Simcha Walfish
recent graduate, McGill University, Faculty of Law
15 June 2020
“I told the SWAT team that the suspect was firing at me from down a long dark hallway about 40 feet long. When I went back to the scene the next day, I was shocked to discover that he had actually been only about 5 feet in front of me in an open room. There was no dark hallway.”
– unnamed officer, after shooting a person, cited in “Perceptual and Memory Distortion During Officer-Involved Shootings” by Alexis Artwohl, Ph.D
In 2016, a Toronto jury returned the unusual verdict in the trial of James Forcillo: not guilty of the second-degree murder of Sammy Yatim yet guilty of attempted murder. Forcillo appealed. At the last moment before his appeal was heard, his lawyers filed an application to adduce fresh evidence, not heard at trial. This was out of the ordinary not just because of the lateness of the application but because fresh evidence is not, in general, allowed in an appeal.
Forcillo’s lawyers argued this new evidence was “capable of tipping the scales” for his case. The evidence consisted of new studies on the phenomenon of “critical incident stress” in which police often report distorted perceptions.
The defense argued that, had the jury had the benefit of this research, it “would have been more likely to accept that [Forcillo] honestly was mistaken about [Yatim]’s movement prior to the second volley.” To the Crown, this was pushing the concept too far: “Neither at trial nor now on appeal has anyone offered the opinion that stress can cause a person to misperceive in the way [Forcillo’s lawyer] described, that is, to hallucinate that someone has raised their body up to a 45-degree angle off the floor.”
The Court sided with the Crown, reasoning that the evidence “is adduced in an attempt to bolster the appellant’s claim that he honestly believed that he saw Mr. Yatim rise to a 45-degree angle just before firing the second volley. However, the fresh evidence does not advance the appellant’s position at all. Neither expert sheds light on the likelihood of the appellant experiencing the perceptual distortion or hallucination that he claims.”
While Forcillo’s move rightly got no traction at the Court of Appeal, several studies in police psychology in the last two decades have raised the phenomenon of police claiming to have experienced perceptual distortions while using force. In a 2002 study of 157 officers who had shot people, Alexis Artwohl found that
62 percent of the officers viewed the incident in slow motion, while 17 percent said that time appeared to speed up. Eighty-four percent of the officers noted that sounds seemed diminished, whereas 16 percent thought that sounds were intensified. Seventy-nine percent had tunnel vision, while 71 percent experienced heightened visual clarity.
In 2009, Klinger and Brunson published the results of interviews with 80 officers who had shot 113 citizens:
The single distortion most commonly experienced was diminished sound, which occurred in 82% of the cases. On the flip side of the auditory coin, officers perceived some noises as being exceptionally loud in 20% of the cases. Officers reported getting tunnel vision in 51% of the cases and having a heightened sense of visual detail in 56%. As for time distortions, officers experienced slow motion in 56% of the shootings and fast motion in 23%.
In a 2016 study, Judith P. Andersen (one of the psychologists whose work Forcillo’s lawyers tried to have admitted) and Harri Gustafsberg explain the theory behind these purported distortions: “when an individual encounters a potential threat, the body engages in a series of automatic physiological processes in response to the threat. During a physiological stress response, the sympathetic nervous system (SNS) is activated, and the parasympathetic nervous system (PNS), responsible for calming and stabilizing the body, is withdrawn.” In the context of a police incident, officers experience fight or flight, “an instinctual survival response comprised of significant neurological, behavioral, and neuroendocrine changes, and is accompanied by negative emotions such as anxiety, fear, and anger (Lipton, 2008; Lovallo, 2016).” They note that
During fight or flight, perceptual distortions in sensory information can occur. Sensory distortions include changes in vision, sense of time (i.e., slowing down or speeding up), and a narrowing of auditory information (Klinger, 2006; Klinger & Brunson, 2009). Vision is compromised in three ways: reduced peripheral vision, distance-only eyesight, and forced binocular vision (Olson, 1998). Reduced peripheral vision, also known as “tunnel vision,” is caused by restricted blood flow to the eyes and eye muscle contractions. The eye lens tends to flatten, thus reducing depth perception. The eyes focus on the source of a threat, with heightened attention to visual detail, while ignoring near objects (Olson, 1998). Officers may focus on one single threat, missing other potentially life-threatening cues around them.
When an officer maintains that what they experienced, what they saw, what they felt, diverges from the reality of the situation, what should courts make of it?
“Exigency of the moment”
In the United States, following Graham v Connor (1989), the courts ask whether use of force was “objectively reasonable.” This is assessed case-by-case, and is to be determined “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
The majority reasoned that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”
In Canada, police use of force is governed by several provisions of the Criminal Code, including 25(1):
Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(b) as a peace officer or public officer,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
In R v Nasogaluak (2010), the Supreme Court expanded on the language of s. 25(1), explaining that it
essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis.
