Contempt Of Cop: Update 2

On July 31, I posted an article (here) about the behavior of Canton, OH police officer Daniel Harless during his arrest of a man legally carrying a concealed handgun. I also wrote about the thoughtless, off-topic anti-gun comments of the President of the Canton City Council, Allen Shulman. Mr. Schulman apparently continues to be concerned by issues other than those of the behavior of Officer Harless and the Canton Police Department. Here’s an example from the Canton Fox affiliate:

"Schulman told Fox 8, 'We've received hundreds of e-mails, all from out of town, not only out of town but out of state, Texas, Arizona, places that seem to love people carrying concealed weapons."

Schulman said the case illustrates the inherent dangers of Ohio's concealed weapon law, which he calls, 'crazy'.

'I believe in people's right to bear arms, but I believe in rational, reasonable gun laws, and these concealed weapons are going to create a lot of problems', said Schulman. 'And my biggest concern is, it's going to end up killing people.'"

As I noted in that article, I sent a link to the article to Mr. Schulman—an attorney—inviting him to respond and promising to print his unedited response. It's unsurprising that Mr. Schulman has not, as yet, responded. I will also send Mr. Schulman a link to this article, and the offer stands.

Many readers raised thoughtful, intelligent points and questions relating to the case, as our readers always do. I hope to address them to their satisfaction in this update to the original article. I hold out this hope as I now have information that was unavailable when I wrote the original. The focus of this article will be to provide readers with insight into the factors any police chief must consider in dealing with the kind of disciplinary issues presented by the behavior of an officer like Daniel Harless. As with much relating to police work, it's more complicated and difficult than many realize.

WHAT'S NEW:

One of the concerns of many readers was my reluctance to say without qualification that Off. Harless should be fired. I was unwilling to make that assertion because I did not have sufficient information about Off. Harless and his background. That lack of information has been rectified.

Go here, here and here for articles and another police dashcam video of Officer Harless on July 29, 2010. In that video, he has stopped a vehicle and finding a small pistol on the floorboard, behaves as he did in his confrontation with Mr. Bartlett. Among his angry, out of control comments were (NOTE: OBSCENE LANGUAGE WARNING):

"Don't fucking fart wrong."

"I'll send you to the fucking grave."

"I'll tell you what motherfucker; I'll shoot you in the face and I’ll go to sleep tonight."

These were not, by any means, his only similar comments, or even his most obscene or ill considered.

Apparently, the Canton PD was not aware of this earlier video as Chief Dean McKimm has said that both videos will be part of the investigation—already underway--into the behavior of Off. Harless precipitated by his encounter with Mr. Bartlett.

While there is information indicating that there have been a number of complaints lodged against Off. Harless in the past, there are no revealing details available about those complaints and what kind of discipline—if any—resulted apart from a reprimand for failing to activate a dashboard camera. The specifics of personnel actions are usually exempt from Freedom of Information laws.

ADMINISTRATIVE CONCERNS:

Police Chiefs must balance a great many considerations. They must uphold the regulations and procedures of their agency, and must also uphold and fairly and uniformly enforce the law. In disciplinary matters, they must be careful to see that the punishment fits the offense, and that similar punishment is given for similar offenses. Officers must be able to feel that when they are falsely accused, their agency will protect them, and that when they make mistakes, they will not be excessively punished or thrown to the wolves. On the other hand, the public must be able to have confidence in its police force and in its professionalism. If the public believes that officers may abuse their authority with impunity, there are many negative consequences for the police and the community, both immediate and cumulative.

Police chiefs must also deal with political issues and must be ready and able to fight off unfair or unwise political whims. And they often have to deal with unions. The Canton PD is apparently a union shop. Officers represented by unions are often able to get away with behaviors that would certainly result in discipline, even firing, in non-union agencies.

They must see that internal investigations are conducted impartially and fairly, and with calm professional deliberation. While they should never rush to judgment—politicians often want an immediate pound of flesh with attendant headlines—they should not unnecessarily delay internal investigations. It is not fair to the officers involved or the public and it tends to greatly harm morale. They must consider not only the short-term effects of their decisions, but the long-term effects as well.

THE HARLESS CASE:

Chief McKimm's comments have already indicated that Off. Harless violated a number of agency policies and procedures, but we do not know the specifics. There is also the possibility of violations of the law. As Off. Harless has worked for the Canton PD for 14 years, the Chief must consider negligent retention. In addition, Chief McKimm has suggested that Officer Mark Diels, the officer accompanying Off. Harless in the Bartlett video, will be investigated for failing to report the behavior of Off. Harless.

The Bartlett video alone clearly suggests that the behavior Off. Harless exhibited was not an anomaly. His rage, obscene and threatening language, and the fact that his anger did not, with time and the diminution of any potential threat, diminish combine to suggest that this is his common behavior. It's rather like anti-aircraft fire directed at fighter pilots. Tracer rounds are loaded only every 10th or 20th round in a belt or try of ammunition, so they see only a fraction of the rounds directed at them. The vehemence and lack of control Off. Harless exhibited clearly suggest that this was only a representative sample of his usual behavior. The 2010 video lends powerful support to this contention.

