OnPolicing Blog

Raising Our Standards Above Criminal Culpability

November 24, 2016

Ed Flynn

Chief Edward A. Flynn

Milwaukee Police Department, WI

Ed Flynn

Chief Edward A. Flynn

Milwaukee Police Department, WI

These days, there cannot be many more difficult jobs than being a cop in the United States. It’s reached such a point that in many ways, I can liken it to being a member of the military, serving overseas in a hot zone.

I say that because much like in the military, we in the law enforcement community are in the business of making critical decisions that impact people’s lives, and yet have to make those tough decisions with insufficient information. We are going to make mistakes. We can’t not make them.

We are encountering criminals with high-capacity firearms who are becoming more sophisticated at being criminals every day. They are cold, calculating and clearly have no problem killing people, particularly people in our inner cities. We also deal on a daily basis with more mental health issues than mental health professionals.

Our military men and women also have to make critical decisions with insufficient information. Sometimes they make mistakes, and civilians die. It’s horrible. It’s also the reality of war. But when one of our soldiers drops a bomb on the wrong place and innocents are killed, we don’t make the person a war criminal if the mistake was based on bad information. They do not face a trial.

But they can face discipline. Sometimes it’s minor, but discipline is still doled out through paperwork that goes into the person’s file. Sometimes it’s major and the person is discharged from the military.

We had just such a case in 2014. One of our officers approached a mentally ill man after a call came in about someone acting strangely in a public park here in downtown Milwaukee. Despite accurately assessing that the man was mentally ill, the officer approached him as a potential criminal. Ignoring much of his training, the officer told the man who was lying down to stand up. He then told the man he was going to search him for weapons, and when his hands touched the civilian, the civilian became highly agitated and began resisting the officer. The officer lost his baton to the civilian, who began hitting the officer. As a result, the officer pulled his gun and killed the civilian, shooting him 14 times.

What made this case particularly troubling was the officer was not the first member of my department to encounter the civilian that day. Only a short time earlier, and unbeknownst to the officer, two of his fellow cops had already approached, assessed and spoken with this emotionally disturbed person and, relying on their mental health training, determined he was not a threat and they moved on.

So what was the difference in these two instances of officers encountering the civilian? All three officers come from the same police department. All three had the same training.

The difference, as our investigation determined, was the officer who was alone made multiple mistakes. He did not follow protocol for dealing with a potentially mentally ill person. He made judgments that were unnecessary. And he also did not follow his defensive tactics protocols. Collectively, these mistakes triggered the event in which he had no option but the use of deadly force.

Essentially, the officer’s choices led to the death of the civilian because they caused the mentally ill man to snap and then force the officer to take steps to defend himself. Both the offices of the district attorney and U.S. Attorney investigated the case and found the officer did not commit a crime and his choices were protected under the guidelines of the U.S. Supreme Court in Graham v. Connor. As he was not criminally culpable, he was not charged with a crime.

Police officers understandably applauded those decisions as they identified with the officer’s plight and believed he had no options but to use deadly force when he did. Many segments of the public were outraged by what appeared to be the system failing to hold the officer accountable for the death.

My responsibility as police chief was to examine this case beyond the confines of criminal culpability. The officer clearly had no criminal intent. He was defending himself. But his failure to adhere to departmental training and protocols were the proximate cause of his need to use deadly force. Someone died because of his incompetence. I therefore fired the officer.

The term “officer-created jeopardy” has been used in recent years to describe circumstances in which an officer’s use of force is the result of poor decision-making that leaves the officer with no options. In some circles, these uses of force are called “lawful but awful.” In my experience, an overwhelming use of police officer deadly force have been both lawful and within policy. The protections from criminal culpability embedded in the Graham v. Connor decision are appropriate. But exoneration from criminal culpability does not relieve the police chief executive from responsibility for judging the totality of the circumstances that led to that use of force and whether there was a violation of training or policy.

In our department, we have seven core values that every member is expected to uphold. One of our core values is competence. It should go without saying, but you not only have to know how to do your job – you have to know how to apply your training under crisis.

As a chief, I have an obligation to support officers who act consistent with their training when attempting to fulfill their lawful responsibilities, even when there is an unintended tragic outcome. I need to balance an evaluation of the officer’s experience, training, and intentions against the degree of harm. Unintentional error must be judged differently than intentional error. Any error must be balanced against the degree of harm. Loss of life is the ultimate degree of harm.

The crucial point for police leaders is to actively lead. That means that although the legal standard may not have met criminal culpability, chiefs have a responsibility to apply broader standards to evaluating the officer’s conduct. There will be times when the police chief must hold the officer accountable for essentially being incompetent even though the officer has acted within the confines of legal precedent.

There may be a need for a job-related consequence, and that is the job of the chief, not the DA or the U.S. Attorney.

If we as a whole in law enforcement had done more of that in the past 25 years, there would be fewer calls for prison for cops every time they make a mistake. That is certainly what I heard in this case I have been discussing. People were angry – they wanted consequences for the officer. Some wanted revenge. I as chief had to walk the line between defending the officer’s use of deadly force at the moment that he was defending himself while at the same time, sanctioning him for the poor decisions that left him no alternative.

Not surprisingly, this decision pleased neither the activist community nor the rank-and-file. But it was my obligation to draw that distinction, as it is the obligation of every police executive.

If police chiefs do not accept this responsibility, public expectations for accountability will focus exclusively on criminal sanctions and the enactment of laws that will criminalize consequences of police decisions made under conditions of extreme stress overwhelmingly made for the public interest. That would be bad for the police, bad for the community, and have devastating consequences for the safety of both.


Edward A. Flynn was appointed Chief of the Milwaukee Police Department in January of 2008.  He has led five police departments, including Arlington, Virginia, and Springfield, Massachusetts after a career in the Jersey City Police Department. He also served as the Secretary of Public Safety under former-Massachusetts Governor Mitt Romney.

Flynn holds a Bachelor of Arts degree in History from LaSalle University in Philadelphia, a Masters degree in Criminal Justice from John Jay College of Criminal Justice in New York and completed all coursework in the Ph.D. program in Criminal Justice from City University in New York.  Chief Flynn is a graduate of the FBI National Academy, the National Executive Institute and was a National Institute of Justice Pickett Fellow at Harvard’s Kennedy School of Government.

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Ed Flynn

Chief Edward A. Flynn

Milwaukee Police Department, WI

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