While this formulation perhaps hangs less tenuously on the subjective perception of officers, it similarly suggests that police actions should not be judged with 20/20 hindsight, calling for deference to officers’ judgments which are formed under the stress of the moment: “Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.”
This interpretation of section 25 is even more explicit in the Alberta Court of Appeal’s decision in Crampton v Walton (2005) where the Court reasoned that “Police officers are not expected to measure the precise amount of force the situation requires. Nor will they be denied the protection of s. 25(1) if they fail to use the least amount of force that would achieve the desired result. Allowance must be made for an officer, in the exigency of the moment, misjudging the degree of necessary force. Accordingly, the immediate decisions a police officer makes in the course of duty are not assessed through the ‘lens of hindsight.’” [citations omitted]
Reasonableness when perception is distorted
Klinger and Brunson argue that officers’ experiences of perceptual distortion provide necessary context to inform the court’s analysis of whether an officer’s use of force meets the “reasonableness standard” required by law:
Because the reasonable officer on (or at) the scene standard is so critical when it comes to judging the ultimate exercise of police power, it would be helpful to have as complete an understanding as possible of what officers experience during incidents in which they use deadly force; such an understanding would help to define what constitutes reasonableness in the context of deadly force encounters.
In an article on “The Search for Reasonableness in Use-of-Force Cases,” Seth D. DuCharme agrees, asking “Should defendants be liable or culpable for the dangerous conduct that may result from their mistaken beliefs?” DuCharme argues that “Scientific researchers have developed a body of knowledge that can assist the fact-finder in the determination of reasonableness. To perform a reasonableness analysis absent consideration of the profound effects of stress on perception and performance denies the jury relevant and probative contextual information.”
Not surprisingly, police officers accused of excessive use of force have jumped on this line of research in their defence. As Zachary Siegel writes, while it is unusual for officers to use psychological evidence—mostly because it is unusual for them to be tried at all— “testimony on the unique and stressful psychological tableau of police work has become a staple for the defense.”
This has created a lucrative industry for a handful of psychologists willing to use their credentials to convince juries to see the reasonableness of officers’ allegedly distorted perspectives. As Siegel notes, psychologists like Laurence Miller, who testified in Forcillo’s trial, charge $10,000 USD per day of testimony. Another notable psychologist, William J. Lewinski, charges $1000/hour to convince juries that police were justified in killing people using highly questionable methodology. This use of psychology raises serious moral and scientific concerns.
As psychologist Phillip Atiba Goff argues, “This is a bad area for science to be in.” For Goff,
“It’s morally egregious to advance a theory of science that argues because of the job police have, and the way that we train them, that stress should now be exculpatory for law enforcement.”
While this research has only emerged in recent years, experts like Miller paint it as nothing new, telling a Chicago jury that “just about all of what I’m going to be testifying to in the area of police psychology grows out of a much larger field that goes back almost a century, on the psychology and neuroscience of the brain’s response to emergency situations.” Nor is the science nearly as explanatory as psychologists hired by accused officers would have juries believe. While it is ostensibly based on established science of stress, there are those who argue it cannot, or cannot yet explain enough to be useful in any particular case.
In a 2012 review of the literature, Marek Novy wrote that there had so far been only nine systematic studies published examining police reactions during shootings. Most of the studies used mailed surveys or questionnaires and a relatively small sample size. Furthermore, they have been published in a wide range of journals, from peer-reviewed psychological journals, to police journals, making them difficult to compare. Moreover, he found that the language tended to mix law enforcement terms with clinical terms, with the same words given different meanings in different studies. Problematically, for Novy, most of the studies did not seek to explain the theories by using existing theoretical models, making them difficult to assess scientifically. “Finally,” he concludes, “it is noticeable that none of the cited nine systematic studies attempted to explore cognitive distortions under stress in relation to other important variables. Not a single study raised the question: What is the relation between cognitive distortions in extremely stressful situations and the personality?”
A more recent study by Louise E. Porter, Nina J. Westera, Geoffrey P. Alpert, and Andrea Allen found that “only 10.99% of recruits reported experiencing perceptual impairments, such impairments can impede officers’ abilities to assess the situation (what they see and hear).”
When officers’ counsel try to bring this psychology into the courtroom, at least two central issues arise: motivation to lie and underdetermination. As Arien Mack, one of two psychologists who coined the term inattentional blindness, argues “When we work in a lab, we ask them if they saw something. They have no motivation to lie. A police officer involved in a shooting certainly has a reason to lie.” Here, where the law has given permission to explore the interiority of the officer, psychologists step in to give a seemingly sound scientific foundation that can be used whether the officer is telling the truth or not.
