Transcript 0:00 Welcome back to another episode here on the Iron Sights podcast, After Dark. Phil Downs is a partner at Chalakian Associates. 0:06 Phil is a former US Marine infantry platoon commander, and has a background in civil defense litigation. 0:11 This includes federal trial experience across various practice areas to include defense of public entities and public entity employees against both state and federal causes of action. 0:21 He primarily defends police officers and municipalities against the allegations of civil rights violations. 0:27 When Phil's first opportunity to defend police officers arrived, what caught him off guard most was how poorly written the police reports were by the clients he was charged to defend. 0:36 What he discovered was how much both officers and their leadership didn't know. 0:39 Specifically, despite being morally correct in their actions, they were wildly deficient in articulating the constitutionally relevant points to justify themselves in the face of personal and professional prosecution. 0:51 This conversation goes way beyond report writing, though. 0:53 It digs deep into the nuance associated with use of force, the Fourth and Fourteenth Amendments, the non-uniformity that exists in our judiciary system, the language of the law that is often misunderstood and misinterpreted, and how and why all of this shows up on the streets of our neighborhoods and in our courtrooms across the country. 1:11 So I guess here's the bottom line. This is a conversation for everyone, and Phil provides a bit of a roadmap to improve both your knowledge and your application of your constitutional rights and responsibilities. 1:21 Share it with your friends and the people that are important to you. So without further ado, please enjoy this After Dark episode with Phil Downs here on the Iron Sights podcast. 1:31 If you've been listening to the show, you've heard me talk about BioPro Plus. It's a non-synthetic alternative to prescription HGH hormone treatments. 1:38 I get to basically experience the benefits of my own natural HGH, and I don't have to worry about any needles, any doctor appointments, or any weird side effects. 1:46 The best part about this was is it started working super fast for me. I'm talking days, not weeks, and it's 100% safe. So the process to get BioPro Plus was super easy. 1:55 I just ordered a 30-day supply of a nighttime and a daytime formula, or morning formula. 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[rock music] Welcome to Iron Sights After Dark. 2:44 During my 25-plus years in the fitness industry, I've always been passionate about expanding my physical, mental, and hard skills to be prepared for whatever life might throw at me. 2:54 From fitness to firearms and beyond, taking a holistic approach to being prepared has led me on a journey to seek and share both knowledge and skills from expert resources in the civilian, LEO, military, and first responder communities. 3:08 The mission of this podcast is to help others expand their capabilities and knowledge of preparedness while building strength in the community that shares similar goals and values. 3:16 So ultimately, we contribute together and grow together. [rock music] Here we go. 3:34 Welcome back to the Iron Sights podcast. My guest today is Phil Downs. Phil, welcome to the show, man. Thanks for having me on. I'm stoked to be here. It's early. It is. 3:43 It's, it's 7:30 in the morning or something like that at this point. We're at the last day of the, uh, CALFIA, which is the California Force Instructors Association conference. 3:54 Uh, I've been here for a couple of days, had some amazing interviews, had some amazing experiences. 3:59 Learned a lot, uh, and, uh, Joshua Coleman, who's VP of this thing, put me together with you a couple months back, or maybe a month ago now, and said, "Hey, man, this guy's coming in. You need to talk to him. 4:12 Um, he's got some really interesting stuff to share." And the cool thing about this is I've actually never had an attorney on the show. No. So let's, letting the cat out of the bag a little bit. 4:21 Specifically one that does what you do. So, and I'm gonna let you talk all about that, but- Sure... there's some, definitely some roads I wanna go down here. 4:28 And so to give people listening to this that, that may have never heard us before, that know you and are listening to hear you speak, I'm not a cop, don't have any law enforcement experience. 4:38 I'm a, I'm a, I'm an idiot, right? Like, I'm a gym guy, fitness industry guy. I'm a brick-and-mortar business owner in San Jose, California, so this is sort of local to me. 4:47 We're, we're in Napa, which is like an hour and a half, half away. And I got into this just to learn... I, it started as a journey for me, um, kind of recognizing some deficiencies in, 5:00 in the training world really, 'cause that's where I come from. 5:02 Like, I was watching s- I was watching these classes, I was attending, like, firearms training classes or, um, jujitsu or medical training and things from a... 5:11 I was kind of inspired to do that, 'cause my business was shut down in 2020 with COVID, and I recognized there's some weird stuff that is going on in the world. 5:20 I wasn't, uh, uh, like, naive to any of what could be possible, but I started to recognize some things. I'm like, if, in myself I'm like, "I'm not prepared for some of these things probably. 5:29 I'm not as skilled as I think I am." Mm. Right? "So I'm gonna, I'm gonna check some stuff out." And as I did that, I got, I got, 5:37 I got this perspective that kinda rocked my world, like, 'cause I was, ended up training around a lot of law enforcement officers. 5:44 And I was seeing things happening on the street where I lived in my neighborhood and my business, and they were impacting me, and I was having to have police interactions. 5:53 And things were happening that were disturbing me, and that is, "Dude, why isn't that guy going to jail right now?" Mm. Right? Pr- especially- Mm-hmm... here in California. Yeah. 6:00 Like, he just broke into my business- Yeah... or he just lit that garbage can on fire and whatever. 6:06 And what I found was, um- The f- the officers I was dealing with were not good at articulating the things that I was asking them, and that was shocking to me at, at the same time. 6:16 So I was kind of seeing this, there's a skills piece- Mm-hmm... that maybe there's some deficiencies in, and that kinda blew my mind a little bit, 'cause I have an expectation as a citizen, right? 6:26 That if I call the police, certain things are gonna happen. Yeah. Right? Certain things won't happen. But they were happening when they weren't supposed to, and not happening [laughs] when I thought- Right... 6:36 they were supposed to, and again, that's my expectation. 6:39 But the same time, like when I, when I wanted to understand the reasons why certain things were happening, I wasn't getting very good answers, and I felt like I was being gaslighted, you know, at the same time. 6:49 And again, that's, that's an internal thing. That's a me thing. But what I learned was is that the- they really had... there's some confusion there. 6:56 There's some hesitation there, and you're part of that, I think, kind of what happens when our, our law enforcement doesn't know the right things to do. Mm-hmm. 7:07 They may not be trained correctly, and they're not prepared for what happens when an incident happens, and then they wind up in a situation when they're under, like an internal affairs investigation, or they're... 7:18 They wind up in front of a DA. They're being- Mm... opposed, and ultimately maybe wind up in court. And so that's my kind of intro to this. Sure. 7:27 'Cause I think you're gonna be able to give us a lot of perspective on, on, on a few things, and so that's it for me. Yeah. I wanna hear about you. Okay. 7:35 And, uh, catch me up, man, 'cause again, I don't have a ton of intel on you. Yeah. So I'd just love to hear a little bit about your background and how you wound up where you are and what you're doing here this week. 7:43 Cool. Well, I, like I said, thanks for having me- Yep... this morning. I, uh, to make you feel better, I'm also not a cop. Mm-hmm. 7:50 Um, I defend police officers as, as part of my law practice, so I'm a, I'm a partner at a law firm called Chalakian and Associates. We're, we're a small, uh, 10-lawyer firm. Here in California. In San Francisco, yeah. 8:03 And, uh, we defend public and private entities, and individuals also, uh, w- might be public employees, some people just in their private capacity, uh, when they are sued for, what's the best way to put this, 8:21 things that happen or that are, they are accused of doing that result in some sort of catastrophic personal injury. And so our defense work, uh, comes through when, when people need help. They have insurance. 8:35 So I'm sure, like, you probably knew a lot of business owners that had property damage claims that they had to- Mm-hmm... to bring, and no, really no one to bring it against, right? Exactly. Because you can't... 8:48 And, and even if you did find those people who torched things and smashed things, they don't have- They, they have nothing... assets and money- Right. Yeah... and, you know, all that. So- Ask me how I know. Yeah. 8:56 [laughs] Right. Right. Well, you know, 2020 was like a, uh, it was kinda like a really scary... Luckily, it was mostly brief- Yep... but still very scary look into what societal decay looks like. 9:11 Um, I got into becoming a lawyer because I had a GI Bill that I needed to use, or I felt obligated that I had to use it, um, so I wasn't a bum. [laughs] You know? And it was a choice between, uh... 9:27 I took, at the same time I took the LSAT, which is like the, the fricking test you gotta sit for to... And I got exactly average, right? Okay. I'm like, I'm exactly the Idiocracy guy- [laughs] Okay... 9:37 right, on my LSAT score. Um, the, uh, I took like the GRE or whatever, 'cause I was like, "Well, maybe I'll, maybe I'll just be a history teacher. I'll get my master's in history." Okay. 9:48 And then I was like, "I don't know." Trying to figure it out. Yeah, I was like, "May- maybe, maybe lawyering is, like, better financially or," and, you know. 9:53 So I ended up doing that without knowing anything about, hey, there's this thing called civil defense. 9:58 Hey, there's a, there's a whole area of law where you defend police officers when they're, it's alleged that they violated the Constitution. Like, I had no visibility of that. 10:06 I did law school part-time at night, went to night school. Uh, started all the big life events after getting out of the Marines. Okay. So got married, had kids, bought a house, 10:17 uh, had graduated law school, took the bar, passed it, had no job. [laughs] Right? [laughs] It- And then, yeah, I've a- I've arrived. Yeah. Right? Yeah. Yeah. 10:27 And it's like, congratulations, you now have, uh, you have your JD. All this debt. Yeah, yeah. [laughs] Yeah, there's ESQ after your name. You got a mortgage. Yeah. Mortgage. 10:34 [laughs] You have 10 cents in your checking account, and you have, like, you know. You're ready to get started. You're ready for the future. You're ready to actually get started, yeah. No stress. And, um, 10:43 so my, my dad, uh, who is a r- he's a retired, uh, police officer. Okay. Uh, he was a sergeant in, uh, San Francisco, and my, my little brother currently is a, is a cop in c- in the city also. 10:57 Anyhow, he, he happens to run into one of his old academy classmates at a, um, Catholic Charities fundraiser in the city and, and this guy happened to be a partner at his own firm. He had his own- Okay... spot. 11:10 And my dad was just like, "Hey, do you think you can- Oh, gotcha... could my son call you?" Mm-hmm. Right? And so I interviewed with the guy, and I was... He goes, "Do you know what it is that I do?" 11:20 And his name's Dale Allen. Uh, he's still practicing, and he's one of the, one of the main, uh, especially the old breed of the attorneys that defend cops. Yeah. Um, and I said, "No, I have no idea. 11:33 I'm, I'm r- I've been applying everywhere to try to find a job." Yeah. Take anything I can get at this point. Oh, my God. Yeah. [laughs] And, uh, and he goes, "Well, this is what n- Section 1983 defense looks like. 11:43 It's 42 USC n- Section 1983." That's the statute that people use to sue public entities and their- Okay... employees for constitutional violations. Anyhow, that's how I started. And I got thrown right into, uh... 11:56 It's, it's mostly in federal court. I got thrown right into, uh, into trials and learned this practice area. And then through that, at the time, uh- 12:10 Dale, uh, was, had a bunch of Napa County cases. So the risk manager was, was how Dale got that referred business. He'd been trying to get it for years, and he got it. He had this book of business. 12:23 And he goes, "I want you to help me with these Napa cases." So overnight, I meet guys like Kenny Van Dyke, and Chet Schneider, and J- Josh Coleman, and Dan Lehow, and a bunch of other guys, right? 12:35 And these are now my, these are now my friends. Mm-hmm. Um, and we did some good stuff. We had to do some litigating. We settled some. I got a lot of other stuff dismissed. 12:44 Uh, and, and then from there, I just sort of, I started seeing kind of like what you were describing in your intro and also in our chat down the hallway. 12:57 When your eyes get opened to the like, "Well, I didn't know things were like that." Mm-hmm. 13:01 I had that kind of a moment, and that moment for me was I'm seeing this repeated pattern when a, when a, when a lawsuit is referred to the firm, and I open the complaint, and I'm reading it, and then the first thing I grab is the police report. 13:16 And what struck me was, God, these reports are so poorly written. Hmm. And that's not a dig against cops at all. Um, they're writing to the standard that they- Were, were taught... right, that they were taught. Right. 13:30 And that their sergeants and lieutenants expect of them. Well, they were... Yeah, they were held accountable, too. Yeah. Yep. Right. 13:34 And but the, the linguistic choices, uh, a lot of euphemisms, a lot of weird, uh, jargon, a lot of things like... Like I'll give you an example. Um, you know, and in the era of body camera, 13:49 which is great, by the way, from a... Just for what I do from a legal defense standpoint, but when you have body camera video, or you have bystander, everything's on- Everything's on a phone camera... everything. 14:00 Oh, my God. Or you have surveillance video, whatever it is. You look at the video evidence, and you see, like, a, a really good, like, form football tackle- Mm-hmm... 14:09 kind of event happen, and you're like, "That was a good hit." 14:13 But, and then in my mind, I'm thinking of what are all the legal reasons, w- what are the objective facts within this legal analysis framework that I have to make this argument or this defense? 14:23 I see good things happening, and then I read a police report, and it says, "I guided the suspect to the ground." It's like, really? And where did that come from? You know? Yeah. 14:32 The, the suspect was like, "You know, I'm trying to find the ground." [laughs] "If you would-" Right..."Could you guide me there?" Right. [laughs] You know? Right? 