in this issue . . . When they come to kill the kids: The critical need for "Immediate Action Rapid Deployment" in school invasions   Covert Video Surveillance   Investigator’s Use of the Polygraphs

 

The critical need for "Immediate Action Rapid Deployment" in school invasions

By Rick Armellino Baker Ballistics, LLC

Rick Armellino is the Director and Chief Executive Officer of Baker Ballistics, LLC., the manufacturer of the Baker Batshield® personal ballistic shield. He has over thirty years experience in the body armor industry, including Director of Research and Development and President of American Body Armor and Equipment, Inc. Rick's body armor designs have saved over forty American LEO's from death or serious injury during attacks by gunfire. Recently, Rick has partnered with noted ballistic shield trainer, Lt. Al Baker (NYPD, ret.), to advance the concept of Immediate Action Rapid Deployment (IARD) tactics for use by first responders in the approach to armed and hostile individuals in public places.

The nightmare scenario Two armed men carrying handguns and knapsacks reportedly have entered a local elementary school. You are the closest responding patrol asset. What will YOU do? Upon your arrival, what happens next greatly depends upon the policy of the law enforcement agency that signs your paycheck. What you would do if your child was in this school may be vastly different than what your department expects you to do. Here’s a few of the most common patrol first responder actions: 1. Not hearing any gunfire, establish an outer perimeter to prevent escape and call for backup. 2. Hearing gunfire, wait for the predetermined amount of officers to arrive, make a plan, and enter the structure in accordance with your agencies’ active shooter response procedures. 3. Whatever you want, as your agency has no formal policy, training or equipment. Historical background Statistically, shootings have killed far more children at school than fires. Hundreds of millions of dollars are spent protecting school children from the threat of fire, while minimum training and resources are devoted towards protecting them from gun violence. For those who do not believe that school massacres are a realistic threat, there have been over forty documented school shooting rampages, the great majority of them occurring in the United States, beginning back in 1966. The phenomenon of the suicidal killer has steadily increased in both frequency and victims. In addition to homegrown deranged predators, the U.S.-based radical Islamic terrorist cell now must be considered a credible threat to the safety and well being of our school-age children. It is well known that Al Qaeda leaders and followers consider American schools prime targets of opportunity. They know that a traditional delayed tactical entry following a period of protracted negotiation allows ample opportunity to stage the planned massive final carnage after the arrival of the worldwide media. Containment & negotiation tactics at school: A deadly policy Recent history has proven that the traditional police first responder tactic that requires the establishment of an outer perimeter while waiting for backup usually assures that the planned death of innocents will occur when the intruder is homicidal and suicidal. It is a common law enforcement belief that most armed school invaders probably wish to live and escape, and that aggressive actions initiated by first responders could “set them off”, and make the situation worse. Nothing could be further from the truth. The decision to utilize containment and negotiation as automatic “default” tactics when the intruders’ motivations are not known is extremely risky, especially when innocent children are the potential victims. In the case of a homicidal and suicidal individual, waiting for them to go active and begin killing must not be the signal to begin aggressive pursuit and containment. By then, it is too late. Every armed and hostile individual entering a public area must be considered to be homicidal and suicidal, unless credible information is known to the contrary. This knowledge cannot be quickly ascertained from a distance. The more time an aggressive police approach takes to happen, the longer the armed intruder has to control the environment and work their plan, the bolder the predator will become and the more unlikely a bloodless outcome is to occur. From the moment an armed, homicidal and suicidal predator enters the building, the end plan is known only to them. In the case of a school intruder, they usually do not plan to leave the building alive. Nor do they plan on dying alone. It becomes the duty of the first responder to interrupt this murderous plan to minimize carnage at the earliest possible moment. In the case of a terrorist school takeover, any delay of the first responder to actively engage the intruders will guarantee that ultimately, many innocents will die due to the delayed aggressive response. The sound of gunfire will not be heard upon arrival of the patrol officer, it will be eerily quiet as the terrorists gather children into a central location and set up bobby traps to slow down future rescuers. We know this, and so do the terrorists. Law enforcement policymakers who do not allow first responders discretion and encourage them to approach armed school invaders are not delivering the quality of public safety their citizens deserve. In a dynamic school invader situation, first responding patrol officers are likely the only people on scene early enough to save innocent lives. But only when they are authorized, trained and equipped to do so. Patrol-level “Immediate Action Rapid Deployment” (IARD): An effective aggressive tactic The sooner first responding officers can establish close physical proximity to a homicidal and suicidal individual, the quicker the incident comes to a conclusion. In the majority of cases, these psychopaths kill themselves as soon as police gain close proximity, abruptly ending the carnage. Swift, aggressive contact is the key to interrupting a deadly plan of mass murder. An active shooter being pursued by police during a running gun battle is better than allowing the predator unlimited mobility and time to accomplish their planned murderous activities. Recently, an off-duty officer in a large Salt Lake City shopping mall, armed with only a handgun successfully chased and cornered a well armed active shooter into a side alcove, interrupting the rampage and restricting his mobility. Responding on-duty officers were swiftly able to back-up the off-duty officer and kill the shooter. Prior to the running gun battle with the pursuing off-duty officer, nine innocents had been shot and five died. Not one additional citizen was shot after the shooter focused his attention towards this aggressive and heroic officer! A note on modern equipment now available for patrol-level IARD During the nightmare scenario of an armed school intruder, every second counts. Police administrators must consider empowering, training and equipping patrol officers to conduct “Patrol IARD” if the modern delivery of public safety and the saving of innocent lives is the goal. The advent of the lightweight Baker Batshield® portable ballistic shield has made this patrol operation possible with a minimum of training. An amazing balance of first responder speed, accuracy, and ballistic protection has been achieved. First responding patrol officers now have the ability to utilize progressive Immediate Action Rapid Deployment (IARD) tactics by approaching armed individuals prior to, or during active shooter emergencies. Public safety is delivered in accordance with public expectations. Visit www.bakerbatshield.com for complete information, including live-action video demonstration.