TOOLS: Police officers use a variety of tools in their daily work. It is important that they use them wisely and properly. Among these tools are:

(1) Apparent—as opposed to genuine—anger.
(2) Misrepresentations and lies.
(3) Real and implied threats.
(4) Use of harsh language.
(5) Bluffing.

Off. Harless is apparently unable or unwilling to use these tools properly and effectively. Misused, these tools can not only be dangerous, but can greatly diminish public respect for police authority. Considering that the police can function only because most of the public is willing to respect their authority at any given time, this is an issue that is never far from a professional police officer's mind.

(1) Anger: Police officers are expected to keep their emotions under control and to be in control of any situation. There are times when it might be wise to make a suspect think that an officer is angry, but this must be a carefully employed device, not an out of control emotion. Yes, police officers must be good actors. The officer must use apparent anger to achieve a desired outcome, he must never allow anger to override his judgment and ability to determine what a desired outcome should be.

(2) Misrepresentations and Lies: Generally speaking, it is best never to lie to a suspect or any member of the public. That doesn't mean that it might never be smart or justified to do that, but it must be used wisely and carefully. If a criminal catches a police officer in a lie, they've blown their credibility and the criminal knows they have nothing to fear from the officer. Police officers who lie to the public likewise run the risk of being discovered and of losing public support.

(3) Real and implied threats: Several readers—and others elsewhere in the blogosphere—have suggested that Off. Harless should be fired solely because of the threats he made to Mr. Bartlett (and now, others). Here it's important to consider not only department policy, but the letter of any applicable laws. Police officers deal with threats every day in many ways. They must determine if a reasonable person would believe that a given threat was a genuine threat of injury or death which the person making the threat had the means to act upon and the intention to carry it out, or whether it was just an idiot running his mouth. It is a good thing indeed that perhaps 95% of all threats fall into the latter category. While it's never nice to be threatened, even most victims, upon reflection, realize that they were never in any real danger and that the person making the threat has no intention of causing them harm in the future.

It is never smart—never—for a police officer to make threats. Professional officers might warn people of the specific possible consequences of their actions and might tell them that they'd prefer not to arrest them, but assure them that they will as a means of encouraging them to behave properly. However, professionals do not make angry, obscene, outlandish threats that no rational person would know that they could not carry out because most people understand that police officers just don't behave that way.

However, in this case, Mr. Bartlett, or any citizen, would have been justified in fearing for their safety at the hands of Off. Harless. How could they know that he would not carry out his threats? Citizens expect police officers to be calm and professional. When people behave as Off. Harless was behaving others tend to call the police, just in case. When the police are behaving that way, whom do you call?

It's interesting that the most credible, disturbing threat, and the threat that any police chief should take very seriously, was the threat to stop and arrest Mr. Bartlett—and tow his car—whenever Off. Harless saw him in the future. Off. Harless was essentially telling Mr. Bartlett that he would falsely arrest him whenever he saw him. Also implied is that other officers would do the same. Could Mr. Bartlett—or any citizen in Mr. Bartlett's position--reasonably believe that Off. Harless would act on that threat? Of course they could and should. Could they reasonably fear that Off. Harless might use the fact that they carry a concealed weapon as a future excuse to shoot them? There is no question about it.

(4) Use of harsh language: Police officers are not dainty flowers engaged in tea parties. They often deal with rough, crude people, people who use "to fornicate" as every part of speech, often in the same sentence. However, police officers also deal with people at every level of society. Smart officers rarely, if ever, use obscenities. It's just too easy to accidently slip into them at inappropriate times and places.

While it's possible that a carefully chosen obscenity might have a desired effect in highly specific circumstances, it's also possible that it might not. For people who do use "to fornicate" as every part of speech, a police officer trying to do the same is as likely to sound odd, out of place and clumsy as he is to seem like one of the f***in' boys. Use obscenities too much and too loudly, and they lose whatever positive effect they might have otherwise had. One might consider "motherf****r" to be the nuclear weapon of the obscenity arsenal. The most powerful weapon in one's arsenal should not be used first. If so, how do you deescalate? If it doesn't work, what's left? Calling someone a "poopy face?"

The other issue with obscenities is that they are generally indefensible, particularly when used with the frequency, vehemence, and crudity of Off. Harless. If a citizen complains how can such language be excused or defended? What tactical utility does it have? What legitimate police purpose does it serve?

Every contemporary police officer must behave as though everything they do will be witnessed. and recorded. I always taught my trainees to treat people as they would want any police officer to treat their mother or wife. Having to explain the kind of language used by Off. Harless on the witness stand before a jury is a losing proposition for any police officer. And if an officer is known to regularly use obscenities, it will be presumed that any complaint lodged against him relating to the use of obscenities is at the very least, plausible.