14:41 Like the word guide, you know, it's guide dogs for the blind. Like it's a helpful thing, you know? Guiding is, is a good thing. But it ain't matching up here. It's not matching up. 14:49 And, and then what I found through that was, well, I would just ask questions because I was curious. Mm-hmm. And I'm like, "Why don't you guys write... Why don't we write like this?" 14:58 "Well, that's what my sergeant wants me to write like." And then you talk to sergeants, and they're like, "Well, that's, that's the way I was taught." Mm-hmm. Then you talk to lieutenants, and you're like, "Really? 15:05 Are we teaching guys to, to say things that, that are just sort of like euphemistic jargon?" And he goes, "Well, otherwise, you know, what are we gonna say? We tackled the guy. I mean, it's gonna look bad." 15:15 And it's like, well, but it looks like the way it looks. Mm-hmm. And it- That's is, that is what happened... that is what happened. That's the truth. Right. And so I, so I said, so I said, "Gents, if, you know..." 15:27 In criminal court, there's no, there's no deposition. So if the... 15:31 And, and, and the issue before in a criminal trial is just whether the suspect, whether there's evidence beyond a reasonable doubt that the suspect who's accused of a crime committed those elements of that crime. 15:41 Okay, I'm with you. Okay. In civil court, it's something completely different. It's the, in this police context, the suspect alleges as a, as a plaintiff that their constitutional rights were- Violated... violated. 15:59 Mm-hmm. 15:59 And in the Fourth Amendment context, it's a, it's a proposition that the way in which they were seized, their person was seized, that it was done excessively, therefore unreasonably, so it violated the Fourth Amendment. 16:14 And so the police officer has to do a lot more to account for themselves- Explain, explain that... to explain it. Right. And so then when we got to the explain part, I was like, man, we are, we're way behind the curve. 16:29 Or details that were not contained within the report suddenly, suddenly come out in the middle of testimony and depositions. It's not good. And it's like, you know, we kinda look like we just made that up. 16:42 But I know you didn't just make it up because I've watched the video, right? 16:45 And I've seen this, and I, I inferred it in your report, and I think somewhere in between these five lines, you, you actually were observing the thing that you just now said spontaneously under oath for the first time in deposition. 16:59 So can I time you out for just a second? Yeah. Sure. Go ahead. 'Cause, 'cause where my head is going with this is- Yeah... is this a... So this isn't... Well, I'm not gonna answer my own question. 17:07 [laughs] But is this, they just didn't think to write that in there? 17:12 Or is this, I wrote that, now I see the body cam footage, and now I realize that I left that out, and that was a big part of it, but it just didn't come up in the report writing process? 17:23 I think it, it- Or is it I left that out on purpose because I was coached to do that? No, I think where it comes from is from the standpoint of, uh, I didn't know I was supposed to put that in there. Got it. 17:34 And the reason what... And this is, so in observing this pattern, that was a good question. In observing this pattern and seeing it iterated time and time again, and just asking questions of these guys- Okay... 17:46 and trying to find out, like, what was it that you... How did we get here? Mm-hmm. Right? Uh, because I'd see mostly, and I mean mostly, like 9.5 out of 10 instances, good use of force. 18:02 It is a rare outlier where I'm like, "Uh, we're just gonna settle this case- This is not good... as soon as we possibly can because, you know, not good." Um- So I'd have, I'd have cops that I believed in, 18:16 that I knew were morally correct. They were unable to articulate- Mm-hmm... the constitutionally relevant points because they did not have... No one gave them that- It's-... foundational training in 18:31 this is the legal framework of, like, what it is you're going to use to justify yourself. So here's the analogy, and as soon as I said it this way, guys got it. Right? They got it right away. All right, so, um, 18:46 my, my knowledge of the penal code is iffy 'cause I don't practice it, but, uh, a robbery is a, is a 211. California Penal Code Section 211. A robbery, for something to be a robbery, it must meet elements. Mm-hmm. 19:02 Factual elements. Okay. And there must be evidence of those elements, and that evidence has to put it beyond a reasonable doubt. Gotcha. 19:08 Those elements are codified in the statute, and they're reflected also in the jury instruction. 19:14 So when I use this analogy with police officers, I say, "Look, let's say you write a report about a 211, and you leave out, um, with, uh, through threat or intimidation or force, right? 19:28 You leave out an element of the- Okay... the statute. Do you have a 211?" "No." 19:34 Right, and you go to prelim hearing, a preliminary hearing, and you don't have any mention or any evidence of that essential element of the, of the crime, what's gonna happen at the preliminary hearing? 19:46 And he's like, "The defendant's gonna be released. He's not gonna be held to answer." Right, and you're gonna be made fun of- Mm-hmm... by all of your peers because 19:54 you wrote a substandard report and you did substandard police work. You would never make that mistake more than once, right? Mm-hmm. 20:01 You sh- first of all, you wouldn't make it to begin with, 'cause your sergeant would catch it. And if your sergeant didn't catch it, my God, your lieutenant's gonna catch that. Right. 20:09 And if by the time it got to the prelim, the DA looks at it and is like, "You can't even bring this," right? Mm-hmm. 20:15 So everyone knows that, but I go, "Are you familiar with, uh, the Ninth Circuit Civil Model Jury Instruction 9.25?" And they're like, "I've never heard of any of that." 20:26 And I go, "Well, that is the jury instruction that in my world, I'm going to argue to the jury, I'm gonna walk them through this instruction to explain to them why your use of force was objectively reasonable." 20:37 Okay, so can you go back to that? Yeah. The 9.25, what is that? So 9.25 is a jury instruction. 20:42 It's o- within the, within the federal, civil, and criminal courts, there are model jury instructions, and they're by circuit. 20:50 So w- you know, the Ninth Circuit includes lots of states: California, Hawaii, Alaska, Idaho, Montana, a bunch of others. Mm-hmm. Um, 20:59 each circuit has a model jury instruction for whatever it is that the question might be in front of that court. It's not the same circuit to circuit? It's not the same circuit to circuit. Okay. 21:07 It's not verbatim circuit to circuit. It's very, very close, but it's not the same. That's interesting to me. Yeah. Yeah, so- Again, more inconsistency. Yeah. Okay. Right. There's, there's a lack of uniformity. 21:16 Well, which is also why, you know- The Constitution's the Constitution. True. So if you've reached federal level, why is there dif- Why is there not uniformity? I, I, that's... You don't have to answer that question. 21:27 Yeah. I'm sure that's a very deep level question. Right. But- It's how the courts are organized. It's, it's, yeah... as a citizen, I assume- You just expect- I'm going to federal court- Yeah... 21:35 like this is how this operates- Yeah... anywhere you go. But it doesn't is what you're saying. No. And, and like just think about some recent 21:43 newsworthy events where the Supreme Court of the United States was involved in deciding the question. Happens all the time. Happens all the time. The reason for that is because there's disuniformity- Mm. Jeez... 21:52 amongst the circuits. Okay. There's a, there's a question where you'd have various levels of federal judges who would say, "I think it's, I think it's A." And then another judge says, "No, I think it's B." 22:05 And then maybe in a different circuit you have another judge who's like, "Guys, it's not a letter, it's a number. It's two." And then eventually through the, a very tedious... It would be too hard to... 22:19 We would, we would kill this podcast interview- That, that-... if we went through this... I know I took you on a little tangent here. It, it gets to the top and, and they, people basically say, "Answer this for us." 22:27 Right. Got you. What is it? And that's- Is it A, B, or two?... that's how we get there. So- That's how we get there. So what I just learned, I think I learned, so if I can repeat this back- Yeah. Right... 22:35 is that because there is non-uniformity- Mm-hmm... we have a US Supreme Court, right? That ultimately ends up making the decisions that are, that people don't necessarily have agreement on. Right. 22:49 And, and I, I think I understood that part. Yeah. But I didn't understand the underlying reasons why- Yeah... that might be occurring in some cases. Yeah. Maybe not on my, maybe not all, all the things. Okay. Sorry, I... 23:00 That was a very good explanation. Sure. All right, so we're going back to the officer now- Going back to the officer now... that doesn't understand 9.25. Yeah. And they, and they, and so they've never heard of it. 23:08 And the, and then I just go, "Well, just tell me what is your..." And they're... So real quick, so the reason why it's important that they've never heard of that is that they have no idea what it... 23:18 A, a jury instruction is a framework. It's a, not a template, but it's like, we're going to argue this. We're gonna argue these elements. 23:27 And there's, I think up to, I think there's 15 separate elements now in the jury instruction, with the last element is discuss other relevant factors here. It's like a catchall. 23:39 The totality of the circ- The totality of the circumstances. Okay. Right. And so there's stuff that's in this jury instruction where it's like you're leaving out... 23:48 I know you observed facts that are relevant to this element, and you left it out. That's like leaving out the thing about the 211. Like you don't have a 211 now, so we have to ar- we have to play catch-up. 24:01 We're starting on the back foot. Is it, is it fair to say that, that in the 9.5% of, or 9.5 ti- uh, uh, out of 10 times- Yeah... that the reason you're even there is because that information was left out? Yes. Yeah. 24:13 Because the understanding of how important it is to put it in there and how to articulate it correctly- 100%... has put them in that situation. 100%. That's disturbing I know. 24:22 It's like, it's a part- partially self-inflicted. I mean, it... To be fair, anyone can sue for anything. I d- that is true, especially- Right... here in California, that is- Oh, true... for sure true. 24:31 Right And what, what folks don't... This is like, here's, here's a little tidbit for your civilian non-attorney, uh, audience, is that just because someone has sued, it doesn't mean, it doesn't mean a hill of beans. 24:43 It doesn't mean nothing. All it means is that they... I like to tell people that the threshold to step into the courtroom is as tall as the piece of paper that you file- Mm-hmm... at the window. Hmm. Right? 24:53 If you can allege something that if it were true, 'cause that's how the, it's treated at the pleading stage, when the pleading stage is when you file your complaint, when you allege whatever it was that you're alleging happened. 25:06 If what you alleged is true, the question is then, are you entitled to relief? And if that answer is yes, your lawsuit remains filed- Hmm... and you get to go through discovery. 25:16 That doesn't mean that every lawsuit is meritorious. So anyhow, so what I was finding was, in this pattern, as I'd see it iterated again and again, is that officers didn't know what facts were relevant, right? 25:29 They were writing to their training. Hmm. That's how they were, uh, that's how they were crafting their reports. 25:35 There was the weird language issues where it was like, "Guys, we either sound like we're in a laboratory or we sound like we're trying to hide something." 25:43 Um, and that's not good because it makes your credibility look really bad. And, and then why are we leaving out, like, all this important stuff? And that got me really interested in wanting to teach. 25:59 Uh, my first job out of the Marine Corps was teaching high school. Okay. I, I love teaching. I love teaching, I love coaching. Go back to the history- Yeah. So I've got-... social studies teacher thing. Exactly. 26:07 So I, you know, and, uh, with my kids, uh, my 10-year-old son, like I, I coach his football team. Okay. Got it. You know? Uh, I'm coaching at a local high school strength and conditioning stuff. Okay. 26:17 So I'm like- All right. Right on... I'm trying... I, I love being involved with, and watching people learn gets me really fired up. Um, and so I was like, wow, is there really an opportunity to do this? 26:29 And I ended up meeting, meeting some really interesting people and had opportunities to do teaching, traveled around the state teaching legal updates. Um, 26:41 stepping back a little bit from, like, active day-to-day practice and doing more of this like, look, tr- trying to spread the good news- Service work... of the Constitution. Yeah. Mm-hmm. Yeah. 26:49 And, and then getting back into practice and where I am now, and then keeping these relationships going so that now, like for example, with Cal FEA, being, being able to be involved. 27:02 Um, and then like the first day of this symposium, um, the briefing room was a client of, client of ours. Gotcha. I caught a little bit of that. Yeah, yeah. I was in another interview, but I did get some of it. Yeah. 27:14 Yeah. So, so the briefing room, um, uh, Jason Lewis, who I, again, I met by just getting out into this- Into the world... into the world and, and talking about this stuff. Um, what they do, I mean, it's, it's fantastic. 27:30 It's like it, it's a source of... I rely on him to tell me when the cool cases are published- Yeah... because I don't see that stuff every day. So the, so this is the thing. 27:39 So like, again, ano- another little side trip here. Uh-huh. So I'm listening to you and I'm going like, "Where's the breakdown?" Right? Yeah. 27:45 And, and you talk, they're, they're, they're training to the, to the level that... Or they're, they're writing to the level they've been trained or coached- Hmm... right? 27:51 Uh, they're, they can only repeat what they think they know, right? And they, what I, what I heard you say is they're pretty unclear about some really important things. Yeah. 28:01 They're clear maybe about a lot of other things- Right... like how to write this thing the way I've been told to write it. Yes. And, you know, like 28:08 in, i- internally they're like, "No, I know I did the right thing, and everybody's telling me- Hmm... I did do the right thing, but I've gotta go through this process." Yeah. 28:14 But they're finding out about how they, for lack of a better term, fucked up that process- Yeah... 28:19 when they're in this really serious situation now where you're potentially walking into federal court to defend yourself, right? Exactly. And so is everybody else. Yeah. 28:26 And I, and I imagine at the same time everybody's like, "Oh, so this dude's like, he's getting in trouble." Like- Yeah... don't... 28:33 So going back to your football and ath- you know, your football experience, like don't touch the guy on crutches. Yeah. Like, don't, don't, don't hang out with that guy. That's bad juju, right? Right. 