraught 3) victim of a crime 4) Off their medication along with many others. Policy just can't address every possible outcome.
Criminal Justice training should focus on the non-linear real world applications. You develop adaptive decision-makers through practice, evaluation, feedback and critical thinking review. Not by telling them what to do then checking a box that a learning outcome was covered.
Officers routinely deal with incomplete information and an unknown outcome. Now insert policy and law into the mix. It becomes increasingly complex and defies the laws of human performance that officer can function effectively under these high-stress conditions.
Police departments are increasingly attempting to policy their way into every possible type of occurrence. Policy exists not only to provide guidance in how something is performed but also to control behavior. Agencies will use words like, MUST, ALWAYS, NEVER, SHALL NOT in their policies. Those words are absolutes there can be no variance. Then an incident occurs when the subject doesn’t know the playbook. The officers follow their policy and somewhere down around paragraph 5 section C sub-section i, the subject goes completely off script. The officers continue to follow policy and have a bad outcome. This outcome is the result of the way they were trained. It is difficult to teach officers how to be adaptive if an agency through policy tells officers what to do rather than teaching them how to problem solve.
JCH: Can you provide an example that highlights what you’re describing when you talk about the decision-making process law enforcement faces?
Thom: Law, as it is written, is black and white. Exceeding the posted speed limit is an example. Operating a vehicle 1 MPH over the speed limit is speeding and I could issue a citation for that. But does writing that violation have an effect on traffic safety, or just error trapping the motoring public. Officers have discretion and a lot of it in how they enforce the law. I could write a speeding citation for 1 MPH over the limit, justifying it say "I'm just following the law". The reality of it is that action would be view by the public as an over-reach. Would not be appreciated by your local prosecutor or judge when those citations end up in court and if written in sufficient numbers that act of the traffic stop itself actually makes the roadway more dangerous.
A more complex example would be summoning law enforcement to remove a person from an airplane that did not do anything of a criminal nature. A passenger who paid for ticket, followed all proper security protocols, possessed a valid boarding pass, was legally boarded at the terminal gate and allowed to enter the plane.
While an officer may attempt to negotiate with the person, the officer also has to consider what their legal justification is to remove the passenger from the airplane. The passenger did not break any laws. This is in many ways similar to a neighbor dispute an officer may respond to. Often there is nothing more an officer can do other than attempt to resolve the issue between the parties involved.
Problems begin to arise at the point of impasse. Because we are the police and already are there, we feel the need to do something to resolve the issue. Here is where knowing what you can do and when you can do it come into play. Just because you’re here is not a reason.
Those in the criminal justice career field tend to be problem solvers and very service oriented. The need to provide assistance and to make things better are what draws them into the profession. But there are times when we must just walk away. There are times when doing nothing is an effective strategy. It's an effective strategy because I don't have the LEGAL authority to take any other action.
Teaching officers how to think instead of what to think,
develops adaptive, critical thinkers, who practice lawful and ethical policing.
Thomas Dworak, The Virtus Group
JCH: Why is this is such an important topic for law enforcement organizations to address now?
Thom: When an agency is involved in a "YouTube" moment, the response from the media, politicians and paid political organizers respond from an emotional point of view. Being judged in the court of public opinion is never easy and can have a chilling effect on how law enforcement conducts business. Even a minor decision can be second-guessed to infinity.
But cases are not won or lost in the court of public opinion but in a court of law. The foundation of that law rests on the 4th Amendment and the case law developed from it. It's messy, not easily understood and allows for mistakes.
Understanding the reasonableness inquiry aspect of the 4th Amendment, which on its face would appear to relate to common sense is really uncommon and requires specific knowledge in what constitutes reasonable suspicion, probable cause and what the officer decides to do meet an acceptable level of governmental intrusion. Show me where common sense fits in this equation.
Brain science tells us that under stress "The Professor" or the decision-making part of the brain gets disconnected and the "Caveman" or the emotional brain takes over. Yet we continue to train officers in a very linear, industrialized education model where instructors check a box and an agency can show compliance. Telling ain't training, which reminds me of a lyric from an oldies tune, “Do this, don't do that, can't you read the signs."
Law enforcement officers need scenario-based problem solving, where only part of the answer is known and the outcome is unknown. This open-loop, non-linear style of learning fits well into how officers perform on a daily basis. The Lawful and Ethical decision-making model The Adaptive FTO advocates fits well into this style of learning.
The lawful and ethical decision-making model examines priority of life, the officer's mission or objective and finally, the strategy or tactics selected.
The priority of life asks the question '"Why are we here?" And what, if any, danger is present and to whom.
Mission/Objective examines the authority an officer has under 4th Amendment search and seizure law.
Strategy/Tactics, what an officer is going to do, is driven by urgency or the need to take an action. Violent domestic or an active killing incident the use of superior force would seem like a reasonable choice. But what about the person in emotional crisis, late at night in a contained environment, who is threatening suicide?
The model answers the questions of how and why and it is a continuous circular process, that can change and adapt when the situation changes. Because of the constant evaluation, it provides a method to either escalate or de-escalate depending on changing observations and information.
Going back to the brain science, training in this manner teaches the Caveman" to play nice with the "Professor." Teaching officers how to think instead of what to think, develops adaptive, critical thinkers, who practice lawful and ethical policing.
JCH: You’ve been a police officer for many years. How do you see this kind of information being immediately applicable: as an officer, as a supervisor, or as an agency leader?
Thom: I see it as a win-win-win. Officers become better decision-makers and critical thinkers. The foundation is 4th Amendment search and seizure law. Using the lawful and ethical model it answers all the questions and provides the "why" an officer took or did not take an action.
As a supervisor, you get consistency. Not that every solution is the same but that it is developed from a lawful foundation. Supervisors can do 5-minute roll call exercises with their officers to re-enforce the process. After action reviews are conducted the same way. Consistency is the key.
From an agency point of view, training can be conducted on a more consistent rotation, after action reviews and subsequent learning/development are quicker. When new case law develops, it is easily adapted into the decision-making process. The lawful and ethical model allow for a range of options and assists in developing a growth mindset for the agency.
Final thought here is don’t expect perfection. Perfect solutions exist in books. Real world applications are never text book perfect. If your personal or organizational expectations are that high, good luck.
JCH: The challenges of decision-making in the justice arena aren’t limited to just law enforcement agencies. While a large number of our readers and subscribers are in law enforcement, we have representation from all parts of the justice arena. Can you share some specifics of what different types of justice professionals or first responders will gain by attending your webinar? What skills or new knowledge will they gain that they can immediately use the next day on the job?
Thom: The men and women in any area of the criminal justice field are not perfect. Occasional mistakes are made, not because of ignorance but because human beings make mistakes. Even following the adaptive model mistakes can and will be made. Understand that making errors is how adults learn. Experience is usually the best teacher.
Each role in the criminal justice profession has rules to follow and systems to work in. There are times when the rules don’t fit or the system doesn't work. It is being able to adapt to the situation and environment without stressing out because of it. Stress activates the Caveman and disengages the Professor.
Don't fear making the decision, but also don't run away after it's made. Use the critical thinking questions to deconstruct your decision. This self-reflection give provides in-sights to why and how you make decisions.:
The webinar will provide a list of critical thinking questions that any criminal justice professional can put to use as soon as the webinar is completed. It is your private personal and professional development tool to better decision making.