Christopher Klinge
‘The Madison police force uses force rarely. And that’s not how we’re typically defined.’ — Mike Koval
The dashcam video from a Madison police squad car shows officer Matt Kenny entering 1125 Williamson St. at 6:38 on the night of March 6.
In the seconds that follow, you can hear shouting and gunfire and then see Kenny stumbling backwards out the door, shooting into the doorway.
The Dane County district attorney cleared Kenny of criminal charges in shooting unarmed 19-year-old Tony Robinson seven times, killing him. And on Wednesday, the Madison Police Department found Kenny followed department procedure, clearing him for duty. But for Jerome Flowers, the significance of the seventh shot — fired while Kenny was outside of the apartment, into the house — is unambiguous.
“[Kenny] was out of the building, and he was shooting. “That’s clear as day excessive force,” says Flowers, a friend of Robinson’s family. “If that’s not excessive force, I don’t know what is. People can say what they want happened beforehand. But the last shot is undisputed unnecessary and excessive.”
‘What is it the department can do to reduce or eliminate the shootings of these unarmed youth?’ — David Couper
Flowers isn’t the only one scrutinizing how police use force here and around the country. The city’s distinguished former police chief, the reformer David Couper, has also questioned how Madison police officers use guns.
“Whatever happened to sticks? If Matt Kenny had run into that building with his baton and out comes Tony Robinson, wham, up into the solar plexus, it’s all over,” Couper says. “Maybe it’s not quite that simple. But all of [these options] have to be on the table.”
The Madison Police Department, Couper says, needs to take a hard look at its policies and procedures. “What is it the department can do to reduce or eliminate the shootings of these unarmed youth?” Couper asks. “And I’d add, mentally ill people, because they’re getting killed too.”
Madison police have killed a handful of people in the past few years. The killing of two unarmed young men — Paul Heenan in November 2012 and Tony Robinson in March — has caused the most alarm, coming at a time of a raging national debate over police tactics, especially as they are used against young minority men, like Robinson.
Police Chief Mike Koval — who considers Couper, his former chief, a mentor — says he’s always looking for ways the department can avoid deadly force. But he has no interest in changing the standards for when officers are allowed to use it.
“Then Madison would be the only city in the entire country that would be held to a different standard,” Koval says. “That’s imprudent.”
As officers are put into violent situations and are forced to make split-second decisions, “I don’t want them to hesitate wondering whether they are going to be held to a different standard than officers from a neighboring jurisdiction.”
It’s a stance that puts him at odds with many in the city. But Koval contends those people are concentrating on the wrong issues.
“Let’s not focus so much time and energy and attention on these legal templates,” Koval explains. “Let’s instead examine, if you will, what is the current state-of-the-art training for nonlethal force or what sort of other de-escalation or defusing techniques does the department use or could it acquire.”
“Invariably, that’s going to be infinitely more productive,” he adds. “If you hold yourself up to a different or higher standard [on deadly force], you might put the city at a greater sense of liability because you’re doing something no one else is being asked to do.”
When Russell Beckman went through the police academy in 1982, officers were taught to use their bullets sparingly. “When I first started we were issued revolvers,” says Beckman, a former Kenosha Police officer who became a whistleblower against his department and is now a Milwaukee schoolteacher. “Very few officers had automatic weapons. So we were taught to be judicious with the number of shots we fired, because reloading a revolver is very stressful when you’re under fire.”
The prevalence of semi-automatic weapons changed all that. “You can empty a magazine in less than two seconds,” says Beckman. “That’s why so many officers fire so many rounds at these shooting scenes.”
How officers are trained to use their guns has also changed over the past 50 years. At one time, officers were allowed to shoot and kill suspects fleeing from even nonviolent crimes. Police were also once instructed to fire warning shots.
In the early ’70s, the accepted practice was to fire once at dangerous suspects and assess the situation. By the end of that decade, the training was to fire two quick shots, then reevaluate. Now the accepted practice is to shoot until the threat is stopped.
This is another reason officers often fire numerous rounds at suspects.
“We’ve had people who for all intents and purposes could be on the verge of collapsing clinically and succumbing to their injuries but they still have that adrenaline push or combination of motivation to continue advancing and do some harm, even though we know in the next so many seconds they will ultimately be dying,” says Koval, who notes he does understand why civilians might be confused or disturbed that so many shots are needed to subdue an unarmed person.
