A Problem in Madison

images (3)The department that I headed for over 20 years is coming under attack regarding the shooting of an unarmed intoxicated man last November. (For a news account CLICK HERE.)

It will become a moral dilemma for a police department that has enjoyed a high level of community trust, respect and support for over 40 years.

The investigation by the district attorney found that the officer involved was not criminally liable for the man’s death. Subsequently, the internal investigation by the police department found that the officer had not violated the department’s policy on the use of deadly force.

The chief has tried to be forthcoming regarding press conferences and the release of the department’s internal investigation.

Still, questions remain.

In the 1989 U.S. Supreme Court Decision, Graham v. Connor, the standard for police use of force became “objective reasonableness” — translated: what counts is what was reasonably in the mind of the officer regarding a deadly threat, not what someone else thinks.

For years, however, the department operated under a policy that highly cautioned the use of deadly force:

“Recognizing our legal and moral obligation to use force wisely and judiciously, it is the policy of this department that deadly force will never be resorted to unless an officer reasonably believes that a lesser degree of force would be insufficient to defend the life of another, one’s self, or in limited situations, to apprehend a dangerous felon…”  [in part, MPD Policy 6-100] (my emphases).

As in these and other situations in which state permitted police to do something, police leaders often chose a more restrictive use of police authority. In the 1970s, for example, we issued a policy regarding the use of deadly force that was more restrictive than what was permitted by Wisconsin law.

At that time, Wisconsin, like many other states, permitted police to use  deadly force against any “fleeing felon.” Our policy (and thus our training) instructed officers and required them to use deadly force only against those who, if not stopped, would present a clear and imminent life-threatening danger to others. Thus, auto thieves (most of whom were juveniles) and other thieves could no longer be apprehended by shooting them. Though state law permitted police to do so, we believed that it would be immoral for us do so.

When I discussed what I was proposing with the community, they overwhelming supported my decision. Some of my officers did not. Nevertheless, my commitment to the community was that deadly force would be used only as a last resort by Madison police officers because we, as a department, believed in the sanctity of human life and the importance of using a lesser amount of force whenever possible. This harkens back to over 150 years ago during the time Sir Robert Peel in England. When he (and others) organized the new Metropolitan Police. Nine principles were promulgated as “Peel’s Principles,” two of which have to do with the use of force:

  • Police ability to secure public co-operation diminishes the need to use physical force.
  • Police use physical force to enforce the law or restore order only when persuasion, advice and warning is insufficient.

This holds true today. Whenever force is used by police to gain compliance, they experience a lessening of public support. Therefore, physical force should always be a last resort.

A number of years later, the U.S. Supreme Court validated what we had done in Madison in their decision Tennessee v. Garner (1985) in which they held that police may use deadly force only if a police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

A number of the questions that have been raised in the community are listed below. More may be coming.

  1. Should the police be permitted to investigate a potential crime involving one of their own officers?
  2. Given the police culture, shouldn’t the district attorney form a team of officers from a number of area police agencies (but not involving the involved department) to investigate these kinds of deaths?
  3. The deadly force policy of the Madison Police Department addresses the department’s “legal and moral obligation” to the public. While the District Attorney may have addressed the department’s legal obligation when he determined the officer did not violate state law in taking the man’s life, does not there still remain the moral question: did the department satisfy its moral obligation to the community to “use force wisely and judiciously” and only after a “lesser degree” of force would be “insufficient?”
  4. If the police officer was legally authorized to use deadly force in this situation, should he have? Could other actions or tactics have been taken that would not have resulted in the man’s death?
  5. Are police officers adequately trained to handle situations in which an unarmed person fails to respond to verbal commands and attempts to physically grapple with an officer?
  6. Is it reasonable to believe that well-trained, seasoned police officers would react in the same was as did the officer in question?
  7. How are Madison police officers trained with regard to retaining their weapons and applying “less-than-deadly” force? Does the department use high-stress training scenarios similar to this one (someone trying to grab an officer’s gun)?
  8. Was the situation as dangerous as the officer has said given number of back-up officers in the vicinity? Is this not a fairly usual event for a police officer in a city well-known for its consumption of alcohol?
  9. Was the officer in question using “the castle doctrine” argument; that a person has a right to “stand his ground” and not retreat? Is that reasonable for a police officer?
  10. Will this be the new “standard of conduct” regarding how the Madison department will deal with a situation like this in the future?