28:41 Like, so now they're in this space and they, there's probably not a lot of people they can go to on their team to help them understand- No... 28:49 what this process is, the things that you're telling them, because one, they've never been there- Hmm... yet, right? Hmm. And, or two, 28:56 they didn't, they didn't care to know when their other buddy got into this process because he was the guy on the crutches and it's like, uh, he's- Yeah. 29:04 And I'm busy, and I have things to do, and I'm trying to be a dad, and there's other skills I need to keep up with- Yeah... and they're sending me this other training, but it didn't prep me for this thing. 29:12 That's got, that's a pretty... That s- sounds like a pretty lonely place to be as an officer. 29:15 It is very, I was about to say lonely, and that's re- that's a, that's an interesting, uh, uh, visual metaphor, the guy on the crutches. 29:22 Because, like, what I'll tell a client always is, "Do not talk about this with anybody except me," 'cause as soon as you have conversations about stuff, that's discoverable. Mm-hmm. 29:34 So if you, if you're, uh, at deposition, which is under oath questioning by the opposing attorney, and they say, "Have you spoken with anyone about, uh, the incident?" 29:44 And if you say, "Yes," they're gonna ask who, and you have to tell them. And if it's like everybody- And those people are deposed... 29:50 then all those people are deposed, and they'll say, "What did Officer so-and-so tell you about it?" And then they go through the process of- Yeah... well, like, "Well, I was told I shouldn't say certain things- Yeah... 29:58 and I need to say it this way-" Yeah... which makes it maybe feel or seem unbelievable. Sounds artificial. We're not telling the truth. Yeah. It's manufactured. Right. There's a conspiracy here- Yeah... 30:07 to try to cover things up. Now the theme at trial is they cooked their story. Mm-hmm. Right? That's the narrative. That's the narrative, yeah. So what I, what, what I've really enjoyed 30:19 in, one, being involved with Cal FEA, 'cause Cal FEA is w- is a group of guys who recognizes That, and this gets to your question about why, like, why, why are they even here? Why is it... Yeah, why is it this way? 30:31 Why is it that the officers are, are... They're writing to- They're absolutely meeting the standard to which they've been taught. Right, but what is that metric? 30:39 But why is there a deviation between the standard at which they've been taught and what it should be? The reality? Yeah, and I think it's bureaucratic inertia, honestly. Okay. 30:47 This is my- From my perspective, that's my opinion. Here's an example. So, and this came up in our, the, uh, the briefing room presentation here two days ago. 30:57 California POST, uh, the Peace Officer Standards and Training. Mm-hmm. Mm-hmm. 31:01 So the, the, the bureaucratic administrative office that's responsible for setting the standards for peace officers in California, when they talk about legal updates, there's a requirement for ongoing legal update training. 31:14 Mm-hmm. Mm-hmm. And the way that it's, uh, crafted, the requirement that has to be in the syllabus is Graham v. Connor- Mm-hmm... okay, which was published in 1989, Tennessee v. Garner, which predates Graham and 31:32 in reality deals with a very minor issue that, that doesn't... In other words, that's not the case that I would start reading. I think I understand this- You know what I mean? Yeah... 31:41 but, uh, for, for people that don't know- Right... what those are- Right... you should- Yeah. It- it's not hard to figure those out. Yeah. Tennessee v. Garner and Graham v. 31:47 Connor are important in the same way that Leviticus and Exodus are important to the, u- understanding the biblical story. That's a great analogy. Right? Yeah. But that's not the entire dang thing. Mm-hmm. You know? 31:57 You still have to get to the New Testament. Right. [laughs] Okay? So the, um, and then it says, uh, Hayes v. California, which was, uh, maybe it was, like, 2011, but that's, again, 32:11 from a lawyer standpoint, I'm like, "Guys, the issue in Hayes, like, it's very limited applicability to your understanding of the broader landscape of case authority." It was a niche issue. 32:23 Okay, and then it says, "And pending cases." [laughs] Well, that, there's no freaking way you can review pending cases 'cause they're pending. So is this the- Yeah... we're talking about, like, AB 95? 32:32 What's the, what's the- They're- Or is this... 295 is the one we're talking about? Oh, so, uh, AB 395. AB 395. Yeah. Okay. Sorry. So there you, there you go. Yeah. 32:39 That's all I'm- You've heard, you've heard all the, all of the- I've heard all the stuff. Yeah. Trying to put it all together. Right. Right. So, 'cause it seems like what that is is, like, a conglomeration- Yeah... 32:46 of all of these things, and if you don't understand what all of those things are- Yeah... this new bill doesn't make sense. It- Right. So they'll... 32:54 So the legislature of the state will set out whether they go, whether the assembly bill or the Senate bill, whether it modifies or amends part of the government code or the penal code. 33:06 So, like, penal code section 835A, that was amended by AB 392, sorry. Yep. 33:11 And, um, and then there's SB 2, which amends a bunch of different parts of the government code, and there's, there's lots of legislative initiatives that get passed, and then existing statutes, language is changed, or new subdivisions are added. 33:25 So there's a whole host of state law changes that have happened in California that affect law enforcement and in that regards, sort of the state saying to its peace officers, "Here's the limit and extent of your authority." 33:41 Mm-hmm. Right? Now, the state limit on authority, that's a pretty hard line, right? So if you exceed that line at the state level, so y- 33:50 I, what I, what I try to describe to people is that the star that you wear- Mm-hmm... right, which I think is funny symbolically, because stars are things you aim at. They're high objects, right? So you're the ideal. 34:02 Mm-hmm. So here's a, here's an artifact that we're gonna give you that represents that ideal. [laughs] Okay. Okay? And you're gonna wear that, and then, um, it's, it's got magic powers. 34:13 You get to act under the color of it to do a lot of things, including, if, if it's reasonable- Mm... or under California standard, if it's necessary, taking another person's life. Mm-hmm. 34:26 So it's a heavy, heavy responsibility. If you exceed that authority that we give you, if you exceed the magic of this star, uh, you might be prosecuted criminally. You're, you're gonna go to pr- Right... 34:35 yeah, you go to prison. Now, in the civil court, the limit on authority is the boundary that the Constitution places on the state, and the reason why the Federal Constitution even applies is through the 14th Amendment. 34:49 Okay. So that's how it applies to the rest of the states. And so the Fourth Amendment question comes up. 34:56 You might have something that under a Fourth Amendment analysis, we're always looking to see whether it's objectively reasonable. Mm-hmm. Whether this seizure was objectively reasonable. 35:04 And what that means is, impliedly, the government can intrude upon your Fourth Amendment interest, but only the reasonable intrusions are the ones that are okay. Mm-hmm. 35:14 It's the unreasonable intrusions that there's some sort of consequence for, and that consequence is money. Now, usually, it's not... This is back to your guy on the crutches analogy. 35:25 Usually, it's not the officer's money. It's the public entity's gonna defend. Mm-hmm. They have insurance. There's always an allegation of punitive damages. Punitive damages sound like what they... 35:37 They are what they sound like. It's punishment. Mm-hmm. And sometimes, although this is very technical, punitive damages are not, as a matter of rule, always covered by someone else's insurance. Yep. Right? 35:53 The, that officer feels that. They get a letter from their employing agency's insurance group or carrier or whatever that says, "If this happens, we have to tell you right now, you might be on the hook for it." 36:04 You're on the hook. Yeah. Mm-hmm. And so being, having gone through trials, taking trials to verdict, sitting there with the officers when the verdict is read, you know, the gravity of the black hole- Mm... 36:17 that's their person sitting next, and you can feel the, the tension, you know, and then you can feel the, the guys are just like, you know, when we get a good result- Relief, yeah... 36:27 you know, they're just like, "Oh, my God." And, uh, and I go, "I bet you get... I bet you won't write another report like that again." Right. 36:33 And that brings it full circle to this thing where I had, in one of my cases that I had ear- this is early on as a, as a baby attorney, I had a guy who, along with a couple other officers, had this, um, [laughs] 36:49 these two, two very, uh, drunk young people at a, a BART station in the city. Um, there was a kerfuffle between the- [laughs]... between the male subject and the janitor. Yeah. The park janitor. Okay. 37:05 Now, and the girlfriend, who was more inebriated than the boyfriend, she, I, was just kinda acting out, and the closest thing I've seen to being guided to the ground is- Guided to the ground... 37:21 is, is what happened, right? [laughs] Of course. It was very, it was very much a guide, but the officer who was primarily involved in it had been sued before. Mm-hmm. 37:30 And, and the partner I was working for at the time had defended him, and defended it successfully. And so this is his second time around. And... 37:40 'Cause like I said, there's n- there's nothing that's gonna prevent someone from suing you. Mm-hmm. Right? If they can make the allegation, they'll make the allegation. Mm-hmm, mm-hmm. 37:46 His report was, was like dead nuts the best report I'd ever read, and his ability to articulate himself- Gotcha... was just like, whew. And I was like, "Man, this is a great report." 37:57 He goes, "Yeah, I learned my lesson," like whatever it was, 12 years ago, 15 years ago. He goes, "Where I got sued," he goes, "I have never made those same mistakes- Mm... ever again." 38:04 So I was like, oh man, there's really something out there that I think that law enforcement generally, not just in the state of California, but, uh, nationwide, can benefit from, from just cracking the book, right, proactively, and to lear- and to learn 38:23 why is case authority important. So ca- a case, an opinion that's been published, why is that important for you to read, and how do you go get that stuff, right? 38:31 That, that's what I was just gonna say, 'cause this is a, this is a, a bit of knowledge- Mm-hmm... and this is a bit of skill. Mm-hmm. 38:36 And where do I get, where do I acquire those, 'cause they're not being practiced- Yeah... from what you're telling me. Right. They're not being... It's not being... 38:43 The, the, the knowledge isn't being transferred, that's kind of a cliched term, at whatever level it should be transferred, as it seems to me, right? 38:51 And the skill certainly isn't being practiced, and I don't know how you can practice the skill if you don't have the knowledge. If you can't... Yeah, if you can't acquire it. Right. 38:56 That's like saying, "I, I want you to, to physically train and get in shape, but I'm not gonna really- Yeah, yeah... tell you where to start looking to figure out how to do that." 39:03 The analog- "And you don't have any equipment." The analogy that was given to me the other day was like, um, uh, Scott Savage was sitting in that chair- Yeah... 39:09 a couple days ago, and we were talking about like, oh, you, you know, you own a gym, and if somebody comes in and they go, "Hey, I wanna learn how to squat," you know, or whatever, and there's no equipment in the gym- Yeah... 39:18 but I have a big screen, right? Mm-hmm. And a PowerPoint presentation. Mm-hmm. And I go- Yeah... "Well, let me show you all the things." This is below parallel. Yeah. [laughs] Right? Exactly. This is not below parallel. 39:27 Yeah. Yeah. Good. Good. There you go. There's the bar. I want- You put weights on it- Yeah... you're good. Put as much weight on it as you think you can handle. Right. Go for it. It's the same thing. 39:35 Yeah, it is the same thing. Totally is. And so what we've, what we've done... And here's the, here's the... I don't know if this is irony or if this is just kind of like, uh, like, oh man. 39:46 So the standards under California, California state standards for training peace officers, I think nationwide are like, it's like the gold standard. It's like the best. 39:56 It's the most number of hours certainly, by far- Okay... of anybody. And it still misses- Big time... huge. And it's all, like, where is the boundary of your authority? If you're gonna play a game, this is what I, I, I, 40:12 whenever I get a chance to talk to, uh, groups of, uh, cops, um, I always say, like, "If you and I were to play a game," if I said, "Do you wanna play with me?" They would say, "What are we playing?" Mm-hmm. 40:26 I would have to explain the game to you, right? Mm-hmm. There's rules. Yeah. Who, who- There's, there's strategy. There is strategy. There's rules. 40:32 And the rules are important because you'd wanna know, like, well, if I can't break the rules, because if I break the rules, I probably won't win. Mm-hmm. Right? And I wanna win. I don't wanna be penalized. Yeah. Right. 40:41 So- This is, this is easy... this is easy stuff. Right. So who among us would play a game blindly? Mm. Yeah. Or just say like, "Sure, I'll play a game." 40:49 Especially if there's, like, m- a- and I want you to play a game with me- Yeah... but there's money on the line. I want you to, like- There's money on the line... winner, winner takes- Yeah. And not-... 40:55 takes 1,000 bucks... and not just money, but, like, your livelihood, and maybe even, maybe even if you commit a grave enough penalty- Your freedom... your freedom. Yeah. You good? You ready to go? 41:04 You would want at least to be like, like- I have some questions... you'd be like, "Is there a rule book- Right... that I can consult?" Right? Right. 41:09 Because there's certain boundary lines that matter, and it's even more complicated because these boundary lines are nuanced. This- And they're fact intensive. 41:17 And so these guys, this is like, you know, guys and gals out there are asked to do this job, and they- Which is not easy... is not easy at all. 41:26 And I believe instinctively they overwhelmingly, the majority of them, make the right, they make the right decision. And it's just a matter of, you know, helping before something happens, 41:44 helping people understand, like, "Okay, I've seen this pattern before because I've at least read this case, and this is familiar to me. 41:52 And so before I actually have to make this split-second decision in the, in the heat and the uncertainty of this- Moment... 42:00 rapidly evolving moment, uh, I came up with a pretty good plan ahead of time, and I know what my resources are, and I know that I don't have to do something right now." Mm. 42:12 "I can wait for a more advantageous time, keeping myself and my team safe as we try to figure out an alternative solution. 