Further, even if the officer is telling the truth and the science is correct, it is far from clear that it can ever actually explain why an officer pulled the trigger at any given moment. One thing the broader literature on police shootings emphasizes is that pinning down a particular reason for shooting is impossible. As Cox et al. write:
One lesson to learn from the present research is that shooting decisions are not made in a vacuum. To the extent that we would like to generalize to the important real-world context of officer shooting decisions, we need to take seriously the complexity of the circumstances in which shoot or don’t shoot decisions are made. […]
In real life, officers are nested within neighborhoods and cities, and understanding these broader social contexts is central to understanding shooting decisions and shooting mistakes. Added to suspect race, officer race, and neighborhoods, we may need to study the effect of time of day, timing within shift, whether violent events have occurred recently in the area patrolled, how suspects are dressed, their SES [socioeconomic status] level, and so on.
While it is possible that, eventually, this research could be useful to provide a fuller picture of the reasonableness of a particular action, there is always a danger that it will be used to overwhelm the jury, giving a ready-made verdict stamped with the legitimacy of science. This seems like precisely what psychologist William J. Lewinski has been called to do in many cases in the United States, Canada, and England. As Matt Apuzzo writes in the New York Times, “His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.” This legitimacy of science, too, seems to be what Forcillo’s team was looking for when trying to ‘tip the scales’ at the Court of Appeal. The Court was right to see through it.
References:
Andersen, J. P. and Gustafsberg, H. (2016) ‘A Training Method to Improve Police Use of Force Decision Making: A Randomized Controlled Trial’, SAGE Open. doi: 10.1177/2158244016638708.
Apuzzo, M., Aug 1, 2015. Training Officers to Shoot First, and He Will Answer Questions Later. The New York Times. URL: https://www.nytimes.com/2015/08/02/us/training-officers-to-shoot-first-and-he-will-answer-questions-later.html
Artwohl, A., 2002. Perceptual and memory distortion during officer-involved shootings. FBI L. Enforcement Bull. 71, 18.
Cox, W.T.L., Devine, P.G., Plant, E.A., Schwartz, L.L., 2014. Toward a Comprehensive Understanding of Officers’ Shooting Decisions: No Simple Answers to This Complex Problem. Basic and Applied Social Psychology 36, 356–364. https://doi.org/10.1080/01973533.2014.923312
Crampton v. Walton, 2005 ABCA 81.
Criminal Code, RSC 1985, c C-46.
DuCharme, S.D., 2001. The search for reasonableness in use-of-force cases: understanding the effects of stress on perception and performance. Fordham L. Rev. 70, 2515.
Gillis, W., 2018. Lawyers for cop who shot Sammy Yatim say ‘fresh evidence’ warrants new trial. thestar.com. URL https://www.thestar.com/news/gta/2018/02/17/lawyers-for-cop-who-shot-sammy-yatim-say-fresh-evidence-warrants-new-trial.html (accessed 4.28.20).
Graham v. Connor, 1989, US. Supreme Court.
Hine, K.A., Porter, L.E., Westera, N.J., Alpert, G.P., Allen, A., 2018. Exploring police use of force decision-making processes and impairments using a Naturalistic decision-making approach. Criminal Justice and Behavior 45, 1782–1801.
Klinger, D.A., Brunson, R.K., 2009. Police officers’ perceptual distortions during lethal force situations: Informing the reasonableness standard. Criminology & Public Policy 8, 117–140.
Novy, M., 2012. Cognitive Distortions During Law Enforcement Shooting. Activitas Nervosa Superior 54, 60–66. https://doi.org/10.1007/BF03379584
R. v. Forcillo, 2018 ONCA 402.
R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
Russell, J., Rusnell, C., April 4, 2013. Canada warned about controversial police shooting expert | CBC News. URL: https://www.cbc.ca/news/canada/edmonton/canada-warned-about-controversial-police-shooting-expert-1.1374682
Siegel, Z., 2018. Is the Psychology of Deadly Force Ready for the Courts? Scientific American. URL: https://www.scientificamerican.com/article/is-the-psychology-of-deadly-force-ready-for-the-courts/
Further reading
Is the Psychology of Deadly Force Ready for the Courts? by Zachary Siegel
Training Officers to Shoot First, and He Will Answer Questions Later by Matt Apuzzo
The psychological science of racial bias and policing by Jillian K. Swencionis and Phillip Atiba Goff
All links accessed on October 20, 2019
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