The decision to take a life is the most important decision anyone will ever make. It’s effects are long-lasting if not eternal.

I was recently impressed by the wording of the deadly force policy from the police department in Portland, Ore. which has been under strong community pressure to control the number of police shootings. They are currently under a court order to do so. It reads in part:

“The Portland Police Bureau recognizes and respects the integrity and value of human life, and that the decision to use deadly physical force is the most important decision that a member will make in the course of his/her career. The use of deadly physical force will emotionally, physically and psychologically impact the member involved, the subject the deadly physical force was directed at, and the family and friends of both and can impact the community as well…

“The Portland Police Bureau recognizes that members may be required to use deadly force when their lives or the life of another is jeopardized by the actions of others…

“Members must be mindful of the risks inherent in employing deadly force, which may endanger the lives of innocent persons. A member’s reckless or negligent use of deadly force is not justified in this policy or state statute. Members are to be aware that this directive is more restrictive than state statutes(my emphasis)

[For the entire policy, CLICK HERE.]

In my new BOOK, I noted that restricting the use of deadly force by my officers created conflict within the department. But, at the same time, gathered respect for police in the community. It was a matter of short-term versus long-term thinking:

“One morning in the mid-1970s, I remember attending a briefing of senior day-shift officers, most all of whom were males older than I was. A number of them soon began  complaining about the changes going on within the department—hiring women, new policies that restricted the use of deadly force and the requirement that a supervisor call off  high-speed chases if they became too dangerous to the community.

“I listened as the grousing continued. Then I asked them, ‘When I came to the department, many of your wives told me they were embarrassed to say their husbands were police officers. They shared with me that those days of riot and turmoil took a toll on them and your children, as well. Now looking back, think — is that the case now? Or are your wives and children proud that you are a Madison police officer?’ It was quiet in the room. I had made a point. These senior officers knew they had gained respect under my leadership. Everyone had benefited from our effort to professionalize—to be a first class police department. They knew they were now viewed as respected professionals in the community” (pp. 142).

In the end, we developed a police department of officers that the community considers to be well-trained and led, controlled in their use of force, honest, courteous to every person, and closely in touch with the community they serve.  That is what professional police officers do in a democracy.

Some of those characteristics are under scrutiny today.

How and how quickly the department responds to this challenge will be essential for community support in the future. What’s best in the long-term?

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About improvingpolice

I served over 20 years as the chief of police in Madison (WI), four years as chief of the Burnsville (MN) Police Department, and before that as a police officer in Edina (MN) and the City of Minneapolis. I hold graduate degrees from the University of Minnesota and Edgewood College in Madison. I have written many articles over my years as a police leader calling for police improvement (for example, How To Rate Your Local Police, and with my wife, Sabine, Quality Policing: The Madison Experience). After retiring from the police department, I answered a call to ministry, attended seminary, and was ordained as a priest in the Episcopal Church. At the present time, I serve a small church in North Lake (WI), east of Madison. Sabine and I have nine adult children, eleven grandchildren and four great-grandchildren. She is also a retired police officer and we both continue active lives.

18 Responses to “A Problem in Madison”

  1. Well put, David. Among other things, the situation you describe illustrates that even in really good police departments with really good leadership and really good personnel, the nature of the police role just about guarantees that controversies will arise, including fatal encounters like the one in Madison. I think you are on the right track in emphasizing both the legal and moral dimensions of police use of power and authority. Fully embracing both seems like the best way to minimize police use of force while still empowering police to protect themselves and others. Bittner famously said that it eventually comes down to “an intuitive grasp of situational exigencies.” Since his day we have tightened the parameters with laws, policies, training, and technology, but often it still comes down to a very difficult judgment call.