Michael Scott — a former Madison officer who is director of the Center for Problem-Oriented Policing — says that shootings are vastly different from those portrayed in TV and film.
“When a human being is hit with a bullet, unless they’re hit in a very few certain places, they’re not going to drop instantly,” he says. “It’s not very easy to tell when a bullet has even hit someone. It’s not like TV when they go flying back 10 feet and blood is all over the place.”
Nevertheless, Scott finds “almost no justification for shooting an unarmed person.”
“There are few instances when a completely unarmed person is going to cause imminent death or great bodily harm to a police officer,” he says. One exception is when the suspect is struggling for an officer’s gun.
Scott says that when he went through the MPD academy in the early ’80s, recruits were trained to avoid violent confrontations, to always back off and wait for backup.
But that began to change after April 20, 1999, when Eric Harris and Dylan Klebold murdered 12 students and one teacher at Columbine High School.
“The police in Colorado responded on the basis of training they’d always had, that the approach was to establish a perimeter at a safe distance, buy time and bring hostage negotiators and a SWAT team,” Scott says. “During that time while they were waiting the two students were killing other students. So there was a rethinking of how police should respond to active shooters.”
“The shift was to train officers to get as close to the shooters and disarm them as quickly as possible, knowing this was an increased risk for police officers,” adds Scott, who sees this strategy at play in some of the recent Madison killings.
But this approach can escalate traditional conflicts — that aren’t like Columbine — causing more harm than good. The trouble is, police often have no idea what situation they’re confronting. “It’s difficult to know if you’re dealing with a ‘Columbine’ where someone is actively hurting people or whether it’s a burglary in progress.”
Madison police officers are issued semi-automatic 9mm Glock handguns with clips that hold 17 bullets, with another bullet in the gun’s chamber. They’re allowed to carry extra clips but not ones that hold more than 17 bullets. Madison officers can also opt to carry handguns that shoot higher caliber bullets (which have a larger diameter), up to a .45 caliber weapon. They can also carry a second handgun. Use of deadly force is authorized, Koval says, when an officer believes there is an “imminent threat of death or great bodily harm, against yourself or another person.”
Officers are trained to fire into center mass — i.e. the upper torso — of a person. Aiming at less vital limbs is not accepted practice in the United States. Some other countries do train police to shoot in these areas, says Sgt. Timothy Patton, who is part of MPD’s personnel and training team.
The reason for shooting center-mass, Koval says, is that if an officer has decided he or she needs to use deadly force, this will be the easiest place to hit.
“Where is the threat most likely to be stopped, when you’re under stress and someone is attacking you and they may have a knife or a gun?” he says. “It obviously stands to reason that your upper thoracic chest cavity is a bigger, more acquirable target then me trying to shoot the knife or pen out of your hand.”
But Couper does not believe shooting center-mass is always necessary, especially when police are tangling with unarmed suspects. “If you’re close, why can’t you pump a round into somebody’s thigh?” he says. “Then put a tourniquet on it and you save a life. That’s not on the table. But that’s got to be on the table.”
Couper also notes that few women officers — who might have more cause to use a gun in a fight — are involved in shootings. “To what extent is this mano a mano stuff, is this just testosterone kicking in here, I’ve got to stand my ground, I’m not going to back up for anybody?”
Koval still respects his old chief, saying of his criticism “I ascribe nothing but the best of intentions in terms of what he’s trying to accomplish,” he says. “I never would have been drawn to this profession had I not seen something uniquely different in the template he crafted for Madison. He’s a pioneering spirit, and I can’t thank him enough for that.”
Nevertheless, he calls some of Couper’s ideas out of touch with today’s realities. “He’s been out of the game for over 20 years,” says Koval, noting that gangs, drugs and poverty have all become bigger problems. “The Madison he left is far different from the Madison that I see now.”
Couper counters that the world was more dangerous when he was police chief, with much higher rates of violent crime. Statistics from the Federal Bureau of Investigation support Couper on this point, showing that violent crime nationally has dropped by almost half from 1993, when Couper retired, to 2012. Rates of murder, aggravated assault, forcible rape and robbery have all declined in the past two decades.
One of the first classes Madison Police Academy recruits take is taught by none other than Chief Koval, who gives an overview of constitutional law.