42:20 And if that alternative solution is thwarted by the suspect because of non-compliance or their, you know, act- active violence toward me, I know that constitutionally and within my state authority-" I'm inside those Right and left, right... 42:33 I'm inside the right and left lateral limits, exactly, and I can, and I can move freely. And that empowers people to be- Mm. 42:42 And, and I think to tie this to, like, you know, what you had said at the beginning about, you know, what COVID was- Yeah... the, the- Was a catalyst... 42:52 that catalyst and the sneak peek into, like, this is what happens when society falls apart. Mm-hmm. It's not fricking pretty. Having 43:00 the appropriate tension, yes, but also the balance in the relationship between the citizenry- Mm-hmm... and the state is critical to our social health. And so if we don't have 43:14 police officers who are confident in what they're supposed to do to be able to make decisions, then things that should happen or that people like you as a business owner or, or a homeowner would expect, like, "Wait, I thought that the cops were going to... 43:27 And this is... 43:28 I feel uncomfortable with this," uh, where they're not ma- they're not confident enough to make the decisions that they, society expects them to make, or they are making decisions that they believe are correct but exceed some boundary, whether it's constitutional or, or otherwise, and then there's another segment of society that's like, "Well, this state is abusive- Mm-hmm... 43:50 and I don't trust them." Mm-hmm. And so now we're just gonna, like, tear everything down the middle. 43:54 And so the more, I believe, I believe that the more that, uh, law enforcement officers have an understanding of the rules of this game- Mm-hmm... 44:03 let's say the rules of this w- the game that they play, 'cause it is a game, it's a competitive game. Bad guy wants to commit crime- Mm... and not get caught. Police off- There are winners and losers... 44:12 there are winners and losers, absolutely. And, and public safety's, uh, at stake. That's what's being played. And the more that we understand the rules of it, the, the better off, uh, I think it'll be for everyone. 44:25 So a couple things- Yeah... and takeaways for me as I'm, as I'm listening to you. 44:28 First, you were, you were going through the, the lack of knowledge, skill, and then what, what that, what that drives is a, is a lack of confidence. Mm. And then you talked about the moment and having to make decisions. 44:40 Mm-hmm. And I think more than ever, especially with the body-worn cam footage and the- Yeah... 44:44 cell phones and everything else, what you see out there, and this has kinda been the theme, is there's a, there's an, there's a component that lies in between there, and that's hesitation. Yeah. 44:53 I think I know, but I'm not really sure. Yeah. Right? And I think I have a skill or I have a tool on my tool belt. I'm not sure that... And, and that moment's happening, man. Yeah. Like, and it's happening right now. 45:06 Absolutely. And so I make a decision- Mm-hmm... without the confidence- Mm-hmm... after maybe I've hesitated- Mm-hmm... right? And that hesitation has created or taken now time away- Mm-hmm... 45:15 from me making the decision to do something different. Again, get more distance, wait for backup, wh- whatever- Right... 45:21 use a particular tool, and then things happen, and then they find out about all this when they're in the worst possible situation- Yeah... which is now my freedoms could be taken away from me. Uh, 45:32 you do a very good job of, um, uncomplicating the very complex. This is- Well, thank you. Yeah... this is a great conversation- Yeah... for me 'cause I'm not a smart person. Yeah. 45:40 I, I, I really wanna be and try to be, so I really- Yeah... appreciate the way- It's all good... you're handling this. Yeah. And so, uh, and I think m- that's probably the majority of cops too, right? 45:48 Like, and when I- I think so... I'm not, not in an insulting way, but just, like, they wanna know, right? And just explain it to me in a way that I can understand it and that I can actually utilize it. 45:56 They love hearing it. Which y- so that's the other thing. Yeah. They don't know what they don't know. Yeah. Right? So and when they hear it, they're like, "Holy shit," like, "Tell me more," right? Yeah. 46:03 I, I imagine when you're- Absolutely... and they're like, "Why didn't anybody tell this to me?" Yeah. And then they're probably looking at you like you're th- you're their best friend or their only friend- Yeah... 46:10 right, in this situation. They... I, I did a, uh, up in, uh, Roseville, I spent a couple days with that police department a co- a couple years back, 46:21 uh, going through 835a, so California Penal Code Section 835a, and the changes that happened. And- They were significant. Oh my God, it was huge. And I w- They didn't know. No. 46:31 Well, I was also in the camp- They just put out a memo. Yeah. I was al- Nothing's changed... 46:34 I was also in the camp as an attorney where I just read, like, what the law enforcement defense side was saying about it, and I was like, "You know, if anyone asks me," I'm like, "Looks like the same thing." 46:42 I mean, I, I believed- Mm-hmm... that, eh, it should be the same. It's pretty much, it's pretty much analogous to the Fourth Amendment. And then, so when that, um, 46:53 Officer Fletcher, uh, at San Leandro Police, uh, there was a Walmart, um, it was the Walmart shooting in San Leandro. Mm. And he was prosecuted by the, the then DA O'Malley in Alameda County. Alameda County. 47:07 So my buddies, like my guys here, CalFIA, sent me a text on the w- CalFIA text thread, and they were like, "What do you think?" And, uh, 'cause they sent me out, uh, O'Malley's, um, 47:18 press conference statement where she announced the charges, and I was like, "Oh." I was like, "Um, hold on one second." 47:24 And I pulled up the statute and I read it, and I read it again, and I read it again, and I was like, "What am I missing?" And so I just started reading the thing backwards. I read from the definitions up to the top. 47:33 Oh, interesting. I read in reverse. Interesting. And I was like, "I get it now." The whole, the whole thing's different. So I just texted them back, "The whole thing's different. I was wrong." Right? 47:41 And so when I was up in Roseville teaching this, uh, the guys would joke with me. It was, it was a two or three-day thing, and, and they were like, "Ah, you know, after day one, I wanted to quit. 47:53 I was thinking about, you know, dusting off my welding equipment and, like, [laughs] getting a different job." And then they go, "And then you kinda brought it, you brought back the motivation on day two." 48:04 And I was like, "Well, that's good, because it's still possible to do your job really well, and safer for you, safer for the officers to your left and right, and, 48:17 and better for society because we're following the rules that the legislature says we want you to follow. And it's possible to do it, but you have to start from the standpoint of, like, how do you- Awareness... 48:29 how do you learn? Awareness. How do you learn? 48:30 And you'd mentioned something that I thought was interesting, too, about, you know, the hesitation, and, you know, coming from, uh, coming from the United States Marine Corps, I was an infantryman. 48:40 I was an infantry platoon commander. Okay. Hesitation is deadly Mm-hmm Can't hesitate. So I come from the school of thought of we, there's zero hesitation. Mm-hmm. It's maximum violence now. Mm-hmm. Right? 48:53 And then that's all. That's what you do. Uh, policing's obviously different. And so if you hesitate, there, there is, there is necessarily there's a lag between 49:06 what you're observing and your action plan because you're like, "I've gotta figure out... I can't just go." Mm-hmm. Right? Um, but if you hesitate, there- There's repercussions... yeah. And hesitation is stressful. 49:19 Mm-hmm. Man, when you're like, "I need to make a decision right now"- It lives in your brain after, too... oh, my God. Yeah. It's really stressful. 49:24 And then it also, it ru- it ruins your ability to think, uh, I believe, because, you know, you're wrapped up in, in this point of friction and you're like, "I can't escape it." And 49:36 hesitation will come from lack of confidence. Mm-hmm. And then you default to what it is that you know, and what I have found is that for as little time as police officers will spend, and it's not their fault. 49:51 It's not like they have the option to spend a bunch of time learning about case authority and being able to talk through, like what, what these constitutional concepts mean. 50:02 They, they spend so little time doing it 'cause it's so little time is required. Mm-hmm. They spend a lot of time doing a lot of gadget stuff. Let's talk about that. Let's talk about that. 50:11 So the gadget, the gadget stuff is like... And, and I think this is a, a natural outgrowth of, of any capitalistic enterprise. 50:23 You have a public service requirement where the government needs to do something, defense for example. Well, you need gear- Mm-hmm... to do that. 50:31 To provide for the defense of your nation, you need gear, you need weapons. So is the government going to run its own factories? No. That doesn't make any sense. So we're gonna hire other factories. Private entities. 50:42 Yeah, private entities to develop cool stuff for us. And they do a pretty good job. They do a dang good job of it. Mm-hmm. And I've used it. A bunch of them here. Yeah. 50:49 I mean, this show doesn't happen without some of those companies. It doesn't. That's- I mean, we got like a, there's a- Yeah... 50:53 there's a really cool, I think it's hydraulic or gas-powered, you weren't here yesterday but they demoed it where they... It, it's, they're stop sticks, but you, it's basically a unit you put on the side. 51:02 It's like air-charged or gas-charged and it shoots out basically like this expandable ladder, and it shoots it across the road so you don't have to jump out there. It's, works on remote. 51:10 You can stand like 100 yards away as an example. The SureFire guys are here- Yeah... you know, for all the weapon mounted lights and, and things like that- Yeah... and lasers. That, that's a private entity, right? 51:19 The, the, um, there, there's a, a couple of wrap systems out there. There's some, uh, arrest and control stuff out there, all from private, private entities. Totally. Which is where your innovation's gonna come from. 51:29 100%. Yeah. Anyway, I say all that to say is like- Yeah... it's driven by money- And you need it... and you need it, and the private entities have that. 51:37 And then sometimes the balance gets a little tilted where it's like, yo, hey, we need to find... 51:42 Because what's, what's looked for, I think, I think this is where the, where it goes wrong, the aim just gets a little bit off. It's like we need a tool- To fix it... 51:53 that's going, that's going to fix our need to have to use force against people. Mm-hmm. Right? And it's like, well, no such tool exists. Mm-hmm. That was the whole idea behind, well, we're gonna have a taser. Mm-hmm. 52:04 They're here. You know? Mm-hmm. And, and tasers are great. Mm-hmm. I mean, as a, as a- Sometimes... sometimes, yeah. But it's a less lethal option. It's not the answer to every problem. No. 52:13 And constitutionally speaking, the taser is an intermediate to high level use of force. Mm-hmm. And so when Taser first unveiled itself into the 52:28 law enforcement community, and I'm blanking on the name, it's either McPherson... I'm blanking on the, on the name of the case, but there's a case that, that happened, uh, a lawsuit involving a taser early on. 52:42 This goes back to the early 2000s. It made its way to the Ninth Circuit, it was heard in the early 2000s, and I think it's Bryant. Anyway, um, 52:52 that was the first time the courts had to deal with, like, when is the taser objectively reasonable to use? And the w- the, the facts of what happened were you had a college-age kid 53:05 coming down from Santa Barbara down further south, uh, after an all weekend bender. Okay. And, uh, was caught speeding, actually several times, but w- at the last time- [laughs]... 53:17 I think maybe he'd finally reached his emotional limit, you know, and he's throwing a fit. He's standing outside his vehicle. The officer who pulled him over is writing him up his ticket. 53:30 The kid's in his boxer shorts, and he's just like, he's had it, you know? Mm-hmm. And, uh, so there's no video of it. This predates the, the days of video. 53:40 And so what's described in the facts is that he's, like, kind of just acting out. He's literally throwing a fit. And the officer, uh, w- the tasers end up- Being deployed... being deployed, as they say. 53:53 I like to say the taser shot the subject in the chest with the taser, and the subject was immobilized- That's it... as a result of that. And the officer explained it as, "Well, this guy, like, ramped up his emotions. 54:06 He was super agitated. He seemed like..." I'd interpreted that as violent. Threatening, yeah. Threat, threat of violence. 54:13 And then he took a step off the curb, and I, I mean, how long do you want me to let him step toward me before I- Great question. Yeah. And so, uh, what the court ended up having to decide was like, well, where on the... 54:24 'Cause this is how f- this is important part of the rules of the game. Your force that you use becomes the measurement of the intrusion into the Fourth Amendment- Fourth Amendment... right. Mm-hmm. 54:36 And so if you use a high degree of force, then you've made a significant intrusion into the Fourth Amendment. Now, significant intrusions into the Fourth Amendment are fine- So long as they're what? 54:47 So long as they're reasonable Reasonable Now, what makes it reasonable? 54:50 Well, it's, uh, the totality of the circumstances The totality of the circumstances And, and the government's interest in using that force at that time would be defined as starting with crime threat resistance. 55:01 Those are the big three that come from Graham. But then the rest of the elements under 9.25 or wherever your circuit's model jury instructions are numbered, uh, those are relevant as well. Well. 55:11 Mm-hmm So things like the, the change in the circumstances and, and how quickly the officer had to react, whether there were less intrusive, um- Means... alternative means available. 55:21 Mm-hmm Who's more culpable for causing the situation, right? 55:24 Do we have, do we have poor tactical choices that then lead us to a situation where we had to use lethal force or a high level of force to resolve mistakes that were made? 55:33 Or do we have it where the subject is the cause of it, they're the one who's culpable because they did, you know, X, Y, and Z? Uh, all of that stuff is, is super relevant. So the taser's not a panacea to using force. 55:46 It is itself an intrusion that has to be justified. So then you're like, "Well, if I don't spend any time, um, learning my combatives- So it's just gonna say- Yeah... 55:59 like we reached for a tool as an answer to a problem Right. Because I only know and I'm comfortable with this tool. And what happens is, and I know this from personal experience, 56:09 in that moment of intense stress, you default to what it is that you know best. Um, I had the benefit compared to what police have with, uh, a much l- The rules of engagement were not anything like the Fourth Amendment. 