FBI Law Enforcement Bulletin - Jan02leb

ISSN 0014-5688 USPS 383-310

Features

Departments

6 Bulletin AlertHidden Compartment

7 Book ReviewLicense to Steal

8 Research ForumCommunity Growth

The Manageable Future By Charles S. Heal

Police and the SexualAssault Examination

By Craig R. Wilson

Supreme Court Cases2000-2001 Term

1

January 2002Volume 71Number 1

United StatesDepartment of Justice

Federal Bureau of InvestigationWashington, DC 20535-0001

Robert S. Mueller IIIDirector

Contributors' opinions and statementsshould not be considered an

endorsement by the FBI for any policy,program, or service.

The Attorney General has determinedthat the publication of this periodical is

necessary in the transaction of thepublic business required by law. Useof funds for printing this periodical hasbeen approved by the Director of theOffice of Management and Budget.

The FBI Law Enforcement Bulletin(ISSN-0014-5688) is published

monthly by the Federal Bureau ofInvestigation, 935 PennsylvaniaAvenue, N.W., Washington, D.C.

20535-0001. Periodicals postage paidat Washington, D.C., and additionalmailing offices. Postmaster: Sendaddress changes to Editor, FBI LawEnforcement Bulletin, FBI Academy,

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EditorJohn E. Ott

Associate EditorsGlen BartolomeiCynthia L. LewisBunny S. Morris

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Assistant Art DirectorStephanie L. Lowe

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This publication is produced bymembers of the Law Enforcement

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Cover Photo© Ronald Jeffers

Send article submissions to Editor,FBI Law Enforcement Bulletin, FBIAcademy, Madison Building, Room

209, Quantico, VA 22135.

Agencies should design sexual assaultexaminer programs to ensure asensitive, thorough investigation.

By envisioning an end state, lawenforcement officials can developstrategies to achieve a favorableresolution to critical situations.

22Ten Supreme Court decisions ofparticular importance to lawenforcement are summarized.

14

13 Bulletin ReportsHate CrimesRadar FlashlightGrants/Funding

18 PerspectiveSurviving Assaults

January 2002 / 1

ate in January 1994, the LosAngeles County, Califor-nia, Emergency OperationsL

Center continued recovering fromthe Northridge earthquake, whichoccurred earlier that month. Manypersonnel, however, began to sensethat the operation was windingdown. But, after an employee askeda senior commander when hewanted to resume normal opera-tions, the commander shrugged hisshoulders and laughingly replied,“When everything is back to nor-mal.” The employee responded

As for the future, your task is notto foresee it, but to enable it.

—Antoine de Saint-Exupéry1

establishment of alternate methodsof conveyance. Workers needed torepair damaged buildings and makeroads passable, or bypass them alltogether. Nevertheless, authoritiescould not accomplish all of thesetasks simultaneously. Some con-cerns would compete with othersfor the same resources, causing offi-cials to establish priorities and de-velop a plan. Before any planningcould occur, however, the countywould need to consider an “endstate,” or acceptable outcome, toprovide focus and direction. Whatwould a desirable future look like?How could it be achieved?

Most people probably do notthink of law enforcement officers asfuturists. However, contemplatinga future resolution, or end state,

immediately, “Sir, it’s never goingto be normal.” He was right; thefuture had been indelibly altered.The aftershocks and aftereffectscontinued for months, even years—bridges down, roads impassable,traffic patterns altered, buildingscondemned and boarded up, housesunlivable, and people’s lives for-ever changed.

But the immediate questiondemanded an answer. When wouldnormal operations resume? Alot was at stake. The countyhad reassigned thousands ofworkers to the stricken area, andnormal duties had suffered. Refu-gee centers, designed as temporaryquarters at best, needed assist-ance. The transportation system,brought to a standstill, required the

The ManageableFuture

Envisioningthe End State

By CHARLES S. HEAL, M.S., M.P.A.

© Mark C. Ide

© Christopher S. Porter

2 / FBI Law Enforcement Bulletin

constitutes a critical aspect in op-erational planning, particularly inresponding to major disasters withtheir rapidly unfolding and ambigu-ous circumstances coupled with far-reaching consequences. To aid ingrappling with such events, law en-forcement administrators need toexamine the fundamentals of plan-ning and consider employing amethod for envisioning an end statethat combines identifying the eventhorizon and reviewing scenarios ofpossible outcomes.2 These tech-niques provide a means for emer-gency managers to quickly identifythe manageable future withouttime-consuming and labor-inten-sive analyses. Although designedfor law enforcement officers, themethod has applications for anyonetasked with responding to rapidlyunfolding events.

GENESIS OF THEMANAGEABLE FUTURE

Humankind’s earliest effortsto influence the future almost

certainly began with the hunt forfood. Experience with prey, knowl-edge of the terrain, availability ofweapons, and the skills of otherhunters all played a part in the un-dertaking. The first debriefingsprobably existed as tales around acampfire. But, as humans continuedto hone their skills in stalkingquarry, the significance of criticalfactors became more and more ap-parent. Successful clans exploitedthe lessons that they learned andheld skilled hunters in high esteem.As these groups began fighting witheach other, members easily trans-ferred the skills learned during thehunt to the defense of their clan, aswell as the exploitation of weakertribes.

This ability to work togetherand maximize the lessons learnedserved to encourage the formationof armies and government. Downthrough history, armies gained famefor their innovations in warfare andconquered vast areas of the world.Over time, the effort to reduce

uncertainty and apply scientificprinciples to achieve tactical suc-cess has grown into a large body ofdoctrine. From this knowledge,sound plans can evolve.

FUNDAMENTALSOF PLANNING

First and foremost, planning al-ways attempts to alter the future insome manner. If the future is immu-table, planning would prove point-less. For better or worse, humanswould be doomed to accept theirfate. But, because people canchange the future, they expend greateffort influencing those factorsmost likely to yield a more desirableoutcome. Thus, the axiom—“allplanning is future oriented”—re-mains a viable tenet.

In addition, the future alwaysconsists of more than one possibil-ity. For example, one future willoccur without human intervention.A second future will transpire if theintervention is effective, and stillanother 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 frameworkprovides a foundation for under-standing how administrators canconceive and implement successfultactical interventions.

Because all plans are future ori-ented and designed to bring about amore desirable outcome, anymethod that makes the future morepredictable becomes a valuable aidin planning. Although the future isfraught with uncertainty, this ambi-guity is not distributed equally. Forexample, the closer an event is tothe present, the more predictable itsresolution becomes. By contrast,

”Captain Heal serves with the Special Enforcement Bureau ofthe Los Angeles County, California, Sheriff’s Department.

“Because all plans arefuture oriented...any

method that makes thefuture more predictablebecomes a valuable aid

in planning.

January 2002 / 3

the more distant an event is in thefuture, the more difficult it becomesto imagine the impact of interven-ing actions on the outcome.

Unfortunately, absolute cer-tainty remains an impossibility.However, the more managers canreduce this ambiguity, the more re-liably they can conceive and imple-ment an effective intervention. Thisquest for certainty relies heavilyupon a great amount of accurate andcurrent information. However, ob-taining this information has onemajor flaw—it takes time. Becausethe luxury of time does not exist intactical operations, commanders at-tempting to intervene must react inone of two ways—they can eitherincrease their information process-ing capacity, or they can operate onthe basis of less information. Bothof these approaches have merit andrepresent methods used by tacticalunits throughout the world.

To increase their informationprocessing, agencies can add an-other headquarters, use faster com-puters, or employ more informationgatherers. An organization that op-erates under this method, called“deterministic,”3 tends to centralizeall information by funneling it up-ward to a central processing pointwhere high-ranking officials makeall of the decisions. Such organiza-tions view the necessary opera-tional skills as a science, producinghighly predictable results basedupon proven principles.

The opposite approach, called“probabilistic,”4 describes an orga-nization that views operationalskills as an art. In these types ofagencies, personnel must live withabstractness and operate in an envi-ronment of extreme uncertainty.

vision of the desired end state,commanders’ directions becomeaimless and devoid of a cohesivestrategy.

APPLICATIONS OFTHE END STATE

Because the end state describesthe desired result, or final outcome,of a tactical operation, it is never areturn to the way it was before. Anysituation that requires an interven-tion to achieve a resolution alreadyhas altered the future indelibly.Thus, it is impossible to return to anidentical previous state. Conse-quently, commanders must developa clear picture of what they willneed to achieve a satisfactory endstate to provide a focal point fordirecting efforts to attain it. Withoutthis vision, the operation will run onits own inertia, lacking both guid-ance and impetus. In short, the op-eration becomes an “end in itself,”neither efficient nor effective.

However, inasmuch as the endstate may occur hours, days, weeks,or even months into the future, com-manders cannot obtain a totallyclear vision of the final resolution.Although a certain amount ofvagueness and ambiguity alwayswill exist, commanders can reduceit by limiting the possibilities to arange of likely outcomes. The moreprecisely they define this range, themore they can focus their efforts toachieve a favorable future. This hasmomentous implications for strate-gic planning.

For tactical situations, defininga future can involve two discretesteps. These include identifying theevent horizon and reviewing sce-narios to eliminate the most un-likely possibilities.

“...contemplating afuture resolution, or

end state, constitutesa critical aspect in

operationalplanning....

”

Furthermore, managers must acceptconsiderable risk and take biggerchances. To achieve success, thistype of organization seeks out andvalues people noted for attributes,such as intuition, ingenuity, andinitiative.

A more moderate view supportsa position somewhere betweenthese two extremes. While recog-nizing that they can never attain cer-tainty, commanders still can basesound decisions on the best infor-mation available. This balanced ap-proach advocates using scientific

skills to obtain and evaluate infor-mation to the maximum extent pos-sible while recognizing that timeconstraints will not allow an ex-haustive search for a conclusivepicture. At some point, command-ers will have to make decisionsbased on available information.

Regardless of the approachused, commanders must have someidea of what they wish the end stateto look like to develop an effectiveplan. Then, they can attempt toidentify those actions that will havea positive influence on the ultimateresolution and to implement them ina timely manner.5 Without a clear


The graph illustrates the quest for certainty and visuallydepicts the event horizon. The Y-axis (vertical arrow) repre-sents knowledge and runs the gamut from complete ignoranceto omniscience. The X-axis (horizontal arrow) delineates timeand extends into both the past and the future. The curved linedepicts the confidence level, which represents the degree ofassurance that commanders may anticipate the consequences oftheir actions. The two remaining lines on the graph representthese two extremes—the close (timid) versus the distant (rash)limit of the event horizon. A plan oriented too close to thetimid line usually is ineffectual. In contrast, plans oriented sofar into the future as to make the consequences unpredictableprove reckless because such proposals rely more on guessworkthan sound reasoning. Therefore, an indifferent disregard forthe consequences can result in catastrophic repercussions.

while others may have far-reachingeffects. Generally, higher rankingofficials need to orient the eventhorizon farther into the future. Forexample, in a tactical operation, asergeant most likely would be con-cerned with the detailed deploy-ment of subordinate officers andtheir immediate well-being, while alieutenant may be considering restperiods or shift changes that wouldoccur 12 or more hours into the fu-ture. In the same fashion, a captainprobably would be contemplatingactions that will ensure the eventualsuccess of the operation severaldays into the future, whereas thechief of police may be looking atways to enhance the abilities of thedepartment for similar operations inthe months and years to come. Allof these sets of decisions have theirown criteria and a different eventhorizon, which provides a means ofidentifying that portion of the futurecommanders realistically can influ-ence and so becomes a foundationfor planning.

