Republished with Permission from InsiderAdvantage Georgia© | January 11, 2022
American law provides two distinct avenues, civil and criminal
courts, to address culpable conduct, so when should a human error -an
equivocal mistake- lead to a prison sentence? Weapon confusion cases
turn the line between civil and criminal culpability into a chasm where
lives hang in the balance while courts, law enforcement agencies, media
outlets, and the public spiral down the rabbit hole.
Criminal negligence resulting in a death, codified as manslaughter,
occurs when a person disregards a known and unjustifiable risk of
injury. Manslaughter cases require juries to probe into the subjective
mind of the accused whereas intent is typically demonstrated by looking
solely at the outcome. For example, an armed robber who stabbed his
victim to death intended to commit a crime. However, if the attendant
circumstances unequivocally indicate that an officer did not intend to
use deadly force, does the death of another due to weapon confusion fit
the requirements of criminal negligence?
Manslaughter charges reflect societal accountability principles
because the criminal defendant was in control of the mechanism,
conditions, and circumstances that led to the death, like a target
shooter who kills another because he failed to ensure a safe backstop
for his bullets. In stark contrast, Kim Potter’s agency chose the
weapons she carried, the holsters in which she carried them, the
location of the weapons, the training required to carry them, and the
level of proficiency required to possess them on duty. Further, the
emergency that required her to act under extreme stress in
time-compressed circumstances was unequivocally created by Duante
Wright. Unlike the typical manslaughter defendant, Kim Potter did not
have control over the mechanism and circumstances that led to her weapon
confusion. So, how did she “disregard the known, unjustifiable risk”
that led to Duante Wright’s death?
Efforts to understand human error started in 1890 when William James, the father of American Psychology, wrote in The Principles of Psychology, Volume 1,
p.243, “not only is it the right thing at the right time that we thus
involuntarily do, but the wrong thing also, if it be habitual.” James
noted that “rehearsal” is insufficient in preventing these errors
because the action is performed automatically. Errors usually occur when
operating automatically or with little thought to the action such as
when an officer, surgeon, or pilot is attempting to solve a critical
problem in time-compressed and consequential circumstances while their
attention is focused on the solution and not the process.
Researchers in medicine, engineering, the aerospace industry, and
nuclear energy have created a growing, robust body of research on errors
– how people and systems have failed. That research, as well as
everyday experiences, demonstrate that many of these errors are part of
skilled behavior and they occur because they are part of
skilled behavior. A person learning a new skill pays a great deal of
attention to that skill but diligent, appropriate practice reduces
vigilance as the behavior becomes automatic. Professionals rely on
automatic behavior to focus on decisions or solve problems and therefore
rely heavily on automated behavior under time-compressed, stressful
circumstances. This sets the stage for performance errors.
One type of performance error is categorized as a “slip.” Norman, D. A. (1981). Categorization of action slips, Psychological Review,
88(1), 1., provided a very comprehensive categorization of action slip
errors noting, as did William James, that action slips occur when a
well-formed habit is performed in inappropriate circumstances. Another
type of “slip” is called a “capture” error where a more frequently or
better-learned sequence captures control. James Reason (1990) labeled
this a “slip” and also a “capture” performance error. Reason, J., Human Error,
1990 Cambridge University Press. Wickens also noted that the action
sequence that leads to capture errors is automated and not monitored
closely by attention. Wickens, C., Helton, W., Hollands, J., Barbury, S.
(2021) Engineering Psychology and Human Performance 5th Edition, Routledge.
Most, like Norman and Reason, take a cognitive psychological approach
to errors. Others take a more comprehensive approach focusing on
ergonomics or systems errors as a result of a system or design factors.
The former focuses on training and perception under stress. The latter
would examine whether the “L- shaped” pistol-grip design of the Taser,
the position of it on the belt, or the similarity of action performance
between drawing a Taser and a firearm that led to weapon confusion-the
“slip”- and drawing the firearm-the “capture.” Both approaches may be
necessary to solve the weapon confusion problem.
An interesting aspect of slip errors is an inability to detect them
until they are complete. A person intently focused on a threat may be
completely inattentive to finer elements of the weight, shape, and color
of the instrument they have in hand while focused on a rapidly evolving
threat. The concept of “Brain Filtering” or “Sensory Gating” where
important information is ignored or even suppressed as the brain focuses
on more critical cues, was introduced by D. E. Broadbent, (1958) in his
classical text, Perception and Communication, Pergamon
Press. Human performance researchers and neuroscientists have since
explained that once we conclude, even erroneously, that we are executing
correct action, we disregard feedback indicating that we may have
selected the wrong tool or weapon. Heald, J., Lengyel, M., &
Wolpert, D. (2021), Contextual Inference underlies the learning of Sensorimotor Repertoires, Nature,
600, 489-493. Bourne and Yaroush, (2003), in a working document for
NASA, noted the effects of distraction, cognitive overload, stress, and
multitasking as contributing to the inattention factor in action errors.
Stress and cognition: A cognitive Psychological Perspective, IH-045,
NASA/CR-2003-212282. Apply these principles to a police officer facing
an escalating and perceived deadly threat who decides to draw her Taser
and instead draws her firearm that she has drawn in training thousands
Humans make errors. Surgeons perform “wrong site” surgeries,
engineers disregard stop signals driving into loaded passenger trains,
and pilots have landed planes on top of other aircraft. The law
addresses these mistakes in civil courts, and these professions
recognize such errors as reflections of the fallibility of human
perception and performance under stress. These tragedies drive more
training, process management, and research. If the bona fide errors of
law enforcement officers are to be labeled criminal acts, perhaps the
only way for officers to escape indictment and prison is to avoid any
action under stress.
The Kim Potter trial examined the frailty of human abilities under
pressure. Commentators and “experts” who dismiss weapon confusion as
lacking scientific support or assign malicious motives for Potter’s
clear error expose their anti-law enforcement bias. Those who ignore
Duante Wright’s role pour accelerant on a societal inferno. Today they
condemn a life-long public servant whose error was writ large on the
national stage. Tomorrow they may pray for a rapid law enforcement
response followed by decisive action under stress.
About the Authors
Dr. William Lewinski is
the Executive Director of Force Science. He is one of the nation’s
foremost researchers on the use of force by law enforcement. Dr.
Lewinski will be hosting the 3rd Annual Force Science Conference in Orlando Florida, June 21-23, 2022.
Mr. Lance LoRusso is the Principle Attorney at LoRusso Law Firm.
He is licensed to practice in Georgia, Tennessee, & Arkansas and is
considered to be one of the nation’s leading attorneys specializing in
the defense of law enforcement officers. Mr. LoRusso will be a Keynote Speaker at the 3rd Annual Force Science Conference.