56:25 Mm-hmm. Right? So it took a lot of the thinking out of it for me. It, I didn't have to be like, "Well, can I go now?" It's like, no, we're, we're going. Um, 56:34 for an officer, it's like, damn, if you're not confident with your hands, if you're not confident on your feet, you don't have an understanding of distance, how to manage distance, you don't have good defense, right? 56:46 You have situations where, you know, this is starting to escalate up, but you don't have anything in between you and the next tool that you have. Mm-hmm. And if all of your training has been on tools- Tools... 56:58 right, and the focus is on tools and like, we got this new tool and we got this, um- And out of those tools make it, they're going back to private entities- Right... 'cause I didn't have to pay for this. Right Right? 57:09 Somebody else paid for this And someone gave me a presentation on it, told me this is gonna be cool and this is what we're gonna use, right? 57:14 And so, uh, we're seeing this now, especially since 2020 and that summer and, and subsequent, um, social unrest and protests that are not mostly peaceful and things like that. 57:29 Um, you have, you have tools that were designed primarily to do, um, to help you seize individuals, and those tools are being used to disperse crowds. Mm-hmm. And that creates an in- really interesting- Yeah... 57:46 constitutional problem. Mm-hmm. Because if you shoot indiscriminately, let's say, uh, you know, 40 millimeter foam- The tar, yeah, foam, yeah... 57:56 stuff or you deploy the, um, the, the rubber pellet grenade stuff and, or even flash bangs, uh, or there's indiscriminate use of, of pepper spray or CS, and you're seizing... The... 58:10 Each time you, that tool or that thing touches an individual- That's an intrusion of- It's an intrusion into that individual's Fourth Amendment right. It's a seizure. And so you have to justify that. Mm-hmm. Right? 58:19 And, uh, so, so this is to say, to, to back up to like where's the focus need to be? Necessarily, law enforcement, like any government, uh, uh, endeavor, 58:33 similar to defense, uh, similar to health, you have to have private enterprise involved- Mm-hmm... because that's where your innovation's gonna come from. We have to be really careful about becoming tool dependent. 58:44 Mm-hmm. Right? If the focus in the training is on we gotta get people trained up on how to use this new thing, it's like, yeah, but you haven't even- We don't have the skills... 58:56 they don't have the skill- We don't even have the knowledge base to understand when that thing is within the boundary lines. That's the problem. That's the problem. That's the problem. 59:03 And we don't wanna go find out where the boundary line is by running the experiment through the federal courts. Mm-hmm. It's costly. 'Cause they're gonna tell us. Oh, yeah, they are gonna tell us where the... 59:11 They're gonna te- The only thing that the federal court can tell you is when the boundary line has to be decided by a jury or whether a judge can decide the boundary line on that. 59:19 And then, and then it is what it is after that. Yeah. Right. And so from a risk management standpoint, even, uh, you know, the, the payouts, 'cause some cases are, you know, 59:30 eight figure, seven figure, they're, those start to add up pretty quick. Those come out of the tax dollar, so- Yeah. True... right? Those public entities have to insure themselves. 59:38 They have to use, they have to divert resources from things like special education for kids to be like, "Well, we gotta cover our, our risk over here." And, and so it, it, there is only, there's only upside. 59:53 There's only benefit to more police officers learning and understanding and, and also f- like having the access to the resource, but then like developing the... I'm not saying it has to be enjoyable, right? 1:00:07 Case law's pretty dry. But- It's necessary, though... it's so necessary. Yeah. And you can have fun with it, like learning and talking about these things. And why not learn from someone else's example? Mm-hmm. Right? 1:00:21 And then go out and apply that, what you just learned, and apply it to your day-to-day interactions, and you'll start to see like, oh, no, yeah. It'll start to make sense. 1:00:32 Um, and to do that without having to be sued first, that, that seems like an ideal solution to me. I don't know. No, I... So, man, there's so much there. And, and- Yeah... it's no surprise. 1:00:41 I mean, the theme of what you're talking about obviously fits in exactly to what's going on here at the conference, and I didn't know really what to, know what to expect when I got here. 1:00:49 But what I'm noticing or what I've, what I have found and I've really enjoyed about it, is it has been entertaining. Mm-hmm. Right? 1:00:54 Not just 'cause I don't know it and I'm a nerd and fascin- you know, fascinated by certain things, but- The level of presentation- Mm... 1:01:01 like, the quality of presentation that I've seen, how they are making it engaging, how they are making it fun, but also the theme behind not siloing the training. So there is gonna have to be some level of PowerPoint. 1:01:13 Right. We're gonna have to sit in a classroom for this. Yeah. But it should, shouldn't just stay there, it should overlap into what you're doing on the mat in the DT room- Mm-hmm... what you're doing on the range, right? 1:01:23 Like, what- Yeah... and then those three things should be overlapping, right? 1:01:26 And then what we're doing in terms of report writing and, and hey, when you, if my firearms instructor's giving me this thing and we're talking a little bit of legal in this, like, here's how it transfers over into the report writing piece. 1:01:37 And then sergeants need to be on board with that to make sure when they're reading that shit, it's matching up and we're all speaking the same language. So. Yeah. 1:01:45 I mean, that's, that's ultimately where it should be, but it isn't, and that's what's been, um, that's what's been basically defined here, and that's what everybody here is trying to fix. Mm. 1:01:54 So I imagine you have some answers- Yeah... on, like, how do we make it better? Yeah. Like, a- and, and where are you having success with this? Yeah. 1:02:01 Uh, what are the things that you're doing that you can share for people to be thinking about and change their perspective on, "Look, man, I know I need to know this stuff. I got so many fucking things to do." 1:02:09 And the excuse is always gonna be, like, I don't have the money or the time- Right... you know, my budget or my personal life or whatever to go out and take these classes and go to these courses and whatever else. 1:02:19 So I think there's, there's a lot of different avenues, which is part of it. Like- Yeah... doesn't all have to come from one thing. 1:02:23 Don't expect the government to give you all the training that you need in order to defend yourself in court- Sure... when the shit goes down, right? Yeah. 1:02:30 And/or the skill, the lack thereof, that put you in this situation in the first place, or knowledge. So what do you got for us, man? Like, how do you, how do we fix this? Like, what is the... 1:02:39 Is there a framework that you've seen be successful or you're working through now that seems to make sense, and it's coming out the other side looking pretty good? Yeah. 1:02:45 I'd say, and this is, this would be my own, it's self-interest, but I'm not trying to make a pitch to anyone, because there's other people who do what I do in this area, that practice it. 1:02:54 But have, have an involvement with your, uh... Every agency is, every agency's entity, whether it's county, city, district, whatever, is part of a risk pool 1:03:08 of other counties, municipalities, district entities that, uh, combine together- Yep... to manage cases that come through. Those, those risk pools assign to attorneys like me. Uh, come find us before you get sued, right? 1:03:26 [laughs] Right. Like, I, I went to, uh- Costs a lot less money that way too, by the way. Yeah. It totally does. So, like, I went to the city of, of Livermore, uh, and did a whole, uh, a whole full day. 1:03:36 Uh, and, and, and th- this is just because Livermore is a member of one of the entity groups- Mm-hmm... that, right, is pooled together. 1:03:43 And we, w- our firm had just joined on with it, and this was just like, this is just marketing. We didn't charge for it, you know? It, it- Even better... even... It's great. Like, I'll... 1:03:54 I will do some of this stuff f- absolutely free, right? That's what I f- Yeah... every- everybody here is doing- Yeah... that, doing that at some level. Exactly. 1:04:00 And so, um, because I care about it, and, you know, I spent a whole day with those guys, and we talked about 5150s. Mm. Right? And it was good training, and it was good stuff. Plenty of those here. [laughs] Oh, my God. 1:04:11 Yeah. Well, especially because the state of California has decided that the way that it wants to manage its, uh, public mental health treatment program is to allow people to die in the gutter. Yeah. 100%. 1:04:22 And- That pendulum has gone way too far... way far the other way. Interesting. I live in San Jose- Uh... and the, and the, the current mayor has actually s- swung back completely the other, other side. 1:04:32 Which you have to, man. Yeah, which, which obviously is not a popular thing- It's not, it's not-... for, for the people that think that it's- It's not for the advocate class. I can't stand it. 1:04:40 But, um, but then I'm also like, I'm like, "Shame on you, though, for, for this faux compassion that you have." Exactly. You're gonna allow these people to die with the needle in their arm on, in filth? 1:04:50 Look, I feel the same way. You know? And I see it. Yeah. Like, and I have seen it. Yeah. Like, going through that time, but... And, and again, those are the things that really, they really disturb me. Yeah. 1:04:58 Like, it's like, what the fuck's going on here? Right. Right. Like, is it me? Right. Am I the weird one? Like- But if you wanna put in a bathroom- [laughs] Like- Yeah... 1:05:05 if you wanna put in a bathroom in your house- Yeah... right, you better pull the right permit. You wanna open up this thing for- Don't even get me started... 1:05:10 your business wants to also sell this thing from a vendor kiosk, well, you need to go through it, and I don't, you didn't fill out the right forms. 1:05:16 But the, but the guy who's dying in front of your business, who, who takes a, takes a shit in front of your doorstep every morning, yeah, well, I mean, what do you want us to do, right? 1:05:26 I paid $7,000 for a sewer hookup that I already had in my, in my business when- How about that? Yeah. Yeah. Seven grand. Yeah. "Why, I'm already hooked up to sewer." 1:05:33 "Well, because you put in an extra sink, and-" Society doesn't work that way. No, exactly. It, it's not gonna work that way. So, [laughs] okay, so- So, so co- so come in to find- So co-... 1:05:42 come and find a guy like me or, or people who practice in this area, and you can find that out just by, just be curious. Just ask questions around. 1:05:49 Uh, there's, you know, and then to, for the, uh, for the briefing room, the stuff that they do is bite-sized distilled videos between two and five minutes long- Mm-hmm, mm-hmm... 1:06:02 where at least you'll hear something, and you'll be like, "That's really interesting." And it's, and it's, it's taught by cops. Mm. So it's like, it's at that level where they, they know how it can be digested. 1:06:14 I- it's funny, I have, when I do these, because I do their video reviews, and, you know, I'll say, like, "Well, you know, in this case, there was this, actually this weird evidentiary rule." 1:06:24 And they're like, "That's nerd, nerd talk, Phil. Don't do nerd talk stuff," right? Cop level. Uh, what's the meat and potatoes that they need? And so those guys are doing a good job of it. Scott Savage- Mm... 1:06:36 is renowned. Pheno- phenomenal presenter. Right? Yeah. Yeah. And they're, and then I've met... You know, get involved with an organization like CalFEA, um, and start your own local chapter. You know, part of this is, 1:06:50 like, you know, I had such a great experience in the Marine Corps because I had really, really strong, uh, enlisted leaders. Leadership. Yeah. Small unit leadership My corporals, my sergeants, right? 1:07:05 Even down to my lance corporals. And I, and i- if you, if you seize the initiative, right? And show... And some people are gonna- some people don't like it when you seize initiative. Yep, there's the- Right... 1:07:15 there is that. And you know what? Too bad. So what? It's like, yeah, yeah, that, that's part of life, right? Institutions can become ossified. 1:07:24 That's the nature of institutions, and the only reason that institutions don't fall apart is as they ossify, people at some level decide to revive it- Mm... right, by taking the initiative. 1:07:37 And so it might just be you need to actually go and do it and check it out, and it takes extra time, but then once you have it, you'll start to get people who will join you, and- Well, that's why we're here... 1:07:47 that's exactly why we're here. I, and these are all use of force instructors. Yeah. I mean, most of them are involved in that process somewhere, and they're- Yeah... 1:07:53 taking the time out to be here to learn how to do it better, not just the skill- Totally... on the mat- Yeah... or on the firearms range. Yeah. 1:07:58 I met these guys w- w- who started CalFEA back in before CalFEA was CalFEA, and that was the, that was the buzz at the time. This is like 2018, 2019. Mm-hmm. 1:08:12 And it was, "We gotta do something," because they didn't feel like the, uh, staff leadership, the brass, so to speak- 'Cause many of those guys had wound up in the sa- the situation that you- Yeah... 1:08:24 just explained, right? Exactly. Yeah. And, and then when they bring up their concerns to their chain of command, they're told certain things like, "Well, it's not, that's not what we do." And you know what? Fair enough. 1:08:33 I mean, the bureaucracies have to function at that, at that level for s- for some extent, but you also need to be like, "Well, we n- we gotta innovate. We gotta get ahead of some of this stuff because it's not working." 1:08:45 Mm. It's not working for the individual officers and deputies. It's not working for the members of the public. 1:08:49 And what we don't want is, ultimately, you don't want someone to be like either, "I'm not gonna go to any calls," or, "I'm gonna do a half-ass job because I don't want, I don't want the trouble." 1:08:58 Or, "I don't want the job at all." 1:08:59 "I don't want the job at all," so it's gonna affect recruitment, or, "I really wanna do the right thing, but I don't wanna get in trouble, and now I hesitated, and someone died as a result of that," and that's a terrible thing to happen. 1:09:14 And so why not just say, "Hey, noted." Right. "Let me go. Let me get after this." "Let's go figure this out." Yeah. Yeah. Let's start the figuring out process. 