Koval still teaches the class because “it’s very important to me that they hear that constitutional values, ethics and community policing are not something I’ve delegated; it’s something I’ve embraced.”
He begins teaching the limits of police power. He doesn’t want his officers seeing themselves primarily as agents of the district attorney, out to fill jails with bad guys. “As a constitutional officer, you’re there every bit as much to protect the rights of the innocent as well as to find incriminating information,” he says.
He spends time going over the First Amendment (right to free speech and assembly), Fourth (prohibiting unreasonable searches and seizures), Fifth and Sixth (which include due process rights and rights to a jury trial).
Time is also spent addressing the case law on police use of force.
The current thinking about how police officers can use force was established in a series of cases in the 1980s. In 1985’s Tennessee v. Garner, the Supreme Court ruled that officers cannot shoot at fleeing suspects unless they believe them to be a significant threat for causing someone death or great bodily injury.
With 1989’s Graham v. Connor, the Supreme Court ruled that all claims of excessive force by law enforcement had to be evaluated using an “objective reasonableness” standard.
“We all tend to think of use of force as right or wrong,” explains Michael Benza, a senior law instructor at Case Western Reserve in Cleveland. “That’s not really the question [courts address]. The real question is ‘was it reasonable for the officer to believe it was necessary to use force?’”
But Benza adds, “The constitutional standard is the minimum. We can always impose greater standards on the officers and say ‘you can’t just do the minimum.’ We can impose a higher standard on our officers.”
The courts give police the benefit of the doubt, he adds. “Nobody wants to be the judge that tells police officers you can’t use force in [a certain] situation, and an officer ends up dead.”
Koval says Graham v. Connor recognizes that officers are put in dangerous situations. “The calculus of what’s objectively reasonable must allow for the fact that officers are forced to make split-second decisions,” he says. “So we have to look at whether the actions of an officer were reasonable enough.”
But Michael Bell, whose son was killed by police in Kenosha, feels this standard has been too liberally interpreted by police. Since his son’s 2004 killing, Bell has called for reforms and lobbied for the 2014 state law that requires independent investigations whenever officers kill someone.
“I feel the use of force right now, the bar is set too low. All an officer has to do is say I feared for my life and that was it,” he says. “You can have people walking at you with a gun or throwing a rock at you. I felt threatened so I used deadly force.”
Koval reiterates that he wants officers to avoid using force at all cost. “Where I think the greater impetus should be in the law and training, is what reasonable efforts could be taken to avoid going to lethal force altogether,” he says. “Have we exhausted all other options? Have we retreated? Have we looked for cover? Can we engage at another time?”
The call to police is from a woman, Sara, saying her boyfriend is threatening to kill himself. She says he has a history of suicide attempts and that his 12-year-old son, Kipp, lives with him at 6910 Mill Bluff Drive.
When the officer arrives on the scene, he enters an open door and walks up some stairs to a living room, where he finds a distraught John talking on the phone. A bottle of whiskey sits next to him. There is no sign of Kipp. When John sees the officer, he puts a handgun underneath his own chin and threatens to pull the trigger.
What should the officer do? Retreat and wait for backup? But what if Kipp is in the home? Use a Taser? Approach closer?
This is not real, but a training scenario that recruits are put through in Madison Police Academy’s video simulation room. John is an actor projected in a video on a wall. Recruits who go through it are armed with a laser Glock and Taser. Based on what the recruits say or do, a trainer at a nearby computer takes him or her through various outcomes.
In one outcome, John shoots himself in the head, splattering blood on the wall. In another, John points his gun at the officer and advances, firing after five seconds. In a third, he puts the gun down, surrendering.
The department has about 500 of these simulations, each underscoring how stressful the job is. Sgt. Timothy Patton, who is part of MPD’s personnel and training team, says the goal is not to teach recruits when to fire their weapons.
“If you’re doing a good job talking to somebody, calming them down, avoiding escalating the situation, the instructor has the ability to change the subject behavior to give you credit for the successful communication,” Patton says. “We need to make sure we’re not getting officers to jump to the ending and assume it will come down to a shoot/don’t shoot scenario. Because most calls do not.”