Commanders never remaincompletely ignorant nor become allknowing; rather, their level ofconfidence gradually increases thecloser it approaches the present.Factors, such as memory lapse andincomplete information, alwaysmake the past somewhat less sureand the future never completelyreliable. In fact, commanders neverwill be more sure of a decisionthan at the moment they makeit; thus, the level of confidencealways is highest at the present. Af-ter commanders make a decision,their level of confidence begins todrop sharply because they, like ev-eryone, cannot determine preciselywhat the future holds. Eventually,

Identify the Event Horizon

The event horizon describesthat portion of the future in whichadministrators reasonably can an-ticipate the consequences of theiractions. This represents the part ofthe future where managers mostlikely can succeed in shaping a de-sirable outcome. It constitutes a

valuable planning aid because itguides commanders to integratetheir decisions and actions into aviable strategy.

Because the consequences ofactions are relative, so too is theevent horizon. Commanders mustanticipate some actions, of neces-sity, relatively close to the present,

The Quest for Certainty

January 2002 / 5

commanders reach a point wherethey can no longer reasonably an-ticipate the impact of their deci-sions, and their level of confidencedrops dramatically. This defines thefarther limit of the event horizon.

However, the closer command-ers orient their decisions to thepresent, the less efficiently theygenerally can achieve their ultimateobjective. These lackluster actionsoften result from overcautious andanxious commanders and usuallyare not bold enough to alter the fu-ture sufficiently to achieve a suc-cessful resolution. Commanderswho fail to implement actions toachieve their end state surrender theinitiative and remain in a reaction-ary posture. This results in the situa-tion being “driven by events.”6

Review Possible Scenarios

Besides identifying the eventhorizon, commanders can refine thefuture further by eliminating thosepossibilities so remote that they donot merit serious consideration.This constitutes the second step inthe process of envisioning an endstate and involves a scenario re-view. A scenario simply is an out-line, or model, of a set of expected,or supposed, sequence of events.Commanders take the premises thatsupport a scenario from the situa-tion at hand. In turn, these supposi-tions will provide some idea of thebest, worst, and most likely thingsthat can happen.

When considering everythingthat could happen, the best-casescenario defines the absolute upperlimit, if everything proceeds well.This scenario takes all factors intoaccount and assumes effective ac-tions and favorable influences. It

The graph illustrates the manageable future and sets outthe consequences of the three case scenarios: best, worst, andmost likely. The consequence line depicts the chain of eventspertaining to their effects (and anticipated effects) on thedesired end state. The lower the line moves, the more undesir-able the consequences. Conversely, the higher it goes, themore desirable they become. In contrast with the confidencelevel used in defining an event horizon, the consequence linealmost always descends from the past to the present. If itascends (improves), the need for intervention may not exist.Also, as the line continues moving toward the present, itreflects not what has happened, but what could happen. Thus,when the line moves into the future, it becomes a forecast; thatis, what commanders think is going to happen based upon theirassessments. Accordingly, it forks into a forecast of the threescenarios (i.e., best, worst, and most likely).

The Manageable Future

provides the upper limit of the po-tentialities, but stops short of themiraculous. On the other hand, theworst-case scenario represents theabsolute lower limit and describesthe worst possible outcome. Likethe other, this scenario takes allfactors into account, but assumesthat actions will prove minimallyeffective and unfavorable influ-ences will exist. It provides thelower limit of the potentialities, but

stops short of unreasonable, cata-strophic consequences. The thirdtype of scenario describes the out-come that, based upon all knownfactors, is most likely to occur. Thisscenario always lies somewherebetween the best- and worst-casescenarios. Not surprisingly, thefarther away from the most likelyscenario a plan is oriented, themore unpredictable its outcome.Commanders use the most likely

scenario primarily to provide direc-tion and focus to their efforts whilenot ignoring the best- and worst-case possibilities.

When commanders use the sce-nario review process in conjunctionwith the event horizon, they readilycan see that the manageable futurelies between the present and theevent horizon and the best- andworst-case scenarios. The mostlikely course of events lies closestto the present and along the mostlikely scenario line.

CONCLUSION

Catastrophes create grave prob-lems for public safety agencies. Ad-ministrators face the unenviabletask of reacting to disasters not onlywith an eye toward the immediateneeds of the situation, but with theknowledge that the consequences oftheir actions can impact futureevents for good or ill. To help them

handle such life-altering incidents,managers can employ a method thatallows them to envision a desirablefuture, or end state, and implementstrategies to achieve a favorableresolution.

By understanding that the inde-finable future is not quite so uncer-tain, administrators can begin tocollect the information that will en-able them to forecast an acceptableoutcome to the situation. Then, bylooking at a variety of possibilities,from best- to worst-case scenarios,managers can plan their courses ofaction with greater certainty of suc-cess. In turn, they will create a man-ageable, and more desirable, futurefor themselves and the citizens theyserve.

Endnotes

1 Antoine de Saint-Exupéry, The Wisdom of

the Sands, trans. Stuart Gilbert (New York, NY:Harcourt, Brace and Company,1948), 50.

2 The author learned about the event horizonfrom the U.S. Marine Corps and helped developthe concept for his department. He discoveredthe scenario review technique while attendingthe Command College, Center for LeadershipDevelopment, California Commission on PeaceOfficers Standards and Training and based thisarticle on a document he composed for trainingsupervisors and managers assigned to handlemajor disasters and other emergency situations.

3 A theory or doctrine that acts of the will,occurrences in nature, or social or psychologicalphenomena are causally determined bypreceding events or natural laws; Merriam-

Webster’s Collegiate Dictionary, 10th ed.(1996), s.v. “determinism.”

4 A theory that in disputed moral questionsany solidly probable course of action may befollowed even though an opposed course is orappears more probable; Merriam-Webster’s

Collegiate Dictionary, 10th ed. (1996), s.v.“probabilism.”

5 Conversely, it may be just as effective toinhibit negative influences to avoid theirconsequences.

6 “Driven by events” is a term that describesa condition in which the organization isresponding or reacting to events, rather thanmanaging them.

Bulletin Alert

uring a drug investigation, specialagents of the FBI’s Cleveland

Submitted by Special Agent Robert Hawkof the FBI’s Cleveland Field Office.

Office uncovered a hidden compartment inthe passenger seat headrest of a suspect’sautomobile. The compartment was de-signed to hide a brick of cocaine.

DHidden Compartment


January 2002 / 7

Book Review

License to Steal–How Fraud BleedsAmerica’s Health Care System, updatededition by Dr. Malcolm K. Sparrow, WestviewPress, Boulder, Colorado, 2000.

Few crime problems in the United States havegrown as rapidly and extensively as health carefraud. In 1999, federal health care fraud effortsproduced a 16 percent increase in criminalindictments, 396 convictions, 2,278 civil matterspending, and $524 million obtained from judg-ments, settlements, and administrative proceed-ings. With such alarming statistics in mind, Dr.Malcolm Sparrow’s updated book, License toSteal–How Fraud Bleeds America’s Health CareSystem, stands as a comprehensive, analytical,illustrative, and useful tool not only for investiga-tors, but also for anyone even remotely connectedto this issue.

Dr. Sparrow begins by contrasting andcomparing the perspectives of the insuranceindustry, government, and consumers. He de-scribes the insurance industry as an attractivetarget of fraud, or socially acceptable victim,which correctly reflects attitudes of many of theinsured (i.e., customers), as well as that of theinsurance criminal. This is especially true forgovernment insurance programs. His evidencepoints to one Medicare contractor claims officialwho said, “it’s not our money...just governmentmoney passing through.” That same official wenton to say, “you know the cheapest way to processa claim? Pay it without question.” Dr. Sparrowfurther illustrates this failed approach to safe-guarding health care dollars with the quote of oneindustry official who stated that the approach infighting health care fraud to date has been “to payand chase.” He also cites a 1998 study of actionstaken by medical licensing boards against corruptpractitioners, which showed that 57 percent hadno action taken against them and, more aston-ishing, 82 percent retained their licenses as

practitioners. This clearly reflects a tolerant andindifferent attitude.

He then describes, in great detail, howcontrols to date have failed. This is followed bya chapter that describes the tremendous federaleffort during the 1990s to combat health carefraud and the industry’s response.

As a main attribute, this book offers a de-tailed proposed solution to the problem that Dr.Sparrow terms, “A Model Fraud-Control Strat-egy.” However, having concluded that health carefraud remains uncontrolled, he maintains that twoessential things must happen before this modelstrategy can become a reality. First, the industry,government, and the public must understand thecomplexity of the fraud control challenge. And,second, they must learn the true extent of thecrime problem through a commitment to system-atic measurement. In describing this modelstrategy, the author illustrates just how differentthe model is from the current practice in both theprivate and public sector.

Dr. Sparrow’s credentials and perspectivealso add to the validity of the information heprovides. A former detective chief inspector withthe British police service, he currently teachesregulatory and enforcement strategy and analy-tical methods at Harvard’s John F. KennedySchool of Government. He also specializes in riskcontrol and is the acknowledged national experton the subject of health care fraud. With thisbackground and perspective, he has employedsome of the most knowledgeable and cooperativesources of information, from both the privateand public sector, in his research and provides acomprehensive explanation of the nature of thiscomplex problem.

Reviewed bySpecial Agent James A. Robertson

Investigative Training UnitFBI Academy


any law enforcement agencies haveexperienced significant staffing changes inM

conjunction with increased community growth overthe last two decades.1 In fact, some California citiescurrently face a crisis in their efforts to provide lawenforcement services to their communities because ofthe high demand for thousands of new police officersneeded to serve a constantly growing population.2

Substantial future growth may impact many lawenforcement agencies throughout the nation.

Predictably, when agencies focus on the future,questions will arise, such as what new forms oforganization they must create and how they shoulddeploy their forces.3 To address these questions, theauthors conducted a futures-oriented project under theauspices of the Commission on Peace Officer Stan-dards and Training Command College. Although theauthors recognized that a number of issues can affectcommunity growth and that this growth can influencea number of community issues, they limited the scopeof the project to the impact of increased communitygrowth on the organizational structure and staffing

resources of a midsized municipal police department.However, their findings may help law enforcementadministrators in agencies of any size face similarchallenges.

THE PROJECT

The authors created a hypothetical model, named“Central City,” for their project. They based thismodel on the Chico, California, Police Departmentwhere the population has increased an average ofnearly 4 percent for each of the last 20 years andwhere analysts predict continued major growth,primarily through annexation, for the next few years.4

Additionally, researchers included certain aspects ofthe city of Redding, California, and its police depart-ment in the model. The cities of Redding and Chicolie in close proximity to each other, and both citiesand police departments have experienced substantialgrowth over the last 25 years.

The project included an examination of the issuethrough a review of the literature and interviews withsubject-matter experts. Literature reviewed included

The Impact of Community Growth on the Staffing andStructure of a Midsized Police DepartmentBy Mike Maloney, B.A., and Leonard Moty, M.B.A.

Research Forum

January 2002 / 9

statistical employment data that helped identifymunicipal police departments in California thatexperienced substantial growth in short periods oftime. The review of the literature also incorporateddata related to police department staffing levels on thestate and national levels, local data that provided ahistorical perspective on population and policedepartment staffing, sources that discussed futureissues in policing, and sources that related to futureaspects of the business organizations in general.Interviews with subject-matterexperts included discussions withrepresentatives of law enforcementagencies that experienced signifi-cant growth, as well as two cityadministrators. The researchersalso used a futures-forecastingexercise to predict trends andevents that could impact the issue.

Based upon a cumulation ofthe information examined, theresearchers developed threescenarios, each reflective of apossible future, and chose one asthe most probable. This scenariobecame the focus for developing astrategic plan.