1:09:24 And have, and have the can attitude as opposed to like, "Ah, I can't wait to retire." We don't do it that way. Yeah, yeah. "I just wanna retire and move to Idaho." Yeah. 1:09:31 Which doesn't sound like a totally bad idea, honestly. [laughs] But, you know, and I might, I might join the ranks of, uh, you know, I, some, some mountainous state- Yeah... later on when I'm done with practicing law. 1:09:42 I'm working on it. Yeah, yeah. It's, that's part of the plan. It'd be fun. But, but in the meantime, it's like, no, I wanna just get involved. Yeah. And, and ma- and make something out of it. 1:09:52 So you're involved this, this week and today. You're presenting today. Yeah, today. What, what's, what's the nature of the presentation today? 'Cause you have... 1:09:57 There's, there's a lot of stuff in that, in that brain, man. There's tons, yeah. There's a lot of things you could provide. Yeah. And one of the always the tough part about coming to these things is- Mm... 1:10:05 taking all the things you know- Mm... in front of an audience that's maybe very specific- Yeah... and then putting it in a framework and making it- Yeah... engaging- Yeah... talking about legal stuff that isn't- Yeah... 1:10:14 that exciting and all that to make... So what is the nature of today in the 90 minutes or whatever that you gotta be on stage? So we're gonna do, we're gonna do a couple themes. 1:10:22 Uh, one theme is that, uh, quick doesn't always mean right. Mm-hmm. And the other theme we're gonna do is that, uh, based on my training and experience is not an argument. Mm. Right? It means something. 1:10:37 It ha- There, there is undoubtedly from training and experience a reason why you did what you did. But you need to be able to explain it. 1:10:47 You gotta be able to explain it, and if you just say, "Based on my training and experience-" That's not an answer... that's not actually an argument. It's not an answer. That, it doesn't, it doesn't work. 1:10:54 And why doesn't it work? And there's... And how do I know it doesn't work? Like, it's not just my opinion. 1:10:58 I'm just telling you, like, the binding published case authority that, that controls within the Ninth Circuit says that doesn't work. Um, and so we gotta talk through that. And, and really, like, anytime that I present, 1:11:13 and today's gonna be the same thing, there's gonna be some stuff that, you know, I recycle the old hits. Um, but the focus is always on 1:11:23 you have to unpack these, these cases in a way that shows you what the framework is, and then once you understand the framework, so the framework meaning how are the facts of this case analyzed? 1:11:39 Once you understand that framework, you can reverse engineer that into decision-making. Mm-hmm. And the best time to do that decision-making process is before the incident ever even happens. 1:11:47 Just gonna say that you said based on training and experience. Yeah. The questions I would have if I'm an officer, especially, again, listening this week, but- Mm... 1:11:55 and, and all the people I talk to is, is if I'm gonna say that out loud- Mm... and I haven't examined what each one of those words mean, training and experience- Yeah... did I, was I actually trained? Was I trained? 1:12:06 What was the level- Yeah... of that training? Mm. Can, can I articulate that? Mm. What did I actually get? 1:12:10 I was having a conversation with a guy last night who's presenting today, uh, and we're, you know, he's talking about use of force- Mm... and it's four hours every two years. But when you- Mm... 1:12:19 he breaks it down and he says, "Let's say I have 10 students in class, and I have four hours. 1:12:24 Now the first hour of that is what I'm, r- I have to sit them down in front of the power- death by PowerPoint thing, and we have to go through some things. And then I have, let's say, three hours left, right? 1:12:35 With a break in there maybe or whatever else." Mm-hmm. "So I have three hours left, chop out 30 minutes, so I've got two and a half hours left, right, to now get 10 people through this training," whatever it is. 1:12:46 Uh, simulator training is what he- Yeah... what he was describing. 1:12:49 Now, for each one of those training or each one of those students, they have to go through the simulator, and that simulator, say, takes 10 minutes to 15 minutes. Right. 1:12:56 When you start to calculate out the time, they actually get about 30 minutes of- Of actual reps... of actual practical reps. Yeah. Totally. Right? So when you say, "Based on my training-" Mm-hmm... 1:13:06 what was your actual training? Right. And what did that actually feel like? I would not be confident saying that with that out loud. No As a defense for my, my freedom In my own defense, yeah. 1:13:14 Yeah In my experience level, like, well, have you ever had to use deadly force on somebody before? So tell me about your experience. Right. What experience are we talking about? Yeah. 1:13:23 And, and I'm sure you've had a ton of it in a ton of situations with a ton of different subjects and a ton, ton of different environments and whatever else. Explain that to me. Yeah. What is your actual experience? 1:13:32 That's what I would wanna be able to do. So going all the way back to the beginning of this conversation- Mm... 1:13:38 when I was, again, and I s- still have them, I just had one a week a- two weeks ago now to the day, where I had to actually go out and get c- police to come in because they would- dispatch wouldn't even dispatch it out based on some of the things that were happening, and I asked for an explanation. 1:13:57 I got an explanation, and based on what I know now, I know why I got that explanation, and it's a lot of what you just said. Mm. There is a, there's a lack of confidence, and it's also I don't wanna get in trouble. 1:14:08 Because that didn't get dispatched out, I cannot contact that guy because if that gets in, that turns into something where his, there's an intrusion of his Fourth Amendment right 'cause he acts up or he comes after me, whether he pulls a knife or not. 1:14:19 Like, I have to explain why I was there in the first place. Yeah. And this is gonna go in front of the DA, and it's gonna go in front of a judge, and it's not gonna be good. Right. 1:14:27 This is the reality of the world- Yeah... you live in, man, which is what that guy was- Mm-hmm... basically telling me. And I go, "I understand. I just want him trespassed. Can you at least do that?" 1:14:35 "Yes, we can do that." Right? Yeah, yeah. 1:14:37 I can, I can do that because th- that's the world we're living in now, and I don't think our, I don't think our citizens, and what I'm hearing is I don't think a lot of our police officers completely understand all the, all the goings on there, and it makes for this... 1:14:49 It, it, it, it, it creates this, this environment where nobody really knows, but everybody's really fucking pissed off. Right. 1:14:56 They're either pissed off, right, or they are completely unsure, which, neither of which are good- Mm... because there's no middle ground. Mm-hmm. 1:15:03 And, again, we're here, and I'm hearing these things, and it sounds like everybody's on the same page, but for whatever the reasons are, this stuff isn't getting out there the way it needs to get out there. Yeah, yeah. 1:15:14 And I, you know, I understand the reasons. You, I mean, bureaucracy is- Sure... a huge part of it or whatever else. But, um, I, I, again, I just go back to what are my expectations as a, as a citizen? 1:15:25 What should they actually be? Right, right. And then I try to put myself in other people's shoes, be objective here. Yeah. 1:15:29 Like, what should my expectations be of, you know, if a, from a police officer, what should my expectations be in terms of how I'm being trained, what the level of my experience- Yeah... 1:15:38 actually is, and how important this piece is, and how, um, misunderstood it is- Totally... until they're in the, in the wrong place. And I'll just say this, like, for, not for nothing. 1:15:49 Like, when it gets to you, and you talked about the money that needs to be spent in order to do this. Mm-hmm. Like, I'm sure you're not cheap, man. No. I'm sure you're not. [laughs] No. It costs a lot. 1:15:59 I'm paying for that shit. Yes. Right? Yeah. Every day. Yeah. Every, you know, like m- ph- through the city, through the county- Mm-hmm... and through the state, and through the federal government. Yeah. 1:16:07 Like- It's gotta come from somewhere... it's gotta come from somewhere, and it's coming from me. Yeah. I should want this. I should be advocating for this. I should be asking these questions as a citizen. Mm-hmm. 1:16:14 Tell me about the training and experience you- Right... you, your officers or our police department is actually having. Show me the money. Sure. 1:16:22 Show me where it's going or whatever else because it's not just this cop sucks, and he didn't know what he was doing. He's being a bully, and, you know, he's beating people up on the street- Right... 1:16:31 or, you know, whatever the case. There's a reason for that. Yeah. You know, it's funny too. I was, as I was getting ready for, like, today and this afternoon and, and, you know, how, how I wanna present some things. 1:16:42 Um, so, like, I'm, I'm coaching my, my 10-year-old son's Pop Warner football team, right? Fun. 1:16:48 And we have a requirement under USA Football, you know, standards that they have to have 10 hours with just a helmet and, you know, conditioning stuff, right, w- uh, 10 hours before they can put on full pads. And so I... 1:17:02 It made me chuckle because I was like, that sounds to me a lot like you have to do four hours of perishable skills training every so often and stuff. Yeah. 1:17:09 It's like, well, I could do 10 hours of have these kids play dodgeball with a helmet on. Mm-hmm. And that's not gonna make it safer for them to put pads on to play football. Right. 1:17:18 And I haven't taught them how to play the game. We haven't... We don't even know pad level yet, right? Yeah. These are 10-year-old boys. They've got... 1:17:24 You know, they, you ask them to sit in a half squat, and they're like, "Eh." Sounds good on paper. Yeah. Right? Like- 10 hours. 10 hours. I think there should be 10 hours. Yeah, 10 hours. That, that's good. 1:17:32 Tech- We're all in agreement. All, everybody's- Yeah... hands up saying aye. Well, well, it's like, yeah, but it's like, uh, during that 10 hours, what are you gonna do? And how many reps are they gonna get- Yep... 1:17:40 during that 10 hours? Right? What if the kid, what if the kid was sick that day- Yeah... and he didn't get to come? So I could tell the assistant coaches, I'm like, "Do not sacrifice reps for punitive burpees. 1:17:48 This isn't about... We'll do burpees at the very end." Mm-hmm. Right? You know? The, these kids are gonna move. We get the conditioning as part of the drill. Yeah. 1:17:56 And, and then so and then I'm like, why don't we just do that in law enforcement? Yeah. Like, why isn't conditioning- Conditioning happens in the practicing of the skill... a part of the skill. Yeah. Yeah. Yeah. 1:18:03 Like, what are we, what are we missing? And, uh, and again, that's just, you know. And look- Trying to break it out into all its- Yeah... constituent parts- And you-... thinking it fits together... 1:18:11 and there's probably folks in th- who are in law enforcement who are listening to this thinking like, "You've never worked inside of a police department." It's true, I haven't, and I, I can... 1:18:20 I've heard the stories about, like, you know, no. No's the favorite word from the training lieutenant or the captain, and I get it. 1:18:26 Like, there's, there's going to be inertia against you, but try to find interesting ways to work around it because, like today's theme about training and experience is not an argument as you just 1:18:39 broke out like that, which is, which was brilliant. It's like your training was 30 minutes in simulation. The rest of everything that you've done that, that, sort of those automatic processes and stuff, 1:18:57 what's the reason behind that? And if the reason behind that is that's just the way I was taught, that also is not an argument. So then it's like, no, really, why did you make that decision? Talk to me about it. Yeah. 1:19:10 And articulate it in a way where imagine yourself on the stand- Under oath in front of a live audience, jury And the totality of circumstances Yeah. And you're gonna be able to get that out- Mm-hmm... 1:19:20 right, in answers to questions? There's only so much I can do on a redirect to rehabilitate a witness. Yeah, to bring it back. To bring it back. Mm-hmm. 1:19:27 And I've had, I've had really good witnesses and I've had not so good witnesses- Mm-hmm... and witnesses on their own behalf- Mm... party witnesses. And the ones that are not good... 1:19:38 The one thing about trial is, is that, uh, yes, evidence matters, storytelling matters more. Oh, interesting. Yeah. And, 'cause we're, we're a story species. We love stories. Oh, if you don't have one, you're boring. 1:19:51 You don't have one, you, you gotta go to a party, you need a story, right? [laughs] Uh, you wanna listen to something on a podcast, you gotta have a story to tell. 1:19:58 You want to watch a good movie, better tell a good story. Um, trials are won by who has the better story. I don't want somebody else telling my story, man. Yeah. 1:20:06 And so if you can't tell your own story- Somebody's gonna do it for you... boy. And that guy's gonna tell a really bad version of that story, and that is what will leave the impression. 1:20:16 You can- On the jury of your peers. Yeah, your peers. Your peer court. Right, exactly. Yeah. Yeah, I had a, I, I defended a police officer. It w- the, the trial verdict did not go our way. 1:20:26 Um, the jury of his peers w- were, uh, uh, all... This was a male, male officer. The jurors were all female except one, and not to say anything wrong with that, but it's just to tell you- Just the way it w- worked out... 1:20:42 uh, just the way it worked out. 1:20:43 And their professions ranged from special education teacher to preschool teacher to nurse, and then the one male on the jury was, I think, early 20s, u- unemployed, uh, community college student. 1:20:57 And those- Making the decision on- Making the decision on that... the suspect Yeah. Mm. And it was like they weren't convinced by the story. And so, 1:21:06 uh, y- if you cannot articulate things like, "Well, in my training and experience," and be able to unpack that down to the granular level. 1:21:15 What I used to do in some of the, the times where I, you know, before I ended up where I am now, where I was just m- more, more teaching and less practice, um, I do... 1:21:26 I mean, this might be corny, but, like, I would read... I do a report writing section and I'd say, "I'm just gonna read to you from Steinbeck. We're just gonna read Grapes of Wrath." Oh, interesting. Yeah. 1:21:36 "We're just gonna read the last scene- Mm-hmm... right, where Rosa Sharon nurses the dying man." Yeah, I know it well. Yeah. Yeah. And there's the... It's like, I don't know, two, three paragraphs long. 1:21:47 It's very short, but it's so impactful. It's rich. Yeah. Oh my God. Right. So I read that and I'm like, "Okay. Did everyone picture exactly what it was that happened?" Everyone's like, "Yeah." And I'm like, "Okay. 1:21:58 None of us are John Steinbeck, right? We're not gonna write to this level. But doggone, man, we can shoot for this." Mm-hmm. Right? Should wanna be, yeah. 1:22:07 To be able to put yourself in the reader's shoes and illustrate what it is. True. True. 1:22:13 Put it in a different way is, like, you wrote a movie script for your, for your friends in the department, and you pick a friend to play the part of the suspect, and then you give them your report, that's the script, and then you say, "Go." 1:22:29 And if they get to a part where they go, "When you write that the suspect was actively resisting, like, what's my motivation? Like, what did I do?" 