Also in the academy, recruits will be put through physical simulations, where they’ll react to officers playing roles. In one simulation, officers are sent into a prop apartment, only to be startled by a trainer wearing a red suit who yells “boo.” The tactic is to gauge responses. Some flee the room, others pounce on the trainer.
“People tend to break up into three stress modes: fight, run or freeze,” Patton explains. “That’s innate, wired into us. We need to know the response people have under stress.”
Some recruits might need to be pushed into action; others might need to be pulled back.
Much of the training focuses simply on how to communicate with people. “We tend to focus the majority of our conversations in the city and nationally on the intervention, what happens at [violent] contact, what could we do differently at contact?” Patton says. “The greatest opportunity for improvement most likely comes in prior to contact. Generally speaking the goal is always to gain compliance with presence and dialogue.”
“The number one thing we’re looking for when we hire people is relational skills, the ability to talk to people, listen to people and evaluate people to get them help in the state they’re in,” he adds. “The goal is always to avoid utilizing force.”
Still, recruits are trained in how to use force of all kinds, running the gamut from compliance holds on people who are passively resisting orders, up through self-defense, strikes and kicks, and on to the use of batons, Tasers and deadly force with a gun.
The department has shifted away from teaching a “use-of-force continuum,” Patton says, because it is misleading. When Patton went through the MPD Academy in 2002, he remembers worrying that he might not be able to keep the appropriate levels straight. What was the appropriate reaction for each and every varied behavior he might encounter on the beat?
In fact, there is no one appropriate way to respond to any behavior or situation, but many, he says. “Any of these [techniques] could be used at any time as long as they’re found to be objectively reasonable.”
The department trains recruits to de-escalate situations in several ways, Patton says. One method is through preparation, taking a moment to consider the possibilities when dispatched to a call.
Trainers also teach recruits to be judicious about when they engage people. Many violent confrontations come after police have been chasing a suspect, when both are likely to have their adrenaline pumping and be less rational. So the department teaches officers to surveil rather than to capture, Patton says.
“If I’m chasing you and running through areas I might not be familiar with, what’s going to happen at the end of that pursuit, when you and I come into contact?” he says. “My options are starting to be diminished. By the mere fact that I’m alone, fatigued, I might be experiencing tunnel vision and auditory exclusion. I may not know where I’m at. And so it’s going to be difficult to get my colleagues to me.”
“You and I end up alone in an alley, and I don’t know where I’m at, so we start to escalate a situation as opposed to de-escalate,” he says. “So we teach you to follow, get good information and keep eyes on the situation.”
Koval understands why people are focusing on the deadly encounters police are involved in, but says these are extremely rare events, with more than 97% of the calls Madison police respond to ending without any physical confrontation.
He’s been defiantly pushing back against those portraying his department as trigger-happy. “My resentment lies with those who know nothing about what we’ve done and continue to do and yet are quick to point fault at the MPD,” Koval says.
And while Koval says he welcomes transparency and ideas for improvement, he also suggests that the real problem is that people don’t understand what the department does. Asked what he hopes comes out of a review of department practices, Koval says: “When there’s a greater familiarity with what exactly is being trained, there will be a better and healthier understanding that the Madison police force uses force rarely. And that’s not how we’re typically defined.”
Couper finds some of Koval’s rhetoric disappointing, albeit understandable. Police tend to circle the wagons and resist scrutiny and change.
“Police culture is so overwhelming. If you feel like you’re being put upon by outsiders, you tend to hunker in,” Couper says. “[Koval has] been under a lot of pressure for a first-year chief, no doubt about it. But you need to listen to people outside your agency. Sometimes you’ve got to hear the uncomfortable messages.”
Scott was a finalist for the Madison police chief job that Koval was given a little over a year ago. So he declines to comment on whether the MPD command staff is being overly defensive or resistant to change.
But he says that police nationally have been evolving and responding to cries for change. When the Supreme Court ruled in 1985 that police could no longer shoot fleeing suspects, numerous departments around the country had already forbidden this practice. In the past decade, police have also begun training to counter inherent biases.
He sees departments beginning to make changes on how it uses force.
“Police have made dramatic changes in how they use deadly force in the past,” he says. “They’ve changed tactics, training, policies, weaponry, legal justification,” he says. “Some of that has been pressed from the outside, ordered by courts. But a good deal has happened from the police themselves. I sense that police in this current climate are willing to change. I see it happening.”
