by Eve Oldenkamp, OCDLA President
From the Jan-Feb-Mar 2015 issue of The Oregon Defense Attorney.
The headlines have been rife with incidents of deadly force used by law enforcement after the Ferguson, Missouri, Michael Brown tragedy. Recently, a prosecution was instituted in the state of New Mexico against two officers who were involved in the slaying of a homeless man. This is rare. The Ferguson grand jury did not return an indictment. In Klamath Falls, a grand jury did not return an indictment against two officers involved in the fatal shooting of a man fleeing the scene of a robbery. The public seems empathetic to law enforcement violence, despite the contractual obligation of law enforcement to protect and serve, a societally-based contract wherein we trust them to maintain the peace, protect and serve, uphold our constitutional rights.
In contrast, the public outcry toward domestic violence within the National Football League has been strong, the sympathy expressed for the football players, low. Yet, we do not have a societal contract with the players; they have not sworn an oath to protect and serve. I propose that both responses should be modified.
Controlled by our greater understanding of neurology, both football players and police officers should receive empathy, and steps should be taken to change the causative force behind the violence exhibited by members of these groups.
And, both groups should be held responsible. Law enforcement should not get a walk simply because their job is “dangerous” and they are “afraid of everyone.” Such is not a valid self-defense argument in any state. Self-defense is based on a particularized fear of a particularized person based upon particular interactions with that person, not on a general fear of the public instilled by faulty training. Similarly, football players should be held accountable; their crimes should not be swept under the rug simply because they are famous, wealthy, iconic or essential to an NFL team.
Football and Violence
Ray Rice was fired by the Baltimore Ravens for a domestic violence incident involving his then fiancée, now wife, caught on an elevator videotape as he knocks her out. The research done by the news industry and the NFL found that domestic violence was “surprisingly common.” Surprising?
Here is another recent issue the NFL faced. Last June, in a lawsuit filed by retired NFL players in the United States’ District Court for the Eastern District of Pennsylvania, the NFL agree to set up a $675 million fund to assist in covering costs associated with diseases and illnesses linked to head trauma sustained by the players during their careers. The medical conclusion agreed to by the NFL in that settlement, though their numbers were five percent lower than the players’ experts calculated, was that due to a high rate of severe brain damage nearly one-third of retired NFL players are expected to develop long term cognitive problems at an earlier age than the general population.
Wow! How huge is that concession? So huge that it should open a very significant, proactive dialogue about domestic violence within the NFL. Closed head injury is injury to the brain that occurs without exhibiting significant outward evidence, e.g., a bruise, a bump or a cut. It is often indicated when somebody loses consciousness or temporarily blacks out or becomes disoriented. How many times, football fans, have we seen this happen to players?
Such closed head injuries frequently occur to the frontal cortex.
Further, we know that the most common effect of closed head injuries in the frontal cortex is the possibility of personality change.(1) By this we mean, of course, aggressive behaviors, incapacity to appreciate societal impute and other demonstrations of lack of emotional control.
There are also the coup contra-coup injuries, or injury occurring on the opposite side of the brain from the impact. This frequently occurs in coordination with a frontal lobe injury. Caused by deceleration that forces the brain to ricochet back from the initial force and impact on the stiff, sharp bone ridges on the inside of the skull, the impact results in focal lesions to the opposite side of the brain, leading to “pragmatic problems like impaired social judgment, reduced inhibition and poor comprehension of abstraction.”(2)
NFL players who face criminal charges present a unique opportunity for the defense bar to raise this neurological evidence in defense. It does not excuse the behavior; rather, it explains it and may lead to a Guilty Except for Insanity argument. More importantly, it opens a societal conversation about what tools should be made available to football players to ensure that solutions, not just punishments, attend to individuals whose very profession results in significant brain injury and concomitant societally unacceptable behaviors.
Law Enforcement Excessive Force
Looking into the environment within which these officers exist, one again finds a neuropsychological explanation for certain behavior. However, as with football players, we should not—as society so commonly does with law enforcement—allow a walk. Rather, charges should be brought and the officer’s circumstances considered during the trial. Again, perchance a Guilty Except for Insanity resolution, based upon a founded PTSD diagnosis, becomes relevant in an individual case. More importantly, the public must reevaluate current policies and be reminded of the nature of the societal contract we have entered with law enforcement.
Our Founding Fathers cautioned us with regard to law enforcement. The public needs to hear those warnings in light of recent changes to law enforcement training and behavior. Our Founding Fathers understood well the difference to be maintained between domestic law enforcement and the military, and common sense would agree. The military is trained to annihilate an enemy. The domestic police are there to keep the peace and to protect citizens’ rights under the state and federal constitutions. Law enforcement is “of the people, by the people and for the people.” They should be part of us, not against us.
Yet current events seem to show a different approach. We, as defense attorneys, can easily reach into the stories of past or current clients, often veterans or those from highly abusive families, and find the explanation for sudden aggressive behaviors in neuropsychology. We know that when our military personnel come back from combat zones many, even those who have not suffered personal injury, are on high alert, perhaps diagnosed with PTSD and in a state where they believe they are in constant danger and thus likely to respond quickly or violently to a perceived threat.
Similar things happen to clients. Our clients may also be suffering from PTSD due to families that were so volatile that the biological imperative of fight or flight kicks in before logic and common sense. What lends explanation—not justification, but explanation—for these two groups may also apply to law enforcement officers. If we train law enforcement similar to the military, as is happening with more and more regularity, and in a manner that causes them to expect at any moment to be shot or otherwise injured or killed, to see their end in every face they meet, are we not then creating a hyper vigilance likely to lead to unnecessarily violent reactions?
But, we should still prosecute them. We should still hold them accountable. In fact, their prosecution is critical to the long term survival of a civilized society. They are to be public servants first and foremost. They work for all of us. “Of the people, by the people and for the people.” From this perspective, when they react unreasonably, violate the rights of individuals whom they are sworn to protect and serve, and we do not institute the same societal consequences of a regular citizen, we fray the fabric of our societal contract.
I know I preach to the choir here, but I truly believe as defense attorneys we see things differently. We can reach out as the storytellers we are and wrap the lessons of the past, e.g., our Founding Fathers’ messages, with the knowledge of today, and move society to reach better justice than we have in the past. Football players are iconic heroes for many; they provide entertainment and sometimes suffer a cost, an oft irreparable physical cost. Law enforcement officers are public servants sworn to uphold our societal contract, yet we have dropped the proverbial ball and allowed them to be militarized, separated from us. They suffer a psychological cost. When individuals in either group falter, err, or commit crimes, society’s conscience and heart are damaged. Both should be held equally accountable for the error of their ways, both extended empathy, but neither let free of their societal responsibility. This is, again, especially true of law enforcement. We must ensure the public is not afraid to check the powers of the government to which we dedicate the preservation of our liberties.
1. Susan E. McPherson & Jeffrey L. Cummings, “The Neuropsychology of the Frontal Lobes in Disorders of Brain and Mind,” 11, 13, 19 (Maria A. Ron & Anthony S. David eds., 1998).
2. The Neuroscience on the Web Series: CMSD 636 Neuropathologies of Language and Cognition, CSU, Chico, Patrick McCaffrey, Ph.D.
OCDLA Board President Eve Oldenkamp practices law in Klamath Falls. She serves on the Drug Policy and Pay Parity committees.