  2. Thank you for sharing your wisdom on this controversial issue. We, Paulie’s friends, family and the concerned community need to hear from the officers who think like you, Chief Couper. Yes, at the risk of losing favor and even their jobs, we are asking to hear from them. At this very moment, we need to witness the courage of those who aren’t asking us to subscribe to a version of “justice” that is identifiable only to our police department (MPD), the Mayor and the union (MPPOA). If we identify their concerns based on their actions during and following the internal investigations of Paulie Heenan’s death, they appear to be mostly concerned with power, stats and money. Keeping people alive and holding their police department accountable must climb higher on Chief Wray, Dan Frei and Mayor Soglin’s lists of priorities. We don’t want the “us vs. them” relationship that Chief Wray, Dan Frei and Mayor Soglin are forcing upon the community and department but under no circumstances will we compromise our demand for an immediate and long-term commitment to transparency and to actual trust-based policing, to void it. They must volunteer for the wisdom and humility that comes with calling failure what it is and reaching off of the insular track to assess and find answers. Great leaders find the gifts in failure and know when to reach out for help. So far, none are to be found among Wray, Frei and Soglin but we hope one will arise out of this horrible tragedy, for the sake of all citizens and police officers of this state and of course, the family and friends of Paulie Heenan. – Amelia Royko Maurer

  3. Saddened but trained and realistic Reply January 26, 2013 at 2:51 pm

    While a once respected Chief in Madison, that was many years ago. Former Chief Couper policed at a very different time. Madison is no longer the utopia that it once was, and for all practical purposes, may never have been according to his standards. The citizens need to wake up and see that while not a big city, we have big city problems. Officers are forced to make split second decisions with very little information. As officers, we hear every few days about officers that are killed responding to “routine” calls. Everyone that has ever killed an officer was someone’s neighbor. Everyone that has ever killed an officer while under the influence would probably never had made that choice had they been sober. Officers are not required to wait to be harmed before acting, nor must they wait to save your life until you are being harmed. The City is changing, the attitude toward police and authority figures is changing. With all do respect former Chief Couper, things have changed and of all people I would think you would have the foresight to see that.

    The officers that are employed by MPD are some of the most grounded, morally sound and empathetic people I have ever been privileged to work with. This includes the rank and file, right to the Chief of Police. At no time in my career have I ever been exposed to someone worried about power, stats or money.

    This was no doubt a tragedy no matter how you look at it. But, we have lost our expectation of personal responsibility. It starts with our youngest members of society. We must be held responsible for the choices that we make. If, in the midst of an interaction with a police officer, you act in such a way that the officer perceives you are attempting to disarm them, they are not required to way to be disarmed to react to such behavior.

    • Dear Guest 864,
      I appreciate your input and what you have to say. Perhaps that is so, I am an aged warrior who doesn’t know the dangers today’s mean streets. Or perhaps I do. Do not forget that I had another life before I joined the Madison PD as its chief. I was a defensive tactics instructor and tactical squad officer on the Minneapolis PD. It was the 60s. Things were changing. Cops got shot and killed. But I have always believed in being a strong ethical warrior. I learned how to use to force and to use it wisely. I was lucky. I never had to take a life. And to that I am extremely thankful. But along the way, I took down a lot of guys and knew good cops always had my back. What I write I write from experience. What I expect, I have always expected first of myself. God bless and be careful out there!

    • Your claims about our community and about modern policing are merely reiterations of those already made by our current police chief and our DA, and are exactly what David Couper convincingly calls into question in this post. Your failure to successfully refute any of the arguments made (and, believe me, members of the community have the same questions and concerns as David Couper) or address the other, and equally important, issues raised by this terrible situation, e.g. the problematic investigation process of potential police crimes, serves to reinforce the notion that there are indeed reasons for the Madison community to lack confidence in our police department. The authoritarian thinking and values expressed in your post (to be expected to some extent in a police officer), not David Couper, are what is out of touch with the current realities this case has highlighted.

      • Saddened but trained and realistic February 2, 2013 at 3:08 am

        I could refute all I want, you wouldn’t believe it regardless. Oh, did I just make a judgement about you, without knowing you. Back at ya. There is nothing “authoritarian” about my post. What is stated is not my opinion, it is the law. I suppose by referring to law, that does make it somewhat authoritarian. But after all, we are officers of the law.

        I was born and raised in Madison, on the side of town that this occurred. I attended public school. I thankfully grew up in a family that demanded volunteerism and have continued that into my adulthood. I have seen both sides of the issues. I have seen modern day policing and the change that has occurred in this city in more than 40 years. Perhaps the reason some of this has been reiterated, is that it is true.

        The former Chief, if I am correct, taught Judo and some other techniques of arrest tactics. No logical person could deny that things have changed in the last 50 years of policing. Things are rapidly evolving and continually changing as police attempt to keep up with a more confrontational and violent society.

