Creating new discretion for police to use deescalation methods

An excellent and necessary bill that's so far flown under the radar needs a quick referral and vote if it's going to pass this year. HB 3824, filed on the next to last day of bill filing by state Rep. Toni Rose, alters antiquated language about Texas law enforcement duties which has been in place in Texas since the days of the Republic (when there were far fewer laws, and lawmen).

The legislation changes a couple of "shall" arrests to "mays," making Texas law more amenable to officers implementing deescalation strategies in the field. If the law says the officer "shall" arrest the kid who stole a candy bar from the corner store, for example, then what choice did she have but to chase him into traffic?

In real life, officers exercise this sort of discretion every day. Why not codify what's already reality instead of pretending that officers can even know about, much less enforce, all the minor crimes sprinkled everywhere through Texas statutes. Police officers don't use the full force of arrest to punish every minor breach of the peace. Not only don't they do that, no one thinks they should. So the law shouldn't mandate an absurdity just because somebody wrote it that way before the Civil War. A lot's changed since then.

RELATED: Thompson seeks upgrades on police use of force, disciplinary process.

Cop talk: Eight hours of verbal de-escalation training

I figured I’d be the only one in the class who doesn’t have to carry a gun – and potentially use it – to do my job.

Almost everyone taking a recent eight-hour verbal de-escalation training class in San Antonio was a commissioned peace officer. Most of the pupils were men; a handful were in plainclothes, about 15 donning beige Texas Department of Public Safety uniforms and roughly 10 more wearing other law enforcement uniforms or department shirts.


I took a seat near the beverage station and a heaping tray of donuts, next to a couple of administrative assistants who said they’d been “voluntold” to attend.

I was there to learn firsthand what law enforcement learn about de-escalation. The topic comes up often in my reporting for Point of Impact, a yearlong series investigating officer-involved shootings of unarmed people in Texas.

It was easy enough to sign up for the class online, but in a world where the media has been blamed for inciting violence against law enforcement and is often criticized for its coverage of police shootings, I expected some might be displeased I was there.

I’d hoped to be inconspicuous and left my home in Austin two hours early. San Antonio’s traffic crushed that hope, exposing the belated entrance of the lone journalist into a room full of officers.

Bob Christy, a regional training director for the Texas Police Association, trudged over with the attendance list and a course packet. I signed in next to my name and affiliation – UT Austin, where I’m a graduate student – and tried to disappear into my desk chair.

Despite having the least amount of experience with the use-of-force continuum, I found myself immediately more engaged than many of my classmates. The instructor even had to ask one man to put away his cellphone for a little bit.

During the first of many breaks – officers can only tolerate an hour of sitting still at a time, I learned – the instructor, J. Mark Warren, told me it’s common for officers to discount the importance of the course at the start, but ensured their enthusiasm would grow.

I introduced myself as a journalist to Warren, explaining that I’d paid the $70 non-TPA-member fee and then braced for the expected request to leave.

But he was happy to have me there. I took a deep breath and settled in to learn how law enforcement can use words and body language to diffuse a situation. A 19-year veteran of DPS’ training academy, Warren spent more than a dozen years teaching a communications course called “Verbal Judo.”

Everything a police officer does involves communication, and Warren is a die-hard believer that good policing requires good communication skills.

Repeatedly throughout the day, Warren reiterated that the course material wasn’t applicable in violent encounters - "You know how to deal with those," he said. Instead, the methods apply to the 90 percent of contacts who aren't violent.

We learned how to better communicate with people who are compliant but might "fail the attitude test," which Warren said legally does not justify escalation. We also learned how different types of people react to stressful situations, and what might work best in interactions with each personality.

Warren taught us tips to identify a person's ego state - parent, adult or child – so we could best communicate with them, and we practiced those skills in pairs. Ideal is the adult state, the only frame of mind in which individuals are capable of making independent, unbiased decisions. Parent ego states are authoritarian and lead to conflict and child states are selfish and short-sighted.

During one exercise, Warren instructed students to face another student and stand casually with our hands on our hips. "Easy," I thought, looking around only to realize it’s impossible for a trooper wearing his duty belt to look casual with one hand on his hip holster.

The point was the importance of body language: “Even if you’re just trying to be casual, you’re going to come across as defensive,” Warren later explained.

Sure enough, my fellow classmates did become engaged, interested and took notes, even when Warren mentioned the Police Executive Research Forum, whose recommendations on de-escalation have been met with mixed reviews from some in law enforcement.

One point of contention among the law enforcement community is with a staple of PERF’s 30 guiding principles on use of force. The agency would like to retire the “21-foot rule,” a practice that permits officers to shoot someone armed with an edged weapon who gets too close, because PERF says the rule sometimes wrongly justifies shootings. Warren disagrees.

But he supports another PERF guideline – that de-escalation training should be a core theme of an agency's training program. At least at DPS, the methods are now a core theme of one day in the classroom.

That wasn’t the case before July 2015, when a DPS trooper stopped Sandra Bland for a traffic violation. She was arrested and died in a Waller County jail cell three days later. The trooper responsible was indicted and fired from DPS, and Bland’s relatives sued him and others for her death.

When the case settled for $1.9 million in September, it was reported that de-escalation would now be required for all troopers in the field. DPS said at the time that the class was already required.