(5) Bluffing: This is closely aligned with lying and threats. It is best never to bluff, for when a criminal calls your bluff, your credibility and effectiveness are immediately shot. What would Off. Harless have done if Mr. Bartlett called his bluff, if he told him that if he felt he was justified to shoot him? Short of going completely berserk and doing just that, his bluff would have been called. He might have beat Mr. Bartlett, but more likely, he would have descended into screaming, spitting, impotent rage.

OTHER ISSUES: If we assume—and in this case, it would seem to be a reasonable assumption—that Off. Harless regularly behaves as he behaved on the two videotapes, why, in 14 years, has this behavior not been identified and corrected? Are his fellow officers aware of it? Of course they are. Off. Diels' behavior in the Bartlett video suggests that he was trying, as unobtrusively as possible, to calm Off. Harless down. Canny viewers will also notice that when Off. Harless began to go berserk on Mr. Bartlett, Off. Diels quickly intervened and handcuffed Mr. Bartlett, likely for his own protection against Off. Harless. Remember that Off. Diels is also being investigated for not telling superior officers about the behavior of Off. Harless.

Have Off. Harless' shift supervisors been completely unaware of his temper, of his lack of self control? Have they never seen even a hint of this kind of behavior? Again, we still do not know the details of the multiple past complaints lodged against Off. Harless, but surely his supervisors must have seen some disturbing behaviors in the past. If so, what, if anything, did they do? If they did nothing, can we reasonably assume that this kind of behavior is, if not accepted in the Canton Police Department, at least tolerated?

Did Off. Harless violate the law? It's likely. There is a real, not semantic, difference between an officer who, in good faith, makes a mistake, and an officer who, through negligence or malice, makes a false arrest. Would a reasonable officer faced with the circumstances of the Bartlett traffic stop have arrested Mr. Bartlett? No. They would have realized that under the circumstances, Mr. Bartlett did his best to comply with the concealed weapons law. Adding a charge of stopping on the roadway is what is know in police work as a "chickenshit ticket," a ticket that is barely—just barely—legitimate, but which no reasonable officer would write. Professionals don't arrest people—traffic tickets are arrests—who are doing their best to obey the law, and they certainly don't stack chickenshit charges.

If Off. Harless did make a false arrest, he also committed assault and battery. Taking a citizen falsely arrested into custody requires that the officer put his hands on him—battery—and restrain him, depriving him of his liberty. Not only would Off. Harless be potentially criminally liable, he can certainly be sued, and with him, his superior officers, and the City of Canton.

There is also the potential issue of steroid abuse. I have no direct knowledge of the use or abuse of steroids by anyone involved in this case, however, steroid rage is a commonly known phenomenon, and the behavior of Off. Harless is reminiscent of steroid rage. This possibility would be worth investigating.

FINAL THOUGHTS:

Off. Harless has accomplished something quite remarkable. With his two videos, he has essentially established the presumption that he is abusive and unprofessional to everyone he meets. These videos will follow him for the rest of his professional life and will often be used to impeach his character and on duty demeanor. He has convinced most reasonable people that when they meet him, they should expect him to abuse his power and to put them in fear of not only their safety but their very lives. Even in the You Tube age, this is quite an accomplishment.

It is this fact that will weigh most heavily on Chief McKimm. The lawsuit, which will certainly be filed against the Canton PD will allege, in part, negligent retention. It will allege that the Canton PD knew or should have known that Off. Harless was abusive and dangerous, that his future abuse of citizens was entirely foreseeable, yet he was not fired. The personnel file of Off. Harless will be opened, and these videos—potentially others—will be played.

Chief McKimm will surely have to confront the reality that in the future, it will be virtually impossible to defend Off. Harless against clearly bogus charges of abusive behavior and false arrest. He will have to confront the reality that he and his subordinates should have known about Off. Harless and should have either corrected his behavior sometime within the previous 14 years or fired him. Even if Chief McKimm could care less about such behavior, Off. Harless has made this case so public and volatile that he cannot be ignored. Even with the understanding that firing Off. Harless will appear to be an admission of guilt in the civil case that is sure to come, Chief McKimm will have no choice. Retaining Off. Harless is simply too dangerous in many ways.

Knowing only what we now know about Off. Harless, it is apparent that he should not be working as a police officer and that he must be fired. Even with union protection to consider there is no other rational choice. In a professional agency, those who should have known about Off. Harless, and those who did but chose to do nothing, should also face discipline. Whether this occurs will tell the citizens of Canton, Ohio a great deal about their police department and about their elected city officials.

Officer Harless has significantly wounded the respect of the public for American police officers, and has been allowed to do so by his employers, one of whom seems far more interested in denying Americans their Second Amendment rights than in dealing with the issue at hand.