        I don’t care who investigates me if I Gid forbid ever end up in this unfortunate situation, as long as I know they are competent. Perhaps the State needs a specially trained task force of sorts that can rapidly respond to investigate. I have nothing to hide. If I screw up, I am human. I swore to uphold the law. If I don’t hold up my end of the bargain, I deserve to be held accountable. If my coworkers screw up, the same goes for them. Those I work with are very clear that my job, integrity and pride in the badge are not worth protecting anyone that is not deserving of it.

        As for a moral responsibility relating to use of force. We do have moral responsibility, but it is part and parcel of the law and policy. When I perceive that you or I am in imminent danger of death or great bodily harm, I have a legal and moral obligation to use deadly force. If those requirements are not there, I again have a moral and legal obligation to use lesser force. I however, by law, do not have to get into a punch to punch fight with someone. I am allowed by law to use a greater amount of force. That amount which is required to control the subject. Trust that our faithful and dedicated trainers remind us of this often.

        As for the specifics of the investigation, I am only privy to that which has been released to you. Determinations have been made, but I am not opposed to others reviewing it. I like going to work everyday knowing that the people in my work group are quite literally some of the most compassionate, kind, intelligent and moral people I could ever choose to surround myself with. I wouldn’t want it any other way. At no point in my post did I make a judgement of “right or wrong”, just pointed out some things that others seem to be leaving out. Or, simply refusing to acknowledge.

        What I do take exception with, is what seems to be a former Chief taking credit for years of work that has been done by so many. A shameless plug for a book. A “man of God” going about his business via a blog that throws an entire department, with whom he has had little connection for years, under the bus. Perhaps i am taking it too personally, but it reads to me as “if only i were still in charge”.

        Most of the trust that has been earned by the community, and admittedly lost, has not come from any Chief. It comes from the rank and file officers that the public has contact with everyday. It comes from a hiring process, conducted by countless people, other than the Chief, that demands well educated, forward thinking, problem solving, inclusive and tolerant people. Quite honestly, the most influential people in my career have been those that were members of the training department that demanded greatness. They demanded a mix intelligence and common sense, Physical, verbal and written skill. They taught me, challenged me and tested me. They taught me to police with fairness, compassion, justice and physical force as a last resort.

        I have travelled the country and know officers from jurisdictions large and small, state and municipal. The citizens of Madison are unaware of what a competent and dedicated department they have. But, they must also realize that as the City and demands of police change, so will the customer service. Unless of course public safety is made a top priority, but who wants to pay for that. We are human. Unfortunately, it is a high priced job. Had an officer been killed that night, I truly believe the City would have mourned and we (the city) would have moved on with an attitude of, that’s what they get paid for.

        Putting on a protective vest and explaining to my daughter that I love her, but my job may take my life, will on some degree be lost on anyone who has never had to do it. But I will do it tomorrow and so will my dedicated and competent coworkers. And when you call for help, they won’t ask what your beliefs are, how much money you make, what your religious affiliations are and so on. But they will risk their lives to save yours and your loved ones.

        When I wake in the night with the visions of all of the horrible things I have seen, smelled, been exposed to, I won’t ask for your sympathy. I will get up and do it again. When you run out of the movie theater as a masked man goes on a rampage, I will run past you, in the opposite direction. When I see children massacred, and have trouble psychologically getting beyond that, I am not entitled to workers comp as it isn’t a visible injury. But you, can cut yourself at work and get care. But, I will do it again tomorrow because I am proud to wear the badge and will serve my community with fairness and compassion even after spit literally hits me in the face. And a question for you? When was the last time you did the same when you went to work. I don’t mind being held accountable, but I also don’t go into someone else’s office and presume to know better how to do their job.