THE LITERATURE

Research consistently found that organizations ofthe future, including police departments, will lookflat, lean, flexible, and decentralized, with responsi-bility and accountability pushed to the lowest levels.5

In addition to the continued existence of dedicatedpatrol officers, departments still will need specializedassignments to address unique or time-consumingpolice problems.6 The integration of the community-oriented policing/problem solving (COPPS) philoso-phy into the way police departments conduct businesswill enhance the overall efficiency of services pro-vided and promote community support of law en-forcement, but agencies will still need to engage inplanning efforts to meet their staffing needs.7

Population growth remains one issue that mayaffect staffing needs for police departments.8 Anincrease in population will result in additional callsfor service, which will result in a need for additional

police personnel.9 The degree to which a policeagency integrates technology into their organizationcan affect staffing levels as well. Technology eithercan assist in making an organization’s staffing levelsleaner and flatter or may have little influence.10

Regardless of the issues that can affect staffing, atsome point, managers must make a decision on howmany additional personnel to add to their department.Data from several sources indicates that a number ofdifferent staffing ratios exist that police managers

could use to project futurestaffing scenarios for theirdepartments. They should viewtheir new and existing staff interms of some unit of measure,such as in relation to communitypopulation on a per-capitabasis.11

Most law enforcementadministrators will agree thatfunding for additional positionsremains difficult to secure. Inaddition, as departments addpersonnel, administrators mustmaintain standards, and mostimportant, they must base their

staffing levels and goals on a predetermined officer-per-population ratio. Conversely, some city adminis-trators believe that community growth throughannexation has great potential to stretch the resourcesof a city and that a police department should base itsstaffing increases upon need, rather than a per-population ratio.

THE PLAN

The authors convened a group of subject-matterexperts to forecast trends and events that potentiallycould impact a police department’s response tostaffing growth. The group identified six trends—changing population demographics, cost of technol-ogy, global economy, tax revenue, quantity of quali-fied applicants, and quality of life. Additionally, theyidentified six events that could impact a department’sresponse to staffing growth—less tax revenue, amandated retirement package, city council elections,unfunded mandates, the arrival of a large industry inthe city, and a large annexation. These top six trends

”

Population growthremains one issue

that may affectstaffing needs for

police departments.

“


and events were used to formulate three fictionalscenarios, each illustrating a possible future thatrelated the potential impact of community growth onthe staffing and organizational structure of a policedepartment. The researchers labeled the three sce-narios as best, worst, and most probable and used themost probable scenario as a vehicle to develop a planto take an agency from its current state to a desiredfuture state. The plan included a description of theCentral City Police Department’s present situation, ananalysis of the department’s internal strengths andweaknesses and external opportunities and threats(SWOT analysis), an assessment of stakeholders, andan overview of specific strategiesto make the most probable sce-nario a reality.

The Situation

The hypothetical Central Cityhas around 55,000 residents livingin an urban area of approximately95,000 inhabitants and constitutesthe largest city in the county,which has a population of ap-proximately 202,000. The cityhouses a state university campuswith approximately 15,000students, and many of the 14,000students from a nearby commu-nity college also reside in the city. Central City is aliberal community, very diverse socioeconomically, acharter city, and governed by a council/city mangerform of government with a seven-member council.

The Central City Police Department has existedfor nearly 80 years as a full-service law enforcementagency with a conventional bureaucratic hierarchyand subscribes to the COPPS philosophy. The depart-ment has 116 full-time employees, 75 of whom aresworn, and a complement of nearly 200 part-timevolunteers. The department has two divisions, opera-tions and support, each managed by a captain whoworks directly for the chief. The operations divisionconsists of the patrol, traffic, and community outreachsections. The support division consists of the commu-nications, records, animal control, and criminalinvestigations sections. The detectives and youth

services bureaus fall under the criminal investigationssection.

The chief of the Central City Police Departmentis excited about the prospects that the upcoming yearmight hold for her department. Although she is ayoung chief, she already has distinguished herselfwith her accomplishments. Of particular note is herability to view circumstances related to her depart-ment with careful and reasoned realism. The new citycouncil selected her as chief because they believedthat she could successfully maneuver the departmentthrough a variety of adversities that would occur inthe near future.

The quality of life and thecommunity support for the policedepartment and local governmentin Central City has remained highfor decades. The stable economymakes planning an annual budgetan easy task for Central Citymanagers. The city enjoyed about25 percent growth during the past5 years through a planned balanceof annexation and commercialand residential development. Aslight increase in sales tax rev-enues for each of the last 5 yearsallowed the city to conservativelyexpand its services.

The police chief has maintained an acceptablelevel of service to the public. Although the geographi-cal service area of the department has grown, she hasmade adjustments to the patrol sectors to accommo-date the growth. Even though the economy andCentral City’s overall fiscal picture remains bright,the police department has been unable to add posi-tions in direct proportion to the population growth inthe city. Although the department had maintainedspecialized programs, the chief had to justify themeach year to the city manager and council. Grantopportunities, however, have allowed the departmentto add personnel in some specialized areas. Thedepartment also acquired additional general fundpositions, but only enough to provide extra patrolcoverage during peak periods. Full integration of theCOPPS philosophy and an overall commitment to

”

“...police managersmust consider adding

personnel andanticipate that the

impact on thestructure will prove

minimal.

January 2002 / 11

finding ways to work smarter, rather than harder, hasresulted in an efficiently run department.

The chief entered her new position faced withmany dilemmas, one of which was two vacant policeofficer positions that she was not authorized to fill—one because an officer would be off work for 6months due to a work-related injury and another formaternity leave. Although the department would feelthe impact of these absences, the chief made tempo-rary staffing adjustments to maintain minimumcoverage in patrol areas.

At the beginning of the newfiscal year, the city council willmake a retirement system avail-able to public safety employeesthat provides for retirement at anearlier age. The chief anticipatesthis to affect only three of herofficers—not a significantimpact on the department. Shewill maintain a police officereligibility list through the end ofthe calendar year, with severalviable experienced candidates.

The chief is pleased with thefuture prospects and the currentpersonnel available. Althoughshe would like to acquire moreresources for her department, she must make the bestuse of what she has and remain ready for any chal-lenges. Although the city manager and the councilhave committed to a staffing-per-population formula,they cannot guarantee funding for projected positions,but have assured the chief that it will remain one oftheir top priorities.

The Analysis

The analysis intended to identify internalstrengths, weaknesses, opportunities, and threats(SWOT) for the Central City Police Department thatcould impact the development of specific strategies.The analysis found that the department’s strengthsrelated primarily to its high quality of personnel andservices provided, whereas its weaknesses generallypertained to the inexperience of staff and employeesin particular areas. The opportunities discovered

correlated primarily to technologies, grants and otherfunding, and potential community partnerships, whilethreats pertained to competition for grant funds,politics, and unfavorable views and attitudes towardlaw enforcement.

The Stakeholders

Assessment identified a number of individualsand groups as stakeholders with regard to the issue.The authors viewed them from two different perspec-

tives relative to the department—internal and external. Internally,the research identified sixgroups: administration/middlemanagement, supervisors,officers, nonsworn personnel, thepeace officer’s association, andvolunteers. Externally, theresearch identified five individu-als/groups: city manager, citycouncil, business community,citizens, and special interestgroups of the identified stake-holders. The city manager, thechief of police, and the peaceofficer’s association provedcritical for the overall success ofthe strategic plan.

The Strategies

Taking into consideration the situation, the resultsof the SWOT, and the stakeholder analyses, theauthors developed four specific strategies. Whenemployed collectively, the strategies could helpachieve the desired future state and also aid theCentral City Police Department in maintainingstaffing levels commensurate with the populationgrowth. The strategies promote working smarter,rather than harder, as members of the Central CityPolice Department are called upon to do more withproportionately less resources; encourage and rein-force the integration of the COPPS philosophy intothe way the Central City Police Department conductsits business; actively cultivate community support ofthe department through community enhancementstrategies, police and community partnerships, as well


as COPPS-related activities; and develop and promotethe support of a departmental staffing growth planthat balances identified minimally acceptable staffinglevels and a standard for increasing personnel basedon a per-thousand population ratio with the demon-strated needs of the community.

The Transition

The researchers posited that the chief of policewould prove the most essential to the successfulimplementation of the identified strategies and shouldassume the lead role in the transition of the CentralCity Police Department from its current state to itsdesired future state. The chief essentially acts as aintermediary between the city manager and the peaceofficer’s association and holds theposition to influence both. Thechief could ensure that herdepartment enjoys a successfultransition by communicating thevision of the desired state andother educational efforts, employ-ing role modeling at variouslevels, and recognizing andrewarding performance thatreinforces aspects of the specificstrategies and the desired futurestate.

CONCLUSION

When considering the impactcommunity growth will have on the future staffingresources and organizational structure of theirdepartments, police managers must consider addingpersonnel and anticipate that the impact on thestructure will prove minimal. Additionally, policeleaders must ensure that they address all future lawenforcement interests. Through continued monitoring,law enforcement executives should recognize trendsand anticipate events that potentially could influencethe future of policing. Leaders must develop strategiesfor assisting their organization in reaching a benefi-cial result and implement a plan to manage thetransition of the organization from the present into thefuture.

”

“...funding foradditional positionsremains difficult to

secure.

Police leaders have a choice about the future oflaw enforcement—they can wait for the future tohappen, or they can make it happen. By creating agrowth plan for the future, including the staffing andorganizational structure of their department, lawenforcement leaders will remain better equipped todevelop, propose, and implement alternative re-sponses specific to their department.

Endnotes

1 Commission on Peace Officer Standards and Training, EmploymentData for California Law Enforcement, 1978-1998.

2 Rob Dailey, “The Competition For Cops,” Western City, June1999, 21.

3 Alvin Toffler and Heidi Toffler, “The Future of Law Enforcement:Dangerous and Different, FBI Law Enforcement Bulletin, January 1990,

21-24.4 City of Chico, General Plan, 1992, 3.1.5 Michael L. Birzer, “Police Supervision in

the 21st Century,” FBI Law Enforcement

Bulletin, June 1996, 6-10; Yvonne C. Turner,“Decentralizing the Specialized Unit Functionin Small Police Agencies,” The Police Chief,February 2000, 50-51; Joseph H. Boyett andHenry P. Conn, Workplace 2000 (New York:Penguin, 1992), 156.

6 Neil C. Chamelin, Vernon B. Fox andPaul M. Whisenand, Introduction to Criminal

Justice, 2nd Edition (New Jersey: Prentice Hall,Inc., 1979), 95, 122-123; Andrew J. Harvey,“Building An Organizational Foundation Forthe Future,” FBI Law Enforcement Bulletin,

November 1996, 12-17; supra note 5, Turner.7 California Office of the Attorney General,

Violence Prevention: A Vision of Hope

(Sacramento: Office of the Attorney General, 1995), 65.8 N.F. Iannone, Supervision of Police Personnel, 2nd ed. (New Jersey:

Prentice-Hall, Inc., 1975), 128-130.9 Robert C. Carden, “What Impact Will Rapid Population Influx Have

on Rural Law Enforcement Agencies by the Year 2001?” POST

Command College, July 1996, 5-8.10 Peter S. DeLisi, “Lessons from the Steel Axe: Culture, Technology

and Organizational Change,” Sloan Management Review, Fall 1990, 88;supra note 6, Harvey.

11 Edward P. Ammann and Jim Hey, “Establishing Agency PersonnelLevels,” FBI Law Enforcement Bulletin, July 1986, 16-20.

Captain Maloney serves with the Chico, California, PoliceDepartment. Lieutenant Moty serves with the Redding,California, Police Department.

January 2002 / 13

Laboratory and field test models of the RADAR Flashlight, designed to detect therespiration signature of a motionless individual standing behind various types of solidwalls, 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 weremixed. Responses indicated that theconfiguration required very little trainingand was easy to use. In contrast, thestability of the flashlight was a problembecause any discernible motion gave afalse reading and the locking systemproduced noise that exposed the officer.The flashlight has not been tested ininclement weather, on wet materials, or inextreme cold. For more information onthe RADAR Flashlight, access theNational Criminal Justice ReferenceService’s Web site athttp://www.ncjrs.org.