'Cause it doesn't say anything. 1:22:41 It just says actively resisted, or it was uncooperative. It's like, well, yeah, you know, most suspects involved in a use of force incident are uncooperative, right? You gotta give me something more than that. 1:22:52 Don't just give me the conclusion. Mm. Paint the picture for me, right? Do a little Steinbeck, okay? I j- I actually, like- You're getting an opportunity Yeah... take it. Tell, tell the story. 1:23:02 Tell me what hap- how did it feel? Mm. Not, like, in my emotions feeling, but, like, how did that feel when you put hands on that person? Well, how hard did they resist you, right? 1:23:15 And maybe we gotta use, maybe we have to break open a thesaurus to- This might be some adjectives that you can use in there... yeah, to find... Yeah. Maybe, maybe pull- Mm-hmm... is not the right word. 1:23:24 Maybe that was more of a wrench. Maybe that was more of a wriggle. Maybe that was more of a snatch, right? So there's a way to describe it with language. 1:23:33 Um, the body camera's great, but it doesn't capture everything, 'cause it only captures what the lens can see. Yeah. 1:23:39 And as soon as you're in a tussle with somebody and that body camera gets, you know, dislodged and is on the ground, it's only a microphone. Mm-hmm. Right? No one knows what the hell's happening. 1:23:47 So you're, yeah, you're, you're giving the soundtrack as whatever- Yeah. You've gotta tell your thing. And if you 1:23:53 can explain to members of the public who are not cops, 'cause the chances of a cop getting past jury selection on your trial is zero. 1:24:03 That person will be, will be challenged, and they will be, they will be asked to, to leave, right? 1:24:09 So you've gotta be able to explain this to civilians, and in a way where, you know, it's years afterwards, 'cause that's how long these things take, two-year statute of limitations. 1:24:20 That's assuming it doesn't get told, meaning if there, from the arrest, there is a criminal prosecution, the time for which that suspect has, as a criminal defendant, to file his civil suit against you is told. 1:24:34 It's on timeout until that criminal process is done. Then it's two years, okay? Once it's filed, you might not testify a deposition for another six to nine months, and then- It's an eternity, man... it is an eternity. 1:24:47 And if you're in the Eastern District, uh, Court of California, w- this has got the biggest backlog in the, backlog in the country, you are going to trial maybe two years from that point. 1:24:56 I mean, it's, like, gonna take forever. So by that time, don't you want a good report to be able to refer to? And you get to refer to it as often as you- 100%... possibly can, and you can prepare from it, you know? 1:25:06 When was the last time you read your report? I refreshed, I refreshed myself on it this morning. Okay. 1:25:10 And then you start a- asking these questions, and then you can relive that moment and make the jury live it at the same time. Like, you gotta be a little descriptive, you know? I love this. 1:25:22 This has given me a lot to thi-think about there just in terms of literacy levels- Yeah... of the people that are coming into the profession now or that it c-currently exists, like what's in the pipeline. 1:25:32 I mean, you mentioned Steinbeck. Man, I don't even know if they read Steinbeck anymore. I don't think they do anymore. And we're having arguments about books and- Yeah... you know, on certain subjects that- Oh, yeah... 1:25:41 they're in the libraries of our schools when we- Yeah... should be like, "Did your kid even read- Man... Grapes of Wrath?" No. Right? Like, yeah. You know? 1:25:47 My goddaughter is a freshman going into freshman in high school, the same, same place my buddy and I went, that we're alums from. 1:25:53 And you know, my, my summer reading going into my freshman year of high school included Lord of the Flies. Yep. Same. Among, among other books, yeah. Mm-hmm. And I, I... he showed me her reading list, 1:26:06 and they're like graphic novel kind of thing. And I was like- I have a 23-year-old, and there was a lot of that... and like, "This is not, this is not good." 1:26:17 Um, because it's, it's, it's not that those things aren't entertaining, it's that they're dumb. It's not good literature. So you know, you gotta exercise your brain a little bit. And it's like, why? 1:26:28 You know, when you read something that's good- You know it... oh my go- Yeah... you're like, "Daggone, man." Yeah. That is... I can't read- I can't put it down. Yeah. Now I wanna read the next one, yeah. 1:26:37 Here's not like, you know, just to do a, a, a cl- Old Man and the Sea, right? Okay, there, uh, Hemingway, Old Man and the Sea. 1:26:46 The old man, old fisherman, this is ma- I think after maybe the first night, he falls asleep in his, in the, in the dolphin that he, uh, ends up killing, he's, that he's eating from as he's trying to haul this, this big sailfish in. 1:26:58 And I think he falls asleep with his, with his face in the guts or something like that. And then, uh, and then he's- Mm-hmm... woken up because the, the marlin or the sailfish that he's got freaking starts to dart again. 1:27:12 Exhausted. Starts to take off. He's exhausted. He's totally exhausted. Yeah. 1:27:14 And he, and the way Hemingway describes the way that the line was burning through the guy's back and then his hands, and as he's vying to get... He's, you know, fishing with his, with his hands. 1:27:24 And you, you read that and you're like, "Oh my God." Yeah. That's the intensity of that. And you can picture it. Mm-hmm. It's a v- it's a visual picture. We speak in a way to make the other person see images. 1:27:38 That's how we think. That's how we communicate. Um, and so, like, you gotta figure out how, what's your voice that you wanna write in, uh, and then write the relevant facts. 1:27:49 And how do you know what the relevant facts are? This goes full circle back to, well, you know, is it an element under the applicable civil jury instruction? 1:27:58 Then yes, then it is relevant, and you do need to figure out a way to describe that. Talk about it. Yeah. And share that around with your peers and ask them, be like, "Does this make sense to you?" Right? 1:28:08 It doesn't have to be this like, you know, it doesn't have to be Shakespeare. It's just gotta be something that someone can read and say, "Yeah, I know what's happening there." Mm-hmm. Right? 1:28:18 And- And then it's on that person to try and make something up that isn't in that report. Right. Right? Right. To make you look bad or put that in the brain- Yeah... of a judge- Yeah... or jury. 1:28:28 Yeah, which is why it's, it's a small throwaway note. That's why I think the jargon is so terrible about guiding to the ground, escorting to the ground, assisting to the ground. 1:28:37 You know, I deployed my taser, it did not have the desired effect. It's like, you're, you're not wearing a lab coat with a clipboard looking for desired effects or not, right? 1:28:45 Someone was attacking you and you shot them in the chest with a, with a weapon that shoots electrified harpoons. Mm-hmm. Right? You shot them, and what did they do once you shot them? 1:28:53 If it didn't have the desired effect, what does that mean? Does that mean they tore the thing from their chi- Tore the- He tore, he tore the barbs from his f- from his own chest- While still moving- While-... 1:29:03 still advancing... while still advancing on me With a, with the knife in his hand. Yeah, with the knife in his hand or, and continued to attack, continued to level his- Yeah... his assault. 1:29:10 It's like that, if I read that in a report, I'd be like, "Oh my God," you know? Yeah. Um, you get stuff that's like... And tell me when, you know, when we need to wrap 'cause I can keep going on this stuff. 1:29:21 [laughs] But you know, I, I've got, uh- No, these are the practical examples- Yeah... I think people wanna hear. Sure. Yeah. 1:29:27 So, like, a good, a good buddy, uh, a good buddy of mine, and I won't, I won't call him out, but those, those on the inside will know, uh, he got, he got, uh, ambushed in a, in the sally port when he was booking somebody. 1:29:40 Mm. Bad guy. Um, he was cooperative with the search the whole time through, and then as he was in the sally port, he's like, "Oh." He had already uncuffed him 'cause he's gonna put him in the holding cell. And 1:29:53 he's like, "Oh, hey, I didn't check your shoes," right? The guy still had his shoes on. The guy was super cooperative leading up to that point, and he's like, "Hey man, can you take your shoes off real quick for me?" 1:30:01 And the guy's like, "No." Mm. And it's like, "Oh, here we go. You need to take your shoes off now." "No, I'm not taking my shoes off." And before that got much further down the line, uh, this guy- It's on... 1:30:13 went both hand- It's on. He went both hands up to my buddy's throat, choking, arms lengths, like, man, locked out- Mm... up against the wall. 1:30:20 Uh, my boy can fight, so there was, there was a tussle, uh, and, and luckily- Kerfuffle... it was a kerfuffle. There was a spat. [laughs] And he got the upper hand of it, 1:30:32 and the suspect was eventually subdued, and put in the holding cell and all that. And then, you know, he had to write a report about it, you know. And so the way it was described, the, the ambush, the assault- Mm-hmm... 1:30:43 it was very rapid and violent- Mm-hmm... and, and- Summed it up there... and unforeseen. Yeah. Um, uh, was the, the suspect moved his hands toward my face and neck area. 1:30:54 And so I just demonstrated it to him where I was like, "Was it like this? 'Cause I'm moving my hands towards your neck and face area. Like, this is me moving my hand towards your neck and face." 1:31:03 And he goes, "No, it didn't look like that at all." It didn't look like that at all. He, he was choking me. And I go, "Well- Well, tell me how it went... 1:31:07 I didn't, you wr- I don't see the word choking anywhere in this thing. And I know I've... We've seen the video. We know you were choked, right?" He goes, "What? 1:31:16 It happened so fast, I didn't know what was going on, but I just felt this pain and I couldn't breathe, and my-" Afterwards, my, my throat, like, really, really hurt Write that down And I was like, that's a great bracket sentence or a great par- parenthetical description of, 1:31:31 suddenly and without warning, the suspect attacked me. I felt I couldn't breathe. My neck hurt, right? E- that's just a simple, like, my neck hurt. You could even come up with, like- Sure... 1:31:43 a mythosaurus and it hurt, and we couldn't come up with a better way of describing it. Uh- Get out my pocket computer... 1:31:47 yeah, and then, and then, and then we fought, and the suspect fought intensely for however long it lasted. Now, you could go by memory how long did it last, and your memory's gonna be like, "I don't really know, man. 1:31:59 It seemed like it took forever." Or you could watch the video and just say, "That was like 28, 28 seconds of fighting." For one minute and 13 or half seconds. Yeah. Right. Right. 1:32:07 And then put a period on that, and then put a parenthesis of, in the moment, I was, I was in such pain and surprise, I didn't know that the suspect was choking me. 1:32:17 Having looked at the video, the suspect had me, uh, at, with arms, arms extended and locked out with both hands wrapped around my neck, period, parenthesis. I can, I can pretty much see that. 1:32:27 I have the picture in my head. Yeah. Yeah, totally. I actually think I know who you're talking about. Yeah, yeah. Um, that said- Yeah... um, I get... You- that's... When I said practical example- Yeah... 1:32:37 I mean, we talked about a lot of things- Mm-hmm... and you said about, like, what not to do. Mm-hmm. That was perfect. Like, that's how to write, like, Steinbeck- Yeah... 1:32:43 right, on a thing that probably happens pretty commonly. It happens all the time. Right? Yeah. So I'm just going, like, why are, why, why am I hearing... Like, why is that officer, who at the time I know- Mm-hmm... 1:32:55 is a pretty experienced dude- Mm-hmm... why is he hearing that from somebody at the f- at for the first time- For the first time whatsoever... this deep, this deep into, into the thing? Yeah. Right. Exactly. Yeah. 1:33:03 And, and had some- and had something... So to my knowledge, no lawsuit had ever come from it. Um, but had something come from that, then for the first time ever, he's going to say, "I was being choked." 1:33:17 It's going to be under oath at a deposition, and the first question and follow-up that any experienced plaintiff's attorney's going to ask is, "I don't read that in your report. Did you include that in your report?" 1:33:27 Why don't you tell me about that? And he goes, "No, I didn't include it in my report." "Aren't you trained to include all relevant information in your reports?" This isn't your first incident- Yeah... 1:33:35 based on these other things. Right. Like, you're experienced. Exactly. Now we start to pick through this. "So do you always write reports where you don't include key facts?" Oh, man, we... Yeah. Yeah. 1:33:44 I mean, that's their job. Yeah. And, and there is- And you're sitting there as the defense attorney going, "Ugh, here we go." Yeah. And I can- 'Cause now I have to c- now you have to walk in- Yeah... 1:33:52 and try to unfuck that. Yeah. Right? And that's gonna sound like you're coaching a guy on the stand. I know. And- And I can't lead him on redirect. I have to be able to ask it open-ended. 1:34:01 We have to be able to explain it. And by the way, at a deposition, uh, the guy gets seven hours with you. [sighs] Right? That's what the rules allow. So you gotta keep going over and over and over again. 1:34:12 So he's gonna go, he's gonna go. And at some point, I can, I can, at some point I can be, I can be- You jump in... I, I jump in and be like, "You're done. You're done asking that line of questioning." 1:34:19 And he can say, "I'm entitled to keep asking him." And I go, "Well, then you're gonna go get... I'm gonna get a protective order. We're gonna suspend now. We're gonna have to do all this stuff." 1:34:27 Then I gotta go in front of a magistrate 30 days later, who's gonna say, "Mr. Downs, it seems like this is a relevant line of inquiry." And I'm gonna say- Because you said, you said hands-... 