Burlington Police Must Intervene If Witnessing Officers Using Excessive Force, Per New Order

Interviewer: We’re talking with Paul Harding from Martin, Harding & Mazzotti. Let me ask you about a recent story that was in the Burlington Free Press. Burlington police have now put into place a rule that forces police officers, they must now intervene when they see one of their peers acting inappropriately with a suspect or with somebody that they’re interacting with. This is obviously in response to the national conversation that is being had right now after the death of Mr. Floyd. What do you think this means for the police officers and their potential liability concerning intervening with one of their colleagues? I’m sure this has to put them a little on edge.

Paul: You know, I’d like to think that this is like not news to them, right? You know, if they saw something that didn’t feel right that they would react anyway, you know? So now they’ve got this mandate out there, this spotlight on this. I don’t think the police are waking up going, “Oh, wow, what a great idea,” you know? I think that’s been their policy, because it’s always this. Right? It always comes down to protecting the public, protecting themselves, and, you know, doing their job, which is, we’ve got bad people out there that need to be, you know, straightened out, they need to be, to have some police intervention. They need to go through the court system, they need to change their way, they need to dry out. There’s that type of thing. But, really, when we look at what’s happening nationally, I mean, the piece of it is here, look at, obviously, excessive force is a problem. Excessive force, what we’re seeing, we’re watching these, you know, the country just sort of, implode.

So what’s your reaction to that? I think you’ve got a just genuine sense that the police in Burlington are doing it right. But now it’s in writing and they’ve maybe got a little more authority where they’re going to step in, and if they don’t step in, are they now going to be on the hook if they stand around and watch something? So, you know, little extra pressure. It’s hard being a police officer anyway. I think that this could add just a little more stress to them, even though when you read the new rules, they sound great.

Interviewer: And Paul, it’s like you said, it seems like a no brainer. In the Minneapolis situation, obviously, those officers, we all believe, I think got to face charges at some point. But do you think there’s… It seems so obvious, but do you think there’s any kind of a gray line there? Is it as clear as we think?

Paul: First of all, you know, I have law enforcement in my family or friends and lots of them and, you know, the blue wall, there’s a blue line, whatever you call it, you know, is sort of, they never teach that, but they kind of back each other up, you know, to some degree and there’s camaraderie and there’s relational things that really make it work. So, you know, to the extent that you’re going to have an officer who is going to kind of maybe go in to say to another officer, “Stop that,” you know, push them off somebody. That’s what they’re hoping, that’s what we would like to have seen in Minnesota. We didn’t see it. We saw them standing around.

So, to this, there’s a sense that probably… You know, because let’s face it, they’re just people. Police officers are people. You know, things get emotional. You know, they’re always going into…you know, in these situations, in adversarial situation. I mean, how do we act adversarial? You know? When someone comes in and says, “You don’t have your mask on.” You know, what’s your first reaction? “I’m so sorry?” Or is there a little piece of you that says, “Wait a second, my rights are being…” You know, you want to kind of have a little conversation. Things can heat up. But, the police live in that world all the time. So the balance of excessive force sometimes is just like a look back. It’s like, “Oh, wow, yeah.” The look back, “I probably didn’t need to do that. But at the moment, I felt unsafe, I felt that there was lack of respect for the department.”

So, look, we’ve got great police officers, and we’ve got a great, you know…? And there’s always going to be a situation that can get…spin a little bit out of control. I think it’s appropriate that a rule that they’re putting out there, but I don’t see massive changes here. I don’t see the police, you know, going and doing a 180. I think it just gives a little more authority for cooler heads to prevail. “Hey, listen, you know, maybe we need to walk away from this, or let that person leave, even though we probably should arrest them. But things are spinning out of control, we need to de-escalate this.” Which was the second part of that mandate.

Interviewer: And Kurt and I have acknowledged on-air and we’ve shared this before, what we saw on video we think is outrageous. Going back to what Kurt was saying, this seems like a no brainer, but, in law, vagueness really doesn’t help the situation because it leaves so much latitude that it’s hard to convict, it’s hard to prove, it’s hard to… You could probably say it a lot better than I can. But that seems to be the language in itself makes it difficult to enforce.

Paul: If there were a claim brought for police brutality, this makes it a little bit easier, one would make an argument, right? That, “Hey, not only did you do this, but you didn’t do this,” you know, your fellow officer or somebody who observed this. So, I think, you know, that’s the temperament we all want to, you know, give our police. I think, given where we are living, I think we do recognize that we have police officers who are hugely dedicated to what they do, they sacrifice, and even their families are nervous now when they’re going out to work because they know that they’re targets, right?

Here, we have probably something that they’re going to view as, “We didn’t need it, we’re doing it anyway, and now do we expose ourselves to liability if we don’t do something? If we see something and act on it.” That’s what we want. But, you know, it could just be a little tension that could develop between different factions of the police force because somebody coming in three minutes after arrest might have missed what was happening. There might have been a knife, there might have been something, you know, said or done or threatened, you know? So some police officer walks in a little bit late in the action and says, “Hey, get off him.” “No, he just said he’s going to kill his wife, we’re not going to get off him.” So, it adds a little confusion to it, but ultimately, again, we’ve got reasonable minds, and that is what tends to work itself out. You know, what happened nationally, of course, these officers, they just blew it, this is our reaction to it. I think it’s a good reaction, but I don’t think we’re going to see much of a change in the way that we do business in Vermont.

Interviewer: We’re talking with Paul Harding with Martin, Harding & Mazzotti. If you have questions, they’ve got the answers, they can help you out. Reach out at 1800law1010.com