RADAR Flashlight

Hate Crimes

The Bureau of Justice Assistance (BJA) presentsFY 2001 Local Law Enforcement Block GrantsProgram, which describes the Local Law EnforcementBlock Grants (LLEBG) Program. It is administered bythe BJA and provides funds for units of local govern-ment to reduce crime and improve public safety. ThisBJA Fact Sheet provides information on programeligibility, distribution of funds, program purposeareas and requirements, and use of funds. The LLEBGapplication process, a listing of other technical assis-tance programs offered by BJA, and an explanation forresolving funding disparities within jurisdictions alsoare included. A copy of this report (FS 000268) isavailable electronically at http://ncjrs.org/txtfiles1/bja/fs000268.txt or from the National Criminal JusticeReference Service at 800-851-3420.

Grants/Funding

Bulletin Reports

Addressing Hate Crimes: Six Initiatives That Are Enhancing the Efforts of Criminal JusticePractitioners, prepared by Stephen Wessler, identifies projects that support police and prosecutorialagencies in responding to hate crimes. Police officers generally are the first professionals respondingto the scene of a hate crime. Therefore, to successfully carry out their roles, police officers andprosecutors must receive training on recognizing and investigating potential hate crimes, have clearprotocols on how to respond to hate violence, and develop innovative programs for preventing andresponding 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 lawenforcement agencies in leading the nation’s effort to combat bias-motivated crime. The documentsupplies sources for additional information as well. To obtain a copy of this monograph (NCJ179559), contact the National Criminal Justice Reference Service at 800-851-3420 or access its Website at http://www.ncjrs.org.


uppose you are a detectiveassigned to investigate asexual assault complaint.

Police and the SexualAssault ExaminationBy CRAIG R. WILSON

SYou know that any physical evi-dence available in the case will playa vital role in determining what hap-pened and whether or not an arrestwill occur and later will affect theability of the prosecutor to filecharges and obtain a convictionagainst the perpetrator. You willwork closely with a sexual assaultexaminer who is a member of asexual assault response team, ratherthan a member of your department’sforensic evidence team. If this werea case of homicide, robbery, or anyother major felony, you would relyon your department’s crime sceneinvestigators, medical examiner,and other forensic analysts to pro-vide you with facts needed to makedecisions about the case. But this isa sexual assault case. Why are themedical professionals who examinesexual assault victims not membersof a law enforcement agency foren-sic team?

THE SEXUAL ASSAULTRESPONSE TEAM MODEL

Most law enforcement agenciesthroughout the United States relyon a variation of the sexual assaultresponse team model. Developedin California, this model involvesa coordinated response amongvarious professionals to meet the

needs of the assault victim and tocollect physical evidence associ-ated with the complaint. Typicalmembers of the team include a vic-tim advocate, a police officer, and asexual assault examiner. Teammembers work together to ensure asensitive, thorough investigation.The advocate provides supportto the victim and sets the stagefor continued services. The policeofficer investigates the facts of the

case and takes appropriate action.The examiner assesses, documents,and collects forensic evidence andreports obvious pathology or suspi-cious findings to the victim with asuggestion for follow-up care andreferral. Evaluation and diagnosisof pathology extends beyond thescope of the forensic examination.1

Currently, two prevalent teammodels exist. In the hospital-basedprogram, a community hospital

© Mark C. Ide

January 2002 / 15

“

”

Law enforcementagencies...may

play a critical rolein the collection

of forensicevidence....

Sergeant Wilson serves with the SantaCruz, California, Sheriff’s Office.

maintains responsibility for the ad-ministration of the program, includ-ing the selection, training, andscheduling of medical personnel in-volved. In the second model, thecommunity-based program, a non-profit agency assumes administra-tive responsibility for the program.Dedicated professionals with un-questionable commitment to theproper treatment and investigationof sexual assault cases support bothteam models. The primary purposeof the sexual assault examination,however, is forensic in nature. Theexamination is not intended to pro-vide medical care, which is per-formed by the emergency depart-ment or the victim’s physician, norto substitute for the services pro-vided by a counselor or therapist.The unique purpose of the examina-tion is evidentiary-based, which as-sumes that law enforcement latermay introduce findings of the ex-amination as evidence against adefendant.

All team members play an im-portant role. But, professionals whoapproach the sexual assault exami-nation with priorities other than thestandards required of forensic evi-dence collection designed to standup in the court system render a dis-service to the victims of sexual as-sault. This particularly holds true ofthe sexual assault examiner.

THE HISTORY OFSEXUAL ASSAULTEXAMINER PROGRAMS

The role of forensic evidencecollection and examination tradi-tionally has been assigned to thepolice. Police departments employand train personnel in such forensicareas as evidence collection and

analysis, fingerprint analysis, andblood-spatter evidence. In cases re-quiring advanced professional cre-dentials, such as forensic medicalpathology, dentistry, or anthropol-ogy, the police have employed, orcontracted with, professionals forthose services. In the area of sexualassault examination, however, thepolice have not assumed an activerole. The reasons for the lack ofpolice involvement in sexual as-sault examination programs may befound in the history of the develop-ment of the programs.

Nurses and other medical pro-fessionals, counselors, and advo-cates working with rape victims inhospitals, clinics, and other settingsestablished the first Sexual AssaultNurse Examiner programs in Mem-phis, Tennessee, in 1976, and Min-neapolis, Minnesota, in 1977.2

These professionals recognizedthe inadequacy of services tosexual assault victims. Women’sadvocacy groups asserted that lawenforcement did not approach these

cases in a sensitive manner and, toooften, dismissed a woman’s claimof rape based on cultural miscon-ceptions, bias, or lack of under-standing. Additionally, the pros-ecution of cases suffered due toscarce research or specialization inthe body of knowledge concerningsexual assault.

To address many of those con-cerns, teams throughout the UnitedStates formed. The 1994 ViolenceAgainst Women Act provided fund-ing for training and program devel-opment. Nurses who have receivedspecialized training in the field,have completed a proctorship, andare available on a rotating on-callbasis usually staff sexual assault re-sponse teams. However, in the ex-isting model, examiners do not getenough regular exposure to casesnor enough time to conduct thefollow-up, research, or court prepa-ration time to truly develop solidexpertise in the field. Examinerswho staff the programs remaingenuinely devoted to them, but

must direct the majority of theirtime to their full-time careers.

Unfortunately, law enforce-ment did not play a pivotal role inthe administration of the newlyformed programs, despite theircritical role in the investigation andprosecution of sexual assault cases.While law enforcement may havebeen slow to recognize and respondto the needs of sexual assault vic-tims in the past, tremendouschanges in attitude have taken placewithin police organizations. Manyagencies have formed specializedunits to investigate sexual assaultand have trained their officers toprioritize their response to sexualassault cases and to treat victimswith sensitivity while thoroughlyinvestigating cases. Departmentshave forged new partnerships withcommunity-based organizations,including women’s advocacygroups, and have raised the credibil-ity level of the police by addressingmutual needs.

A NEW LEADERSHIP ROLE

Law enforcement agenciesonce again may play a critical rolein the collection of forensic evi-dence of sexual assault cases. If ex-isting teams work well and the fo-rensic standards supply theevidence needed to make decisionsand prosecute cases of sexual as-sault, then no changes may be nec-essary. If, however, teams are notfocused clearly on their primaryroles, experience role conflict, orwaste valuable energy in politicalconflict, law enforcement shouldassume a leadership role. Clearly,the examination remains critical tothe successful investigation andresolution of a sexual assault case.

Large agencies may employfull-time forensic examiners toconduct examinations. Smalleragencies may devise a fundingscheme to share the costs of fundingfor an examiner position. To obtainprofessional, reliable evidence col-lection, departments should employor contract a full-time forensic ex-aminer to conduct examinations atthe highest standards.

ONE AGENCY’SEXPERIENCE

Santa Cruz was one of the firstcounties in California to adopt thesexual assault response teammodel.3 The team operated in amanner commonly found through-out California: a full-time adminis-trative coordinator scheduled sev-eral registered nurses who hadcompleted examiner training. Theadministrator of the program wasthe local Criminal Justice Council,a nonoperational agency. Examin-ers struggled to find the time neededto devote to the program and feltunable to develop true expertise inthe field. Because the examinersworked on an infrequent, on-callbasis, they often were unfamiliarwith procedures and equipment and

had to relearn essential job func-tions during actual examinations.They could not find enough time tokeep up with the reading, research,and developments in the field,which would prepare them to con-duct the most thorough examinationand later testify in court concerningtheir findings.

Team Transition

Due to concerns over the qual-ity of the examinations, reliabilityof findings, and stability of service,the Criminal Justice Council askedthe Santa Cruz County Sheriff’s Of-fice to submit a proposal concern-ing how it may assume administra-tion of the team. The sheriff’s officerecommended the elimination ofthe coordinator model with the ex-isting funding, which previouslyhad supplied the coordinator’s sal-ary, on-call pay, and compensationfor examinations, to fund full-timeforensic examiners. The sheriff’soffice assembled a multidiscipli-nary panel, including representa-tives from the advocacy, medical,and prosecutorial communities, andchose candidates based on their pro-fessional experience. The selectednurses became full-time examiners,rather than nurses who were avail-able but had careers elsewhere. Thesheriff’s office also saw the im-portance of forming partnershipswith all of the various team mem-bers and program users to ensurethe best possible program. The of-fice established regular meetingsbetween the team members and us-ers so that interested parties coulddiscuss what worked well and whatneeded further attention to improvethe quality and service level of theprogram.

Better investigatedand prepared

cases enhancethe likelihood of

a dispositionprior to trial.

”“


January 2002 / 17

Benefits of Increased LawEnforcement Involvement

The current examiners nowhave the time necessary to prioritizeand attend professional training,stay abreast of current research anddevelopments, and thoroughly net-work among other entities in thecriminal justice system. All teammembers have benefitted from thetransition. The examiners haveformed instructive relationshipswith the local branch of the statecrime laboratory, agency crimescene investigators, and prosecu-tors. Law enforcement agencieshave benefitted from receiving reli-able, consistent examinations,which yield more accurate and rel-evant information than previouslyavailable. Prosecutors have beenable to train and develop the exam-iners to be the best possible expertwitnesses. Further, the examinersare available to conduct case-spe-cific research in preparation forcourt.

The local women’s advocacygroup has formed a close associa-tion with the examiners and meetregularly to ensure a seamless de-livery of services to sexual assaultvictims. The local hospitals havediscovered benefits from the exam-iners whose interaction with theemergency room staff now areconsistent and reliable. Finally, andmost important, sexual assault vic-tims have benefitted. Examiners,fully committed to their profession,can conduct sensitive and thor-ough examinations, which providethe tools for law enforcementagencies to investigate and arrestperpetrators. Better investigated

and prepared cases enhance thelikelihood of a disposition prior totrial. A strong, well-prepared caseconstitutes the best way to obtain aconviction, and a dedicated, well-trained examiner program repre-sents a key component in obtainingreliable and relevant forensic evi-dence in a sexual assault complaint.

CONCLUSION

The concept of designing asexual assault examiner programwith authority and direction associ-ated with law enforcement andstaffed by full-time, dedicated ex-aminers with a clearly defined mis-sion is the next logical step in thedevelopment of the field of sexualassault forensic examination. Toaccomplish this goal, law enforce-ment agencies must establish cred-ibility within the community by as-suming responsibility for thesensitive and thorough investiga-tion of all sexual assault com-plaints and providing leadershipconcerning this area of criminalforensics.

Endnotes

1 U.S. Department of Justice, Office ofJustice Programs, Sexual Assault Nurse

Examiner Development and Operation Guide,(Minneapolis, MN, 1999), 9.

2 Ibid., 5.3 The first Sexual Assault Response Team

(SART) Program in Santa Cruz, California,began in June 1986 and was registered nurse-based. This multidisciplinary approach wasbased on the SART program in San LuisObispo County, California, which wasphysician-based. See, S. Arndt and S.Goldstein, The SART/SANE Orientation Guide,1997 (Santa Cruz, CA: Forensic NursingServices) and Sherry Arndt, interview byauthor, July 2001.