      • Dear “Guest,”
        I see that we do have something in common — a love for policing. I am sorry if you have sensed that I am “throwing the department under the bus.” That, I assure you, is not my intention. What I am trying to do without casting aspersions on the department is to call the department to its core values (the policy) which is a body of values — “On This We Stand!” Yes, I have been retired almost 20 years but I have not closed my eyes and ears to policing as it is today. If you have read my book, I hope you will sense that it is designed to encourage the improvement of policing (especially its leadership), the importance of enabling and supporting rank and file officers, and to provide a way forward for them. I felt called to write the book because of what I saw was happening to police since 9/11. I do not wish to return to policing, as I have another calling which also requires me to speak out when I see injustice. I have always believed cops (we) could always be better than we were. I was street cop in an tough urban city for seven years. I have not forgotten that experience. I am sorry that you believe that I have. The reason I have such strong feelings on the recent shooting is that I have been there. Thank you for serving and I appreciate the time you have taken to write to me. And — be careful out there…

  4. Dear Guest 864

    What about making the oldest people and institutions in society responsible for their actions especially rich people and institutions? You don’t see them being held accountable for what they have done for the last 30 years. Of course, the police don’t have the moral courage to stand up to rich people and corporations and hold them accountable for their crimes.

    “If, in the midst of an interaction with a police officer, you act in such a way that the officer perceives you are attempting to disarm them, they are not required to way to be disarmed to react to such behavior.”

    When police tried disarm peaceful protesters without proper justification and using illegal, improper violence use of force, then don’t expect the protesters to just stand by and not take you to court for violating their civil rights plus violating police policies and procedures. If American cops tried to pull those kinds of stuff in Europe, they would find themselves wiping the floor by the civilian population and then being send to the hospital. Awhile ago, someone on this website stated that if the police continue to be on the side of the corporations and rich people due to the current economic condition, then sooner or later, the people will be packing heat and will be taking retribution against the police. Your police badge and gun will no longer give you cops anything of immunity from a mob of avenging civilians.

    It is apparent that police are going back to to good old days of being a private force for rich people and corporations and they have post 9/11 laws to legalizes their actions against the population without no legal recourse for civilians to get justice.

  5. Dear saddened but trained and realistic

    “however, by law, do not have to get into a punch to punch fight with someone…..”

    Peaceful protesters, labor union activists, and striking workers should not have to worry about getting punch, beaten, taser, and/or shot down by a supposedly impartial police force. And these people are laying their lives on the line for a better America something which too many cops do not understand nor will ever understand and you wouldn’t believe it.

    “Putting on a protective vest and explaining to my daughter that I love her, but my job may take my life, will on some degree be lost on anyone who has never had to do it.”

    Coal mining and the hazard coal waste products take many lives of American workers and American citizens living near the coal mines due to corporate bribery of our elected officials at the local, state, and federal level, but that is lost on many of you cops who neither did that kind of work nor live in that toxic environment. Furthermore, when you look at the labor movement in America, you had workers laying their lives on the line at the risk of getting killed or injure by private security companies and law enforcement.

  6. Dear Saddened but trained and realistic:

    “When I see children massacred, and have trouble psychologically getting beyond that, I am not entitled to workers comp as it isn’t a visible injury. But you, can cut yourself at work and get care. ”

    There is no affordable health care for physical and mental injuries for too many Americans. In addition, employers are working hand in hand with corrupted government officials not to get workers comp whether the injury is physical or mental. Furthermore, Furthermore, you have county, state, and federal governments cutting back or eliminating mental health care programs. Moreover, if you tried to take time off to see a doctor or take your family member to see a doctor, your employer will fired you on the spot. You do not have no idea of what is going on in America.

    ” don’t mind being held accountable, but I also don’t go into someone else’s office and presume to know better how to do their job.”

    That is why you have civilian oversight or the FBI coming in and cleaning out police departments because you guys don’t know how to do your jobs. By the way, I don’t see you guys coming to a corporate office and arresting white collar CEOs because they did not doing their jobs.

    Back at you.

  7. Generally I do not read post on blogs, but I would like to say that this write-up very compelled me to take a
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  8. Greetings! Quick question that’s completely off topic. Do you know how to make your site mobile friendly? My site looks weird when viewing from my iphone4. I’m trying to find a
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  9. Hmm is anyone else experiencing problems with the pictures on this blog loading?

    I’m trying to find out if its a problem on my end or if it’s the blog.
    Any suggestions would be greatly appreciated.

Trackbacks/Pingbacks

  1. Stepping Back: Reflecting On a Police Shooting « improving police - February 5, 2013

    [...] 1. A Problem in Madison (Jan. 21, 2013) [...]

  2. Police and the Mentally Ill: From Last Resort to First Resort? | improving police - March 27, 2014

    […] 1. A Problem in Madison (Jan. 21, 2013) […]

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