Warren’s timeline backs that up: He was tapped by TPA to teach the course starting last December, and has since trained about 700 officers, most of whom were DPS troopers and leadership. At my training, a few plainclothes officers were DPS brass, Warren said, and one was another jurisdiction’s chief.

As someone who lacks the rest of the training that Texas law enforcement receives, I felt unworthy of the completion certificate. It’s impossible to master, after one day, how to verbally communicate with a myriad of people who react in a variety of ways under stress.

DPS has also said that new officers will start to receive verbal de-escalation training in the academy. But aren’t the new officers too busy cramming for the state exam to study verbal communication, which isn’t tested?

Maybe at this point, the emphasis on verbal de-escalation is more of a symbolic first step.

“This is only the beginning,” Warren said. “History and current events being what they are, there’s never been a value on verbal de-escalation like there is now.”

DPS on de-escalation training: We already do that

Among the settlement terms leaked to the press in the Sandra Bland case this week was a statement that the Texas Department of Public Safety would provide de-escalation training for current and future troopers.

The Houston Chronicle reported that Waller County agreed to the terms, including shelling out $1.8 million, on Wednesday. In an emailed press release, Waller County Judge Trey Duhon said the county will be "increasing the training and education of jail employees in respect to mental health assessments in jail and improving our policies and processes."

Another $100,000 is said to be forthcoming from the Texas Department of Public Safety, although spokesman Tom Vinger says that DPS hasn't settled and is not a party to any agreements between the plaintiffs and Waller County.

Technically, DPS isn't a party, since the lawsuit named Trooper Brian Encinia, who was terminated earlier this year and faces a perjury charge. So how could they be responsible for any settlement terms?

Cannon Lambert, Geneva Reed-Veal's lead attorney, said DPS will be paying Encinia's piece of the settlement, and in a phone call, said the training agreement was true despite DPS' statement. "It's just one of the things that Ms. Geneva was very interested to see happen. Obviously she knows she can't get Sandy back, but there are things she can impact going forward," Lambert said. He said DPS agreed to implementing deescalation training taught by a third-party both in the field and for new recruits.

"We understood that it would be done very soon," Lambert said, adding that better deescalation tactics would have kept Bland out of the Waller County Jail, where she later died.

But according to Vinger, new recruits already get training on deescalation. He also said that "earlier this year," DPS began requiring troopers to complete an 8-hour deescalation course - provided by the Texas Police Association, a third-party.

When told about DPS' comment, Lambert said, "That's not what they conveyed to us." He also said that the agreement was that DPS was willing to "look at the circumstances and change what they are doing." Lambert is pleased that deescalation training will be enhanced, saying, "I just wish they'd have done this a year and a half ago."

[From 9/18/16 Grits post: Policy folks seeking more background on deescalation training and policies should check out the Police Executive Research Forum's "Guiding Principles on Use of Force" (pdf, 136 pages).]

RELATED: From the Texas Tribune, "DPS changes in wake of Sandra Bland death in dispute."

Rethinking use of force: De-escalation

It's called different things – "de-escalation," "tactical disengagement," or "preservation of life" – but the message is the same: police departments across the country are retraining officers on the appropriate use of force.

Texas' basic peace officer course was last revised in 2014 and will be overhauled sooner than later. Currently, DPD deputy chief Jeff Cotner is leading a TCLE committee undertaking a yearlong review of the 643-hour course, flack Gretchen Grisby said. Your correspondent emailed Cotner to inquire as to whether de-escalation tactics are being considered in that review but didn't immediately hear back.

An August 2015 PERF report recommends the "overhaul of police training, policy, supervision and culture on use of force." While many high-profile shootings may have been legally justified, the report said, "there were missed opportunities" to calm things down before shots were fired. Instead of training officers on what they can legally do, PERF suggests officers receive training on what they should do. 

PERF surveyed 281 police agencies, which spent about 58 hours training on firearms, 49 hours on defensive tactics and eight hours on de-escalation and crisis intervention. Traditionally, officers are taught to use deadly force when it's justified, not necessarily to slow things down. Critics say the tactics are time-consuming when time is particularly of the essence.

Still, police in Dallas, New York City, Kansas City, Seattle and Los Angeles have recently added training on the subject. Excessive force complaints against DPD officers are on track to be the lowest this year in 20 years, a drop Chief David Brown attributes to de-escalation training.

Will Texas join them? Ranjana Natarajan, director of the Civil Rights Clinic at UT's law school, hopes so.

"Police departments still have a ways to go in terms of training officers to use only the amount of force necessary and not use force at all when it's not necessary," she said. "We have to go on improving use of force." 

Ed. note: Eva Ruth Moravec, the latest addition to Grits' mighty cadre of contributing writers, covered crime, courts and government for the San Antonio Express-News for six years, where she repeatedly impressed Grits with the quality and professionalism of her work.  She covered the 2015 Texas legislative session for the Associated Press. Her freelance writing has appeared in The Daily Beast, The Washington Post, and other outlets. She is currently attending grad school at UT Austin studying data-based journalism. Eva's a super-talented young gun who Grits feels blessed to add to the roster, which has grown damn impressive over the last couple of months, don't you think?