Wanted:Notable Speeches

he FBI Law EnforcementBulletin seeks transcriptsT

of presentations made by crim-inal justice professionals forits Notable Speech depart-ment. Anyone who hasdelivered a speech recentlyand would like to share theinformation with a wideraudience may submit a trans-cript of the presentation to theBulletin for consideration.

As with article submis-sions, the Bulletin staff willedit the speech for length andclarity, but, realizing that theinformation was presentedorally, maintain as much ofthe original flavor as possible.Presenters should submit theirtranscripts typed and double-spaced on 8 ˚- by 11-inchwhite paper with all pagesnumbered. When possible, anelectronic version of the tran-script saved on computer diskshould accompany the docu-ment. Send the material to:

Editor, FBI LawEnforcement Bulletin,FBI Academy,Madison Building,Room 209,Quantico, VA 22135telephone: 703-632-1952e-mail: [email protected]


esearchers have estimated that approximately87 percent of all emergency service person-

Surviving AssaultsAfter the Physical Battle Ends,the Psychological Battle BeginsBy Arthur W. Kureczka, M.S.

Mr. Kureczka,a retired Wethersfield,

Connecticut, PoliceDepartment officer,

currently is a programmanager and counselorat a Connecticut-based

private employeeassistance provider.

Rnel will experience a critical incident—an extraordi-nary event that causes extraordinary stress reac-tions—at least once in their careers.1 Such occur-rences include, but are not limited to, line-of-dutydeaths or serious injuries, officer-involved shootings,life-threatening assaults, deaths of children, deathscaused by officers, hostage situations, highly profiledmedia events, and multiple victim or mass casualtyincidents. As a Wethersfield, Connecticut, policeofficer, I became part of this statistical predictionafter surviving a violent, life-and-death struggle.2

THE PHYSICAL BATTLE

On November 19, 1982, while on patrol, I re-ceived a broadcast of an armed robbery that had justoccurred in a nearby town. Shortly afterwards, Ispotted the suspect and vehicle described in thebroadcast and pursued it for several miles. Thesuspect stopped and abandoned his vehicle in anapartment complex; however, the vehicle continuedto roll forward striking and seriously injuring a child.After a foot chase, I captured the suspect. As Iattempted to handcuff him, a violent struggle ensued.

The suspect managed to gain control of my holsteredservice weapon. As I fought for the gun, he shot mein the leg. Exhausted and in fear of my life, I man-aged to regain control of my weapon and fatally shootthe suspect once in the chest as he again tried toattack me.

I had been a member of the department for 2 ˚years and had just survived the ultimate test as apolice officer, or so I thought. I soon realized, how-ever, that the ultimate test would be to survive thepsychological 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-shootingpolicy or procedure at that time, so for me, it becamea live-and-learn experience. Over the next week, myemotional feelings began to break through. I wasfearful that the victim’s relatives or friends wouldretaliate against my family and me. I became angrywhen the media sensationally labeled the shootingracially controversial, and I was not allowed topublicly defend their embellished, untrue accounts ofthe incident.

Perspective

© Mark C. Ide

January 2002 / 19

As the investigations began, the emotionalpressure increased. I became anxious for a quick andfavorable conclusion. As the weeks dragged on, thevictim’s estate named me in a civil action seekingpunitive damages. My doubts began to intensify. Ireplayed the shooting over and over in my mind,questioning if I could have done anything differentlyand wondering why this had happened to me.

I felt alone, coming from a department in whichno one had been involved in ashooting situation resulting insomeone’s death. No one reallyknew what I was feeling, so Ibegan to isolate my emotions.

Lack of Pre-Incident AcademyTraining

The extraordinary stress thatfollowed was known then as post-shooting trauma, an aspect ofpolicing I was never trained for.Twenty years ago, the policeacademy training covered mostaspects of law enforcement andprepared me for physical survival.However, it ignored the psycho-logical aspects of the profession. The term, criticalincident stress, had not been conceived. As defined byrecent standards, I had suffered three critical incidentsas a result of the confrontation: a life-threateningassault, an officer-involved shooting that resulted indeath, and a highly profiled media event.

Perceptions of the Mental Health Profession

The day of the incident, my department offeredme the services of a mental health professional. Thatproduced my initial denial: not me, I didn’t need help.After all, the use of deadly force comes with theterritory. I felt that seeing a “shrink” would stereotypeme as weak or crazy. Instead, I began to search for atrusted peer who I could relate to, someone who couldunderstand what I was going through. However, mysearch for a police officer/counselor who also hadused deadly force proved fruitless.

Approximately 2 weeks after the incident andnot knowing where else to turn, I went to a

psychotherapist who worked independently with theConnecticut State Police and had counseled otherofficers involved in shootings. With this decision, mystress became compounded by my immature, shallowfears regarding trust and, more important, my insecu-rities of what my family, friends, and peers wouldthink of me.

After a few visits, I developed trust and confi-dence in the counselor. I began to accept, in my own

mind, the needed counseling andstress management. Still, I feltashamed and would make excusesto everyone who knew I wasreceiving professional help. Iblamed my department forsending me and told everyone thatI was okay.

Impact of Counseling

Through counseling, I learnedthat the emotional feelings that Iexperienced were “common” forsomeone involved in the use ofdeadly force. In time, I was ableto accept my feelings as normaland openly talk to others about

the help I received. Surprisingly, my family, friends,and coworkers supported me.

Legal Outcomes

Two months after the incident, all of the investi-gations, including the most extensive one ever con-ducted by the State Attorney’s office, concluded thatthe shooting was justified and in self-defense. After a4-week trial, I was exonerated in my last-resortdecision to use deadly force by a jury that cleared meof any civil wrongdoing. Six years after the incident,the legal process finally ended.

THE RESOLUTION

Following my 6-year ordeal, I became an advocateof the mental health profession. I discovered that early1980s research found that 70 percent of officersinvolved in the use of deadly force who did notreceive professional help left the job within 5 years,compounded by personal and job-related stress.3 I

“Through counseling,I learned that the

emotional feelingsthat I experiencedwere ‘common’ for

someone involved inthe use of deadly

force.

”


wondered what, if anything, I could do to changethis.

Understanding the Police Personality

The police personality stands as a major stum-bling block in understanding why counseling hasbeen slow to evolve. Police officers surround them-selves in “image armor” and perceive the expressionof emotion as a weakness. They are themselvessuspicious people, and many find it hard to trust andconfide in others, so they isolate their feelings. Thisisolation leads to negative insulation that, in turn,leads directly to sick leave abuse, aggressive behav-ior, job loss, and high rates of divorce, suicide, andsubstance abuse.4

Because critical incidentstress manifests itself physically,cognitively, and emotionally,officers might experience some orall of these reactions immedi-ately, or perhaps not until after adelay. While in most instancesthe symptoms will subside in amatter of weeks, a few of thoseaffected by such stress will sufferpermanent emotional trauma thatadversely will affect their contin-ued value to the department andcause serious problems in theirpersonal lives.5

Although the increased involvement of the“stigmatized” mental health profession to the lawenforcement community has been slow to evolve, thefact remains that it is being accepted. Supported byarticles on police stress, critical incident stress, post-shooting trauma, and peer support programs pub-lished since the late 1980s, the mental healthcommunity’s commitment constitutes an importantproactive concept in modern-day policing.

Creating Support

To resolve my own experiences and to helpothers who have endured the psychological battleof using deadly force, I created a Critical IncidentStress Management/Post-Shooting Trauma programto address psychological survival at the recruitlevel. I received training and became a member

of a peer support team. I obtained a master’sdegree in counseling, and for the past 11 years, Ihave instructed at various police academies andrecertification classes throughout the state of Con-necticut, thus filling the void that I encounteredduring my critical incident.

In May 2000, I retired from the police departmentafter 20 years of service. Now, as the program man-ager at an employee assistance provider that targetsemergency service personnel, I am a member of theincident response team trained in crisis diffusing anddebriefing techniques. I facilitate an incident supportgroup for public safety personnel involved in criticalincidents and help officers throughout the country

deal with shooting aftermaths.On a monthly basis, the group

meets in an informal and confi-dential atmosphere that bringstogether members of the lawenforcement community whohave a common bond. It is notgroup therapy; however, informa-tion shared at the meeting iseducational and may have thera-peutic value. Members of thegroup direct the topics for discus-sion, and individual participationis optional. It represents anexceptional opportunity for

members to share their experiences with each otherunlike any other method that I have encountered.

One of the most important objectives of the groupinvolves helping other officers who become involvedin a critical incident. Their experiences are an invalu-able tool to support other officers when dealing withthe first few days and weeks following an event. Byhelping another officer, they help themselves. Thissupports the idea that “when public safety personnelhave the opportunity to process a critical incidentproperly, they can integrate the experience into theirlives in a way that is manageable and mitigate thelong-term potential for post-traumatic stress.”6

CONCLUSION

Over the past 20 years, I have seen the success ofemployee assistance programs and the mental healthprofession working together with all levels of the law

”

“The police personalitystands as a majorstumbling block inunderstanding why

counseling has beenslow to evolve.

January 2002 / 21

enforcement community. The commitment to providethese services not only benefits the involved officersbut also their families, their departments, and thecommunities they serve.

It is not a pleasant experience to suffer fromcritical incident stress. No one can predict howpowerful an incident will be or how it will affectthem. While it took strength, courage, and the will tolive to survive my physical battle, it took far moremoral fortitude and emotional resolve to survive theaftermath. If anything could be construed as brave orheroic as a result of my incident, it would be that Ibroke through the “image armor” and triumphed overtragedy by honestly confronting and resolving mypsychological battle, the ultimate test.

Endnotes

1 T. Pierson, “Critical Incident Stress: A Serious Law EnforcementProblem,” Police Chief, February 1989, 32-33.

2 For additional information, contact the author at the toll freenumber (888) 327-1060.

3 M. Ayoob, “The Killing Experience,” Police Product News, July1980.

4 R. Conroy, “Critical Incident Stress Debriefing,” FBI Law

Enforcement Bulletin, February 1990, 20-22.5 A. Kureczka, Public Safety EAP, UPDATE Newsletter (North

Haven, CT, 2000).6 T. Hodges, Public Safety EAP, UPDATE Newsletter (North Haven,

CT, 2001).

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uring the 2000-2001 term,the U.S. Supreme Courtruled on several signifi-D

cant constitutional issues relating tocriminal law and procedure, as wellas cases involving the civil liabilityof law enforcement officers actingin the performance of their officialduties and one case involving thecivil liability of state agencies forviolations of the Americans withDisabilities Act. The following is abrief synopsis of these cases. Asalways, local and state agenciesmust insure that their own statelaws and constitutions have not pro-vided even greater protections than

the U.S. constitutional standardsbefore relying on these opinions.

City of Indianapolis v. Edmond,121 S. Ct. 447 (2000)

In 1990, the Supreme Courtheld that brief, suspicionless sei-zures at highway checkpoints forthe purpose of combating drunkdriving was constitutional.1 In Cityof Indianapolis v. Edmond, theCourt ruled that when the primarypurpose of the checkpoint is to lo-cate illegal drugs, the seizure in-volved is unconstitutional.

A vehicle stop at a highwaycheckpoint is a seizure under the

Fourth Amendment.2 SupremeCourt checkpoint cases have recog-nized limited exceptions to the gen-eral Fourth Amendment rule that aseizure must be justified by somemeasure of individualized suspi-cion. In Edmond, the Court declinedto add narcotics checkpoints to thelimited exceptions.