1:34:35 "Your Honor, he's just being a jerk." Yeah... you said hands towards your face and choked. Yeah. All you had to do- All you had to do is write choked... was just write it out. It's just one word. Write out- Yeah... 1:34:42 what was going on there, man. Yeah. So that's fraught with problems because now it's a credibility issue. And, you know, the euphemisms, those will get called out. 1:34:50 And, and, and another practical example, you know, at trial, uh, my, my client, my officer's on the stand, and, uh, I'm defending his testimony at trial. And, uh, he had written in his... The, the... 1:35:06 We won this trial, by the way. So the, the suspect, uh, the call came in as, uh, basically, uh, um, the guy was threatening to kill his niece. And when the officers arrived on scene, uh, pre-body camera, uh, 1:35:23 th- they observed the suspect on the front lawn of this house with a big tree branch in his hands, and he's freaking shouting at everybody, "I'm gonna put a bullet in your head. I'm gonna put a bullet in your head." 1:35:30 But going nuts. So officers approach him. They say, "Put that down." He doesn't. Mm-hmm. He starts advancing towards the officer. Uh, he gets taken down to the ground pretty violently. 1:35:43 I think arm bar-esque kind of, kind of technique to use it. But the way it's written in the report is that, uh, uh, I assisted the suspect to the ground. So- Face first. I... Yeah. Face and chest first. Yes. 1:36:00 And [laughs] result- resulting in, in some good abrasions and bruising and some other stuff, right? It was a rough assistance. Uh, [laughs] so, so I- So contradictory... totally. Yeah. 1:36:11 So the, uh, the attorney had kind of danced around that at deposition and... But didn't re- for whatever reason, like, he was... I think he was just saving it for trial. 1:36:25 And sure as shit, you know, he's cross-examining the officer, and he goes... And at that time, he- so he's walking through chronologically. 1:36:35 And he goes, "And at, at that time, that's when you, that's when you made contact with my, with my client." And he goes, "Yeah." And he goes, "Now you, you wrote a report following..." Now my radar's up. 1:36:45 I'm like, "Here it comes. It's coming right now." And he says, "In your report, you wrote that you, uh, that you assisted my client to the ground. That's what you wrote, right?" And he goes, "Yeah." 1:36:55 And he goes, "That's not, that's not actually what hap- did my client ask you for assistance?" Mm-hmm. "No, he didn't." 1:37:02 "In fact, you did not assist my client to the ground 'cause he didn't need to get to the ground, did he? He wasn't asking you to help him to get to the ground." "No, he didn't ask me to help him get to the ground." 1:37:12 And we had prepped this. This, this was like... I was like, "There's gonna be one, one chance if he doesn't ask the next question correctly, you can jump through that window-" Yep, you're done... 1:37:20 "and flip this thing around." You're done. "Or we're-" Yep... "or our credibility is shot." Mm-hmm. So I was like, "So you better be ready to jump through that window." And- You got lucky. 1:37:28 The guy asked the question in a way that was open enough for the que- For him to go- Yeah, so the question was something like, was like, "It's actually true that you violently tackled, uh, my client to the ground?" 1:37:40 And he goes, "I, I don't deny that I tackled your client to the ground." And he goes, "Then why did you write assist?" That's open-ended. That's a no-no. You can't ask- As a, as an attorney... 1:37:51 as an attorney, you're crossing an enemy- When you're there and you're starting to go there... and you ask the why 'cause you wanna argue, you give the witness the way out. So it's either a rookie move or- Yeah... 1:37:58 an emotional response. It was emotional. And so, uh, 'cause it was the way, like the, the build-up and everything, and he just, he like slipped- He, he- He like slipped at the moment... he went right to the edge. Yeah... 1:38:08 he was just like, "Well, so why'd you write assist?" Blew it, bro. Yeah, yeah. "So, so you're writing something in your report that didn't happen." 1:38:13 He goes, "I wrote my report mostly focusing on the fact that it was reported that your client had threatened the lives of several people at the scene, and I used a... 1:38:26 I, I admit I used a euphemistic shortcut to describe what had happened. I was more focused on establishing the important parts of the crime that your- How we got there... that your client had committed." Yeah. 1:38:38 And then the guy was like, "Damn." [laughs] "Fuck." So, so there's a way to kinda, kinda do it, and then you gotta read and feel the jury to be like, "Okay, they... the jury liked that response." Mm-hmm. 1:38:50 But as it was going up to that point, you can feel... We're sensory animals, man. You can feel when someone feels uncomfortable about something. It was definitely like, "Er, what, where is this... 1:39:02 Oh, did this guy lie- Mm... in his report? Did he try to make it sound like he actually did?" From the juror's perspective. Yeah, 'cause they don't know cop jargon. They have no idea. Yeah. Cops know cop jargon. 1:39:13 Cops know that assist to the ground means you took him down. Mm. Right. So then you juxtapose that with reality, and a civilian hears that, they're like, "Why are you being weird?" Right? 1:39:24 "Why don't you just, why don't you just say it?" You know? Use of force is use of force. Yeah. You gotta be able to talk about it. Yeah, exactly. 1:39:30 Like, if I go home today and, and my wife asks me how my day was, and I go, "Well, it wasn't a terrible day," and she's gonna be like, "Well, what happened?" I go, "Well, I mean, it wasn't terrible." You know? 1:39:38 Like, don't, don't you understand what I mean by that? I'm sort of just hinting at something, you know? Like, the, it j- There's more to the story. Yeah. 1:39:45 She's gonna be like, "Maybe, maybe you didn't go to the CALFEA conference today." Well, well, did anybody die? Yeah. [laughs] Yeah, right. Yeah. Why are you being such a weirdo? Yeah. [laughs] You know? 1:39:54 And, uh, and so, so that is, that's, that's of paramount importance is, as from a practical standpoint, tying all this together, is that it will make sense 1:40:07 to the officer to write to the objective facts that are relevant to the applicable legal framework, and to get to that point, you gotta start at the source, which is understanding and reading case authority, being more involved with organizations, whether it's CALFEA, whether you find other like-minded people in your department who are, like, interested in case law, and be like, "I, we need to do some more to figure out, uh, you know, how to play the game that we, that we're, that we're playing." 1:40:34 Yep. It's an em- it's a critical game. It's a life and death game. But to play it to the most effective way possible, it's better for everybody. 1:40:41 I think one of the themes in, uh, one of the presentations yester- yesterday was your tactics, their laws. Yeah. Right? And so this is- Yeah... 1:40:48 this is very t- a very tactical approach to making sure you hit all the proper steps- Absolutely. Yeah... and don't make any wrong turns. 1:40:55 'Cause this is all gonna reverse engineer into a, into a tactical decision-making process and a, and a tactical execution plan. Yeah. 1:41:02 And, uh, if there's a gap between the two, if there's a gap between the understanding of the law and the tactical decisions that are made- It's a problem... then it could be, yeah, it could be a problem. 1:41:11 Could be a problem. Yeah. Or you're only accidentally right. Ooh. Ooh, that's another one. Yeah. I don't wanna... That's not the world I wanna live in- No... if I'm in that situation, man. No. 1:41:21 With s- with the gravity that exists. Yeah. 1:41:24 Such a good job at, again, uncomplicating the very complex stuff, and, uh, I mean, I could sit and I'm sure you have a million stories which, you know, we could go through, and examples of where not to do things, you know, how to make sure you're talking about things that actually didn't happen- Mm-hmm... 1:41:41 which, you know, led to why I made my decisions, right? Yeah. What they didn't do- Yeah... which, based on my experience, right? And then this. Yeah. You know? Usually- Yeah... 1:41:50 uh, like, um, typically I will see this 90% of the time, I will see this happen. Yeah. This person did not do that- Right... which led me to my next step of- Yeah... 1:41:57 as I've described in this report so eloquently- Exactly... like Steinbeck or Hemingway. Yeah. 1:42:01 Um, I, I, I, uh, I know it sounds like a lot, so people listening to this, you know, if they're, if they're still with us, as somebody from the outside looking in- Mm... 1:42:09 man, like, th- there's so much clarity in that for me, right? Yeah. And again, I, I have fortunate... 1:42:15 I'm very fortunate to have some really great experiences, like just sitting down in front of you today and, and trying to understand it more for f- partly for my own self-satisfaction, but at the same time, to get it out there to so many of my friends and people that I know that are connected to law enforcement, whether they're, they're, you know, they, they're officers or they're wives or husbands or whatever in that space, or they support them in training companies or, you know, whether that's, again, on whatever skill- Mm... 1:42:42 they're trying to learn or whatever thing. And I, uh, uh, I know it'll reach people in a way that make them think a little bit differently about maybe even how they're articulating their own instruction- Mm-hmm... 1:42:52 and maybe asking more questions about prior to going into even the group that they're teaching, like- Mm... "Hey, how..." And you're, and just to get them to think about it. Yeah. 1:43:03 "How, how does this apply, or how, how could this impact what you do on the job? Let me ask the question before I teach it this way, 'cause I might articulate it a different way- Mm-hmm... 1:43:10 as to not create any confusion," right? Or, or whatever, or checking with the right people. 1:43:15 So there's a relationship-building piece that goes on there, which again, going back, I'm sure these, these folks that you're defending are like, "This is my best friend in the world," like, and then- Yeah... 1:43:22 you know, like the text mess- Yeah, you get tight. Yeah. Yeah, you get pretty, you get pretty tight, and then you wouldn't be doing this. You're... I can tell you're the guy that-... reciprocates that in some way. 1:43:30 Like- Honestly... "Look, man, I got you." Yeah. They put... You're the leader. Yeah. You know, you, Marine Corps. Right. All, all the stuff, you know, the kids, the football team. Yeah. 1:43:38 So let me put my arm around you, make sure you're good. And then let me come back, let me come back to places like this and do, and do things like- 100%... like this to- Give back... to sit. Yeah. Yeah. Absolutely. 1:43:46 Because it's, um... Yeah, 'cause it... I mean, at, at a, at a very deep level, uh, it mat- it matters what the relationship is between the citizen- citizenry and its government. 1:44:00 That's the whole, that's the whole flipping experiment that we're trying out right now, right? Is, is can you, can you organize a society this way and do it? And the police is, it's such a flashpoint issue because 1:44:15 police officers are the personification, they're the embodiment, the physical embodiment of the state's authority. Mm. That's what makes it visceral, right? 1:44:24 So if there's something in society, whether founded or unfounded, that creates suspicion around the integrity of the law enforcement- The integrity, yep... I can stand by. Right. Right? It's bad for everybody. 1:44:38 I mean, the, the institutional... The reliability and integrity of institutions is, is critical to our ability to organize a free society. If we do not believe our institutions, we become unmoored. 1:44:53 We're, we're- We learned that in spades. Oh. And, and so... And, and it's these, it's these strategic Lance Corporal kind of events where, like, it's the one guy in Minneapolis- Mm-hmm... 1:45:06 who got on video kneeling on a dude's neck- Mm-hmm... is the, is, is cause for, I don't know, billions- S- cities to be burned down... billions in costs and lives ruined and et cetera. 1:45:21 And it's like that, that had an outside- There's a lot of weight there... that had an outside effect, you know? Yeah. And, um, and so we should, so we should just look, look at that and say... 1:45:32 Not, and, and, and reaction should not be, it cannot be, "Well, I'm just not gonna do anything then." Mm-hmm. Because it's like, "No, man. Like, we need you." Mm-hmm. Right? People need you. My mom calls 911. Yeah. 1:45:45 My daughter calls 911. Right. You want cops showing up. Yeah, I want- You don't want, you don't want them to be like, "I don't wanna get sued. I don't wanna end up like that. I don't wanna get prosecuted." 1:45:53 And it's like, you know... And, like, my little brother, um, you know, so my, my little brother got shot in the head, like, right after he finished his probationary period. He survived it, uh, miraculously. 1:46:10 And, like, I know that kid's heart is freaking good, right? He wants to do good. He would give everything he's got. And there's a lot of cops like that- Mm-hmm... who would do that. My dad was like that. And 1:46:29 that's important. Um, and so it means something to me to be able to be involved in the process of trying to keep the relationship between the state and the citizenry as, as amicable as it possibly can be- [laughs]... 1:46:45 through this, through this weird federal litigation process that we have. 1:46:48 Even if it's that one piece that I get to be involved in or do stuff like this, sit down with cool people like you and talk about this stuff, you know? Well, it's important to me, too. Yeah. 1:46:57 And there's players in all of it, right? Yeah. There's all these different levels and layers, and that's just where the, kinda how the podcast has gone. Like, it's just we're just digging into... 1:47:06 'Cause, like, I think I get a good understanding of one layer of this, and maybe I do, and then I get introduced to the next layer. I'm like, "Whoa." Yeah. "I got questions here." Yeah. 1:47:15 Like, "What is going on with this?" And because of people like you just described- Mm-hmm... that's how I get introduced to them. Yeah. And that's how these conversations come up. 1:47:24 So I, I mean, I consider myself, like I said, extraordinarily privileged and, and fortunate to be able to sit down. And so, again, I just wanna say thank you for sharing your time- Of course... 1:47:32 you know, and, and, and energy, right? Yeah. And, and passion. Yeah. Uh, examples. Um, helping my, you know, alligator brain understand things better. 1:47:41 [laughs] 'Cause, you know, I think there's a lot of folks out there that listen to this a- and watch this that, uh, they, they want things. 1:47:48 They, they wanna hear the conversation, and they wanna hear it in a way that they can, they can assimilate it- Mm... whether they're cops or, you know- Mm-hmm... 1:47:54 citizens or, or whatever the case is, whatever they're doing in life. Yeah. Uh, they're... It's interesting. 1:47:58 There's actually a really broad audience, and it's always important to me to make sure that whatever we do, we bring value to them, and I am absolutely convinced you did that today. Well, thank you. 1:48:07 So, so thank you for that. Yeah. I appreciate it, man. Yeah. Thanks for having me on. Yep. You got it, man. I appreciate it. Yeah. You got it. Thank you. 1:48:11 [upbeat music] Thank you for tuning in to this episode of Iron Sights. 1:48:15 If you enjoyed our conversation, you can support our mission by hitting the subscribe button, leaving a review, and sharing the podcast with a friend. I'll see you on the next episode.