The opinion distinguished thenarcotics checkpoint from thedrunk driving checkpoint by exam-ining the motive for the respectivestops. The Court recognized that thedrunk driving checkpoint wasclearly aimed at reducing the imme-diate hazard posed by drunk drivers

Legal Digest

Supreme Court Cases2000-2001 Term

© Amelia J. Brooks

January 2002 / 23

on the highways. On the otherhand, “[w]hen law enforcement au-thorities pursue primarily generalcrime control purposes at check-points..., stops can only be justifiedby some quantum of individualizedsuspicion.”3

It is important to note that Jus-tice O’Connor’s majority opinionacknowledged that certain emer-gency situations likely would per-mit checkpoints even if their pri-mary purpose was ordinary crimecontrol. O’Connor agreed with thelower appellate court’s propositionthat the “Fourth Amendment wouldalmost certainly permit an appropri-ately tailored roadblock set up tothwart an imminent terrorist attackor to catch a dangerous criminalwho is likely to flee by way of aparticular route.”4 Edmond, how-ever, signals the end of routine nar-cotics checkpoints.

Fourth Amendment. Police offi-cers, with probable cause to believethat McArthur had hidden mari-juana in his home, knocked onMcArthur’s door and requested hisconsent to search his home. He re-fused. The investigating police of-ficers then told McArthur that hewas to stay outside of his home andcould not reenter it unless accompa-nied by a police officer. McArthurwas prevented from entering thehome unaccompanied for about 2hours while the police obtained asearch warrant. When the warrantwas issued, the officers searchedMcArthur’s home and found drugparaphernalia and marijuana, re-sulting in McArthur’s arrest. Hewas charged with misdemeanorpossession of those items. Hemoved to suppress the evidence onthe ground that it was the “fruit” ofan unlawful police seizure, namely,the refusal to let him reenter hishome unaccompanied.

The central requirement of theFourth Amendment is one of rea-sonableness. Although seizures ofpersonal property are presumed un-reasonable unless accomplishedpursuant to a warrant, there are ex-ceptions to this rule involving spe-cial law enforcement needs and di-minished expectations of privacy.The Court recognized that the cir-cumstances in this case were exi-gent, and the seizure of McArthur’shome was tailored to that exigency:it was as limited in time as possibleand as unintrusive as possible.5 Inreaching its decision, the Court bal-anced both privacy and law en-forcement concerns to determine ifthe intrusion was reasonable.

The Court cited four reasons forits conclusion that the seizure of

McArthur’s home was reasonable.First, the police had probable causeto believe that McArthur’s homecontained evidence of a crime andunlawful drugs. Second, they hadgood reason to fear that, unless thehome was seized, he would destroythe drugs before they could returnwith a warrant. Third, they avoid-ed an unnecessary, warrantlessentry and warrantless arrest simplyby preventing McArthur from en-tering his home unaccompanied(McArthur was not detained).Fourth, they imposed the restraintfor a limited period, only as long asreasonably necessary for them, act-ing with diligence, to obtain thewarrant.

The third and fourth pointsmade by the Court are the most im-portant considerations to law en-forcement. The determination ofreasonableness is based on the spe-cific facts of each case, that is; thespecific circumstances and theoptions available to—and ulti-mately taken by—the police. Thefact that the police waited outsideMcArthur’s home, thus minimizingthe time spent inside without a war-rant, was a significant considerationto the Court. Anything police cando to be less intrusive to thesubject’s privacy will be well re-ceived by a court later evaluatingtheir reasonableness. Like any tem-porary Fourth Amendment seizure(such as an investigative detention),any unnecessary delay or lackof investigative diligence may ren-der a seizure unreasonable. Obvi-ously the warrant must be securedas quickly as possible, to includeconsideration of a telephonicwarrant or any other means tolimit the delay. New and emerging

Illinois v. McArthur,121 S. Ct. 946 (2001)

The Supreme Court held that apolice officer’s refusal to allowresidents to enter their homes with-out a police officer until a searchwarrant was obtained was a reason-able seizure that did not violate the


of the state itself, or another state orforeign power. However, Congressmay take away the states’ EleventhAmendment immunity in certaincircumstances. The question beforethe Court was whether the ADAproperly abrogated that immunitymaking the states subject to federallawsuits under the act.

Ms. Garrett was a nurse em-ployed by the University of Ala-bama in Birmingham Hospital, astate hospital. She was diagnosedwith breast cancer and her treatmentforced her to take extended leavefrom her job. When she returned,her employer told her she wouldhave to give up her former positionas Director of Nursing. She appliedfor and received a lower paying jobas a nurse manager. She sued,claiming the hospital had discrimi-nated against her based upon herdisability in violation of the ADA.The District Court dismissed thecase, finding the state was immunefrom suit under the EleventhAmendment. The U.S. Court of Ap-peals for the Eleventh Circuit re-versed, ruling that Congress hadproperly abrogated the states’ Elev-enth Amendment immunity when itpassed the ADA.

The Supreme Court ruled thatCongress did not properly abrogatethe states’ Eleventh Amendmentimmunity when it passed the ADA.Consequently, nonconsentingstates, and units of those states suchas state police and state hospitals,are not subject to lawsuits in federalcourt by private individuals formoney damages for violations ofthe ADA.

This opinion does not mean thatstates and state entities are freeto ignore the ADA. The federal

government can enforce the ADAagainst the states in federal court. Inaddition, states are free to waivetheir immunity and permit suitsagainst them for disability discrimi-nation. Some states have done so.Many states have their own lawsprohibiting discrimination. In thosestates, people alleging disabilitydiscrimination under state law maybe able to assert their ADA claimsat the same time in state court.

technologies are decreasing thetime to acquire a warrant. Failing totake advantage of a telephonic orother enhanced method of securinga warrant may render the delay un-necessarily long and, therefore, un-reasonable.

Board of Trustees of theUniversity of Alabama v. Garrett,121 S. Ct. 955 (2001)

The question before the Su-preme Court in this case waswhether the Eleventh Amendmentto the Constitution bars federal law-suits for money damages by indi-viduals against states under theAmericans with Disabilities Act(ADA). The Eleventh Amendmentto the Constitution is brief: “TheJudicial power of the United Statesshall not be construed to extend toany suit in law or equity, com-menced or prosecuted against oneof the United States by Citizens ofanother State, or by Citizens or Sub-jects of any Foreign State.” TheSupreme Court has ruled thatthe amendment means thatnonconsenting states may not besued by private individuals in fed-eral court, whether they are citizens

Ferguson v. City of Charleston,121 S. Ct. 1281 (2001)

In this case, the Supreme Courtaddresses the lengths that the policecan go in using medical personnelto provide information for criminalprosecution purposes. In responseto an increase in the number of pre-natal patients who were found to beabusing narcotics, a South Carolinapublic hospital instituted a policy oftesting urine obtained from certainexpectant mothers for the presenceof narcotics. The policy was in-tended to protect unborn childrenby threatening their mothers withcriminal prosecution for the use ofnarcotics (if the use was detectedearly in the pregnancy) or for child

January 2002 / 25

endangerment (if the use was de-tected late in the pregnancy). Onlypatients who fell within nine crite-ria were tested. The testing policywas instituted after earlier pro-grams, which only referred patientswho tested positive for narcotics toabuse counseling, failed to stem theabuse of narcotics by expectantmothers. The policy notified pa-tients that all positive test resultswould be forwarded to the policefor possible criminal prosecutionand it set forth procedures to ensurethat proper chain of custody wasmaintained during the process. Sev-eral women who were arrested aftertesting positive sued the hospitaland police officials for FourthAmendment violations.

Justice Stevens ruled that thepolicy violated the Fourth Amend-ment reasonableness requirementbecause it constituted an unjustifiedwarrantless search. The Court de-cided that the urine test, as adminis-tered under the policy, was a searchas defined by the Fourth Amend-ment. Therefore, the action wassubject to the Fourth Amendmentreasonableness requirement. TheFourth Circuit Court of Appeals hadpreviously ruled that the policy wasreasonable under the FourthAmendment because “specialneeds” justified the testing to servenonlaw enforcement ends. The Su-preme Court rejected this reason-ing. The Court ruled that in previ-ous cases where it had allowed suchwarrantless, suspicionless searchesunder the “special needs” justifica-tion, a balancing of the intrusioninto the individual’s privacy inter-est and the “special needs” that jus-tified the policy resulted in findingsin favor of the government.6 In

performing the same balancing testin this case, the Court ruled that theintrusion here was far more sub-stantial and was not justified by theperceived “special needs.” Here,adverse test results were not used todisqualify someone for a benefit,but were instead used for criminalprosecution. The court ruled that,despite the hospital’s assertions thatit only desired to curtail prenatalnarcotics abuse, the primarypurpose of this testing was law en-forcement. Absent probable causeand a warrant, or consent or exigentcircumstances, such governmentalconduct is prohibited by the FourthAmendment. The Court remandedthe case to determine if the patients’conduct constituted consent to thetesting.

It is important to note that theCourt did not prohibit the use of allmedical test results in criminalprosecutions. When such testing isdone by private hospitals, not actingat governmental direction, or forprimarily medical purposes, or pur-suant to an exigent need (such asdrawing blood from someone whenthere is a reasonable belief that their

use of alcohol contributed to a mo-tor vehicle collision), or pursuant tothe patient’s voluntary consent, thetest results may be used by law en-forcement for criminal prosecutionin compliance with the FourthAmendment.

Shaw v. Murphy,121 S. Ct. 1475 (2001)

In this First Amendment case,the Supreme Court ruled that prisoninmates do not have heightened pro-tection in their speech when thatspeech contains legal advice. The

© Digital Stock


case arose when Murphy, an “in-mate law clerk” in the MontanaState Prison system, attempted toassist a fellow inmate who had beencharged with assault. Murphy sentthe charged inmate a letter offeringhis legal advice on the assaultcharge. Pursuant to prison policy,the letter was intercepted and re-viewed. Murphy filed a suit alleg-ing, among other things, that hisFirst Amendment right to freespeech had been violated.

While recognizing that “incar-ceration does not divest prisoners ofall constitutional protections,”7 theSupreme Court has recognized that“the constitutional rights that pris-oners possess are more limited inscope than the constitutional rightsheld by individuals in society atlarge.”8 In 1987, the SupremeCourt pronounced that “a prisonregulation impinging on inmates’constitutional rights is valid ‘if it isreasonably related to legitimate pe-nological interests.’”9 In Shaw, theCourt pronounced that this standardis not heightened when the prisonregulation in question restricts FirstAmendment speech rights, even if

the restricted speech contains po-tential legal advice. Rather, theanalysis is identical to that appliedto restrictions affecting any otherconstitutional rights.

This constitutional analysis re-quires consideration of four rel-evant factors: 1) the existence of a“‘valid, rational connection’ be-tween the prison regulation and thelegitimate [and neutral] govern-mental interest put forward tojustify it;” 2) the existence of “alter-native means of exercising theright” available to inmates; 3) “theimpact accommodation of the as-serted constitutional right will haveon guards and other inmates, and onthe allocation of prison resourcesgenerally;” 4) “the absence of readyalternatives” available to the prisonfor achieving the governmentalobjectives.10 The Supreme Courtdid not conduct the analysis to de-termine whether the restriction af-fecting Murphy was valid; rather,the case was remanded to the lowercourts for that determination.

By remanding the casewith instruction to apply the “ratio-nal basis” standard to the prison

restriction at issue, the SupremeCourt refused to “cloak the provi-sion of legal assistance with anyFirst Amendment protection aboveand beyond the protection normallyaccorded prisoners’ speech.”11 Inaddition to remanding the case forthe relevant analysis, the Court re-minded the examining lower courtthat “because the ‘problems of pris-ons in America are complex andintractable,’ and because courts areparticularly ‘ill equipped’ to dealwith [prison] problems, [courts]generally have deferred to the judg-ments of prison officials in uphold-ing these regulations against consti-tutional challenge.”12 Clearly,prison administrators have widelatitude in restricting inmate activi-ties. Shaw makes clear that theirdiscretion is not more limited whenthe inmate activity is the dispensingof legal advice.

Atwater v. City of Lago Vista,121 S. Ct. 1536 (2001)

This case establishes that custo-dial arrests are reasonable seizuresunder the Fourth Amendment re-gardless of the possible punishmentfor the crime, which resulted in

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January 2002 / 27

thermal imager converts infrared ra-diation, which is invisible to the na-ked eye, into images that depict therelative temperatures of the objectscanned—dark areas on the imageare cool; light areas are hot. Bycomparing the thermal image of thesuspect’s home to that of otherhomes in the neighborhood, officerscan determine if more heat is escap-ing from the suspect’s home, indi-cating a possible indoor marijuanagrowing operation. The result of thethermal scan, in combination withother information developed, isthen used to secure a search warrantfor the suspect’s premises.

The legal issue raised by the useof the thermal imager to scan ahome is whether or not the scanningis a Fourth Amendment search, re-quiring a search warrant or an ex-ception to the search warrant re-quirement. Prior to the Kyllo case,the majority of U.S. Circuit Courtsof Appeals considering the issuedecided targeting a home with athermal imager was not a FourthAmendment search. They reasonedthat by taking no steps to concealthe heat emissions, the home ownerexhibited no expectation of privacyin the “waste heat” and, even if thehome owner did have an expecta-tion of privacy, it was not objec-tively reasonable. Danny Kyllobrought this issue to the SupremeCourt.

A federal officer suspected thatKyllo was growing marijuana in hishome. To bolster his probable causeto search Kyllo’s home, the officerrequested a thermal scan of thehome. At three o’clock in the morn-ing, another officer scanned Kyllo’shome from the street. The scanshowed that certain areas of the

the arrest. Lago Vista is a city incentral Texas. Texas law makes thefailure to wear a front seat belt amisdemeanor punishable by a maxi-mum fine of $50. Imprisonment isnot a possible penalty. However, asin many other states, Texas law per-mits police officers to make war-rantless arrests for misdemeanors.In March 1997, Gail Atwater wasdriving her vehicle with her 3-year-old and 5-year-old children in thefront seat. Not one of them waswearing a seatbelt. After beingstopped by the police, Atwater washandcuffed and transported to thepolice station for booking. After hermug shot was taken, Atwater wasplaced alone in a cell for 1 hour. Shethen appeared before a magistrateand posted a bond for her release.Although she pleaded no contest tothe seatbelt violation and paid a $50fine, Atwater and her husband fileda Section 1983 civil lawsuit againstthe arresting officer, the Lago Vistapolice chief, and the City of LagoVista. The constitutional basis forthe civil suit was that Atwater hadbeen subjected to an unreasonableFourth Amendment seizure.

The Supreme Court affirmedthe appellate court’s ruling that theFourth Amendment does not pro-hibit an arrest for a minor criminaloffense, even one punishable onlyby a fine. The Court stated bluntlythat “Atwater’s arrest satisfied con-stitutional requirements,”13 becauseit was based on probable cause tobelieve that Atwater had committeda crime in the arresting officer’spresence. Although the Court rec-ognized that the arrest of Atwaterwas an exercise of poor judgment, itrefused to accept her argument ad-vocating a rule forbidding custodial

arrest if conviction for the offensecarried no jail time and the govern-ment can show no compelling needfor immediate detention. Instead,the Supreme Court confirmed whatit has held previously: “the standardof probable cause ‘applie[s] to allarrests, without the need to balancethe interests and circumstances in-volved in particular situations.’” 14

Therefore, officers can make arrestswhenever they possess probablecause that a person has committedan offense for which an arrest isauthorized by law.

Kyllo v. United States,121 S. Ct. 2038 (2001)

This case raised the issue ofwhether or not thermal scanning aprivate residence from outside theresidence is a search under theFourth Amendment. Indoor mari-juana growing operations typicallyrequire high-intensity lights whichproduce great amounts of heat. Theheat generated by the growing op-eration escapes from the home andcan be detected from outside thehome using a thermal imager. The


home were relatively hot comparedto other portions of the home, andthat his home was substantiallywarmer than other homes in theneighborhood. Based in part on theresults of the thermal scan, a federalmagistrate issued a warrant tosearch Kyllo’s home. Officersfound marijuana plants. The districtcourt found that the use of the ther-mal imager was not a FourthAmendment search, and refused tosuppress the marijuana. Kyllo wasconvicted, and he appealed.

The U.S. Court of Appeals forthe Ninth Circuit eventually foundthat using a thermal imager to scan ahome from the street is not a FourthAmendment search. Kyllo then pe-titioned the Supreme Court, whichagreed to hear his case.

In a five to four decision, theSupreme Court ruled that targetinga home with a thermal imager fromoutside the home is a search underthe Fourth Amendment. The Courtemphasized that inside a privatehome an expectation of privacyexists, and that expectation is rea-sonable. Consequently, police useof sense-enhancing technology toobtain any information regarding aprivate home’s interior that couldnot otherwise have been obtainedwithout physical intrusion into thehome, is a search under the FourthAmendment. Absent a searchwarrant, or an exception to the war-rant requirement, such a search ispresumptively unreasonable.

As a practical matter, the Kyllocase will severely restrict the use ofthermal imagers to scan privatehomes or other premises wherethere is an expectation of privacy.Such scans now require a search

Saucier had violated his FourthAmendment rights by using exces-sive force in arresting him while heprotested during a speech by formervice president Gore at a San Fran-cisco, California, army base.

In any civil rights lawsuit alleg-ing excessive force, there are twocritical issues: whether the actionsof the arresting officer violated theConstitution and, if so, whether theofficer is entitled to qualified im-munity. The first question is evalu-ated under the Fourth Amendmentreasonableness standard that fo-cuses on whether the officer’s con-duct was objectively reasonable.15

The second question focuses onwhether the officer’s actions vio-lated any clearly established law ofwhich the police officer shouldhave been aware at the time.16

The Ninth Circuit Court of Ap-peals held that the two questionswere essentially identical, becauseboth concern the objective reason-ableness of the officer’s conduct inlight of the circumstances the of-ficer faced at the scene. The Su-preme Court disagreed, holding thata qualified immunity ruling re-quires an analysis not susceptible offusion with the question whetherunreasonable force was usedin making the arrest. It held thateach issue must be considered inproper sequence, and that a rulingon qualified immunity should bemade early in the proceedings sothat the cost and expenses of trialmay be avoided. Qualified immu-nity is an entitlement not to standtrial, not a defense from liability.The initial inquiry is whether a con-stitutional right would have beenviolated on the facts alleged by the

warrant, absent exceptions such asconsent or emergency.

Kyllo also has broader implica-tions. The Supreme Court clearlyexpressed concerns regarding anytechnology used by police to gatherinformation about the interior ofany premises from the outside. Inlight of the Kyllo decision, law en-forcement must reexamine its use ofany technology to probe anywhere areasonable expectation might existfor compliance with the FourthAmendment.

Saucier v. Katz,121 S. Ct. 2151 (2001)

The Supreme Court held thatthe inquiry as to whether an arrest-ing police officer is entitled toqualified immunity for the use ofexcessive force is distinct from theinquiry as to whether the use offorce was objectively reasonableunder Fourth Amendment exces-sive force analysis. The two issuesmust be addressed separately andnot combined into one question.

Katz, president of an animalrights group, filed a suit againstSaucier, a military policeman. Katzalleged, among other things, that

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plaintiff; if no right was violated,there is no need for further inquiryinto immunity. However, if a viola-tion could be made viewing thefacts in a light most favorable to theplaintiff/arrestee, the next, sequen-tial step is to inquire whether theright was clearly established at thetime of the seizure. Like the FourthAmendment analysis, this inquiry ismade in the factual context of thespecific case, not as a broad generalproposition. The relevant inquiry iswhether it would be clear to a rea-sonable officer that the specificconduct was unlawful in the situa-tion he confronted.

In overruling the Ninth Circuit,the Court reiterated its previous po-sition in Graham v. Connor17 that anofficer’s conduct in searching orseizing may be reasonable but stillincorrect. The Court gave the ex-ample of an officer who reasonably,but mistakenly, believes that a sus-pect is likely to fight back, resultingin the officer justifiably using moreforce than in fact was needed. Thequalified immunity inquiry’s con-cern, on the other hand, is to ac-knowledge that reasonable mistakescan be made as to the legal con-straints on particular police con-duct. An officer might correctlyperceive all of the relevant facts, buthave a mistaken understanding as towhether a particular amount offorce is legal in those circum-stances. The Court characterizedthe qualified immunity inquiry ashaving a “further dimension;”18 itmade a distinction between a use offorce being objectively reasonableand a police officer understandingwhether a particular use of force islegal.

It is difficult to assess whatpractical effect the Katz decisionwill have on American law enforce-ment. Cases involving an objec-tively unreasonable use of force bya police officer where the officer isentitled to qualified immunity arerelatively unusual.19 Also, eventhough individual officers/defen-dants may receive qualified immu-nity, such immunity will not extendto their departments who may re-main liable.20 That said, the tone ofthe opinion in Katz makes clear thatthe Court pays great deference tothe risks assumed by law enforce-ment and strongly reinforces its pre-vious decisions in police use offorce cases.

daughter. When the owner of thehome returned from work he foundthe house burglarized and his fam-ily missing. After receiving a reportof the burglary and disappearances,the police conducted an investiga-tion and eventually questionedCobb regarding the incident. Cobbadmitted to the burglary but deniedany knowledge of the whereaboutsof the woman and child.

Cobb was indicted on the bur-glary charge and invoked his SixthAmendment right to counsel. Afterbeing freed on bond, Cobb admittedto his father that he had killed thewoman and child. Cobb’s father re-ported his son’s confession to thepolice and a warrant was obtainedfor the arrest of Cobb on charges ofmurder. Following his arrest, Cobbwaived his Miranda rights, reiter-ated his confession, and led policeto the location where he had buriedthe woman and child.

After a trial, during whichCobb’s confession was admittedand evidence obtained from thegrave site was introduced, Cobbwas convicted of capital murder andsentenced to death. Cobb subse-quently appealed his conviction onthe ground that the interrogationthat followed his arrest on the mur-der charges violated his SixthAmendment right to counsel. Thedefense argued that the SixthAmendment right to counsel, whichhad attached and had been invokedwith respect to the burglarycharges, precluded any attempts bythe police to deliberately elicitinformation from Cobb about thefactually related murders. TheCourt of Criminal Appeals agreedthat the murders were “factually

Texas v. Cobb,121 S. Ct. 1335 (2001)

In Cobb, the Supreme Courtclearly limited the scope of theprotections under the Sixth Amend-ment right to counsel to charged of-fenses. The case arose whenRaymond Cobb was accused of bur-glarizing a home. At the time of theburglary, the home was occupied bya woman and her 16-month-old


interwoven with the burglary”21

and, therefore, Cobb’s SixthAmendment right to counsel had at-tached on the capital murder chargeeven though he had not beencharged with the offense at the timeof the interrogation. Cobb’s convic-tion was reversed and the case wasremanded for a new trial.

The Supreme Court made clearits view regarding the scope of theSixth Amendment protections whenit stated “[t]he Texas Court ofCriminal Appeals held that a crimi-nal defendant’s Sixth Amendmentright to counsel attaches not only tothe offense with which he ischarged, but to other offenses‘closely related factually’ to thecharged offense. We hold that our[earlier] decision in McNeil v. Wis-consin22 meant what it said, and thatthe Sixth Amendment right is ‘of-fense specific.’”23 Recognizing thatmany criminal statutes are similar,the definition of an ‘offense’ cannotnecessarily be “limited to the fourcorners of a charging instrument.”24

Rather, the Court applied a defini-tion it had conceived in anothercontext. In Blockburger v. UnitedStates25 the court explained “wherethe same act or transaction consti-tutes a violation of two distinctstatutory provisions, the test to beapplied to determine whether thereare two offenses or only one, iswhether each provision requiresproof of a fact, which the other doesnot.”26

Applying the Blockburger testto the case at hand, the SupremeCourt noted that, at the time ofthe confession in question, Cobbhad been indicted for the burglarybut had not been charged in the

murders. After reviewing the TexasPenal Code, the Court concludedthat each offense required proof ofat least one fact that the other didnot and, therefore, were not thesame offenses under Blockburger.Thus, the interrogation did not vio-late Cobb’s Sixth Amendment rightto counsel and the confession wasadmissible.

When law enforcement officersfind themselves investigating an in-dividual who already has beencharged with an offense, concernsregarding the Sixth Amendment canbe assuaged by reviewing the crimi-nal statutes and applying theBlockburger test. If each crime re-quires proof of at least one addi-tional fact, the crimes are not thesame for purposes of the SixthAmendment.

warrants to search Hicks’ home, lo-cated on tribal land, for evidence ofpoaching that occurred on nontriballand. Neither search produced evi-dence of the alleged crime. How-ever, Hicks claimed that some of hisproperty had been damaged duringthe searches and that the secondsearch exceeded the bounds of thewarrant. Hicks filed a Section 1983civil lawsuit in tribal court allegingconstitutional violations by thegame wardens, as well as claims oftrespass and other civil wrongs. Thetribal court decided it had jurisdic-tion over Hicks’ claims. The gamewardens and the State of Nevadaappealed that decision. The U.S.Circuit Court of Appeals for theNinth Circuit held that the tribalcourt had jurisdiction because thesearches had occurred on landowned by the tribe within thereservation’s boundaries.

The case was appealed to theU.S. Supreme Court. The Courtheld that 1) the tribal court did nothave jurisdiction to decide tortclaims arising from the execution ofsearch warrants by state officials ontribal land for evidence of crimescommitted outside the boundariesof the reservation; 2) the tribal courtdid not have authority to adjudicateSection 1983 claims; and 3) exhaus-tion of claims in tribal court was notrequired before seeking federalcourt relief. The Court reversed andremanded the case.

The Court found that the tribalcourt did not automatically have ju-risdiction over the acts Hicks com-plained of simply because they oc-curred on tribal land. Landownership is merely one factor toconsider. The tribe does have the

Nevada v. Hicks,121 S. Ct. 2304 (2001)

This case involves tribal courtjurisdiction in a civil liability matterinvolving state officials actingwithin the scope of their employ-ment. On two occasions, Nevadagame wardens obtained state

January 2002 / 31

right to make laws and be governedby them, and any tribal assertion ofregulatory authority over nontribalmembers must be tied to those triballaws. The Court noted, however,that states have authority to issueprocess authorizing its officials toenter tribal lands to enforce statelaw. The Court recognized thatstates have criminal jurisdictionover tribal members dwelling onreservations for crimes committedoff the reservation. Consideringthese facts, the Court concludedthat tribal authority to regulate stateofficers executing process related tothe violation of state laws commit-ted outside the boundaries ofthe reservation is not essential totribal self-government or internalrelations.

The Court also found that tribalcourts are not courts of general ju-risdiction comparable to statecourts. Therefore, they do not havejurisdiction over lawsuits filed un-der Section 1983. To consider tribalcourts as courts of general jurisdic-tion would create an anomaly in thelaw. Title 28 Section, 1441, U.S.Code permits Section 1983 actionsbrought in state courts to be re-moved to federal courts. However,the law makes no provision for re-moval of such actions from tribalcourts into federal courts. Ratherthan judicially creating a right ofremoval, the Court decided thattribal courts cannot entertain Sec-tion 1983 suits. Because tribalcourts lack jurisdiction over Sec-tion 1983 lawsuits and lawsuits in-volving state officials performingtheir official duties on tribal lands,the Court concluded that there is noneed for state officials to exhaust

tribal remedies prior to seeking re-lief in federal court.

Endnotes

1 Michigan Dept. of State Police v. Sitz, 496U.S. 444 (1990).

2 Id. at 450.3 Edmond, 121 S. Ct. at 457.4 Id. at 455.5 In this case, the police had been in the

home immediately prior to having probablecause of the existence of the contraband, sothey knew no one was in the home. Had theybeen unsure of whether anyone else waspresent, they would have been justified in doinga “protective sweep” of the home to ensure noone was present that might destroy theevidence.

6 Skinner v. Railway Labor Executives’

Assn., 109 S. Ct. 1402 (1989) (mandatorynarcotics testing of railway employees involvedin accidents); Treasury Employees v. Von

Raab, 109 S. Ct. 1384 (1989) (U.S. Customsemployees seeking promotion to sensitivepositions); and Vernonia School Dist. 47J v.

Acton, 115 S. Ct. 2386 (1995) (high schoolstudents participating in team sports).

7 121 S. Ct. at 1479.8 Id.9 121 S. Ct. at 1478 (quoting Turner v.

Safley, 482 U.S. 78, 89 (1987)).10 Shaw, 121 S. Ct. at 1479 (quoting Turner

v. Safley, 482 U.S. at 90.)

11 Shaw, 121 S. Ct. at 1480.12 Shaw, 121 S. Ct. at 1479 (quoting Turner

v. Safley, 482 U.S. at 404-405).13 Atwater, 121 S. Ct. at 1557.14 Atwater, 121 S. Ct. at 1557 (quoting

Dunaway v. New York, 442 U.S. at 208.15 The Court defined this evaluation in

Graham v. Connor, 490 U.S. 386, 396 (1989):Where...the excessive force claim arises in

the context of an arrest or investigatory stop ofa free citizen, it is most properly characterizedas one invoking the protections of the FourthAmendment, which guarantees citizens theright “to be secure in their persons...againstunreasonable...seizures” of the person....Determining whether the force used to effect aparticular seizure is “reasonable” under theFourth Amendment requires a careful balancingof “ ‘the nature and quality of the intrusion onthe individual’s Fourth Amendment interests’ ”against the countervailing governmentalinterests at stake. Our Fourth Amendmentjurisprudence has long recognized that the rightto make an arrest or investigatory stopnecessarily carries with it the right to use somedegree of physical coercion or threat thereof toeffect it..... Because “[t]he test of reasonable-ness under the Fourth Amendment is notcapable of precise definition or mechanicalapplication,” however, its proper applicationrequires careful attention to the facts andcircumstances of each particular case, includingthe severity of the crime at issue, whether thesuspect poses an immediate threat to the safetyof the officers or others, and whether he is


actively resisting arrest or attempting to evadearrest by flight.

The “reasonableness” of a particular use offorce must be judged from the perspective of areasonable officer on the scene, rather than withthe 20/20 vision of hindsight. The FourthAmendment is not violated by an arrest basedon probable cause, even though the wrongperson is arrested, nor by the mistakenexecution of a valid search warrant on thewrong premises. With respect to a claim ofexcessive force, the same standard of reason-ableness at the moment applies: “Not everypush or shove, even if it may later seemunnecessary in the peace of a judge’schambers,” violates the Fourth Amendment.The calculus of reasonableness must embodyallowance for the fact that police officers areoften forced to make split-second judgments—in circumstances that are tense, uncertain, andrapidly evolving—about the amount of forcethat is necessary in a particular situation.

16 The standard for qualified immunityis “[G]overnment officials performing

discretionary functions, generally are shieldedfrom liability for civil damages insofar as theirconduct does not violate clearly establishedstatutory or constitutional rights of which areasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Seealso Malley v. Briggs, 475 U.S. 335, 341(1986); where the Court said that qualifiedimmunity protects “all but the plainlyincompetent or those who knowingly violate thelaw.” See also Anderson v. Creighton, 483 U.S.635, 640 (1987), in which the Court definedwhat constitutes a clearly established right:

The contours of the right must be suffi-ciently clear that a reasonable official wouldunderstand that what he is doing violates thatright. This is not to say that an official action isprotected by qualified immunity unless the veryaction in question has previously been heldunlawful,... but it is to say that in the light ofpreexisting law the unlawfulness must beapparent.

17 Supra note 7.18 Saucier, 121 S. Ct. at 2159.

Instructors in the Legal Instruction Unitat the FBI Academy prepared thisarticle.

19 See Cruz v. Laramie, 239 F.3d 1183(2001), Tenth Circuit. The Court of Appealsheld that the use of “hog-tie” restraint on anarrestee whose diminished capacity is apparentconstitutes excessive force in violation of theFourth Amendment, but because the right wasnot clearly established in June 1996, when sucha restraint was used on arrestee while heappeared to be on drugs, the officers wereprotected by qualified immunity with respect tofederal civil rights claims. See also Tennessee v.

Garner, 471 U.S. 1 (1985) where the Courtheld that the use of deadly force against anunarmed nondangerous fleeing subject wasobjectively unreasonable but, as in Cruz, heldthe individual officer/defendants to be immune.

20 See Monell v. Department of Social

Services of the City of New York, 436 U.S. 658

T he FBI Law Enforcement Bulletin staff invitesyou to communicate with us via e-mail. Our

Internet address is [email protected] would like to know your thoughts on

contemporary law enforcement issues. Wewelcome your comments, questions, and

suggestions about the magazine. Pleaseinclude your name, title, and agency

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for viewing or downloading on anumber of computer services,as well as the FBI’s home page.The home page address ishttp://www.fbi.gov.

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

The Bulletin Notes

Officer Mertz

Officer Hollinhead

Wildlife Officer Mark Hollinhead of the Florida Game and Fresh WaterFish 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 waterfrequented by boaters using small boats to fish. Concerned for the safety of fourmen in a small rental boat, Officer Hollinhead returned to the area to find theirboat, quickly taking on water. Three of the men swam to Officer Hollinhead’sboat while the fourth man was in a state of panic and would not leave thesinking craft. Officer Hollinhead jumped into the water and brought the man tohis patrol boat. After safely delivering the four men to shore, Officer Hollinheadreturned to the area and found two additional boats submerged with only thebows above water. He overcame strong winds and dangerous conditions tomaneuver his patrol boat close enough to the floating victims to retrieve all of

them. Officer Hollinhead assisted a totalof four children and eight adults tosafety that day. His quick response anddedication to the law enforcementprofession led to the successful rescueof these individuals.

Nominations for the Bulletin Notes should be based on eitherthe rescue of one or more citizens or arrest(s) made at unusualrisk to an officer’s safety. Submissions should include a shortwrite-up (maximum of 250 words), a separate photograph ofeach nominee, and a letter from the department’s ranking officerendorsing the nomination. Submissions should be sent to theEditor, FBI Law Enforcement Bulletin, FBI Academy, MadisonBuilding, Room 209, Quantico, VA 22135.

As Officers Corey Mertz and Dennis Botefur of theCity of Junction, Oregon, Police Department weresearching a wooded area for stolen property, they noticedan individual sitting in a pickup truck with the enginerunning, the windows up, and a flexible hose runningfrom 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 thefresh air. The man quickly became aggressive and angryat the officers and placed a knife at his own throat.Although the man wanted the officers to shoot him, theofficers 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.

Officer Botefur

PeriodicalsPostage and Fees PaidFederal Bureau of InvestigationISSN 0014-5688

U.S. Department of JusticeFederal Bureau of InvestigationFBI Law Enforcement Bulletin935 Pennsylvania Avenue, N.W.

Washington, DC 20535-0001

Official Business

Penalty for Private Use $300

Patch Call

The Searcy, Arkansas, Police Department’s patchdepicts landmarks in the downtown area of Searcy,including the county courthouse, which was built in1870 and remains the oldest working courthouse inthe state of Arkansas.

The patch of the Oklahoma State Bureau ofInvestigation draws from that state’s rich NativeAmerican heritage and each symbol and color has aspecial significance. The center of the patch, derivedfrom the state’s flag, depicts an Osage Indianwarrior’s shield crossed by a peace pipe and an olivebranch. The eagle symbolizes vigilance and themicroscope and scales represent the individual phasesof the agency’s history.

FBI Law Enforcement Bulletin - Jan02leb

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