 

By Jack Ryan, J.D. Reprinted from PATC An investigative tool which causes a great deal of discomfort for agency employees is the use of covert surveillance equipment.  Investigators should consider the ramifications that may result from the use of covert video cameras before employing them.  These ramifications sometimes go far beyond legal ramifications due to societal thoughts that covert video is one of the most invasive techniques of investigation available.  The legality of covert video surveillance rests largely in the nature of the area under surveillance.  Is the area one where a person would have an expectation of privacy and if so, is that expectation of privacy one that society is willing to accept as reasonable.  A recent case from the Supreme Court of Alaska is instructive as to the analysis when dealing with an employee’s right to privacy from covert video surveillance.i  In Cowles, University of Alaska Police officers received information that the University’s box office manager was stealing money from ticket sales.  The police, without obtaining a search warrant, installed a hidden camera in an effort to catch Lindalee Cowles in the act of stealing money.  Prior to installing the camera an audit was done which verified a substantial cash shortage from the box office.   The video surveillance lasted for two and a half hours on a Monday morning and was successful at catching Cowles in the act.  The court made note of the fact that Cowles’ desk, which the camera monitored, could be seen through the ticket window as well as from an open interior door to the office.  The court further noted that there was a constant flow of employee traffic around Cowles’ desk throughout the surveillance. In its review of the surveillance the court pointed out that the test used to determine whether a particular technological monitoring is a search is the “expectation of privacy test.”  Specifically, did the person have an actual expectation of privacy and is that expectation one that society is willing to accept as reasonable.   The court concluded that Cowles did not expect her activities to be monitored therefore she had a (subjective) actual expectation of privacy in her office.  The court then focused on the public nature of Cowles’ office in concluding that Cowles’ expectation of privacy was not an expectation that society would be willing to accept as reasonable.  The court noted that activities that are open to public observation are generally not protected by the Fourth Amendment.  Similarly, “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”   In analyzing whether Cowles’ expectation of privacy was one that society would be willing to accept as reasonable, the court noted the visibility of Cowles’ desk from both the ticket window and interior of the office.  The court further noted the constant traffic of employees around Cowles’ desk.  The court also pointed out that “when an individual enters into an employment situation with high security requirements, it becomes less reasonable for her to assume that her conduct on the job will be treated as private.”  The court found that since Cowles’ job involved the fiduciary responsibility of exchanging tickets for cash, she sat in a high security position with a diminished expectation of privacy. A case from the Court of Appeals of Ohio is also instructive.ii Brannen v. Board of Education involved a covert camera placed in an employee break room.  A supervisor, suspecting custodians were loafing in the break room for a large portion of their shift, received permission to install the covert camera.  The camera was successful in catching the employees taking unauthorized breaks.  After accepting discipline the employees filed suit for, among other things, a violation of their Fourth Amendment rights. In analyzing the case, the court asserted: “An employee’s expectation of privacy in the workplace must be assessed in the context of the employment relation on a case-by-case basis.  The operational realities of the workplace may make some employees’ expectation of privacy unreasonable.  A public employee’s expectation of privacy in the workplace may be reduced by virtue of the actual office practices, work procedures or regulation.  Some government offices may be so open to fellow employees or the public that no expectation of privacy may be reasonable.”iii In reviewing the circumstances of this case, the court concluded that since other employees had free access to the break room at all times, no employee could claim an expectation of privacy in the area. The court determined that even if the custodians had been able to establish an expectation of privacy, the search would have been reasonable.  The search was justified at its inception since the purpose of the camera was to confirm or deny suspicions that the custodians were taking the extended breaks. The court pointed out: “The mere fact that the observation is accomplished by a video camera rather than the naked eye, and recorded on film rather than in a supervisor’s memory, does not transmogrify a constitutionally innocent act into a constitutionally forbidden one.” A covert surveillance case from the 9th Circuit Court of Appeals establishes the important distinction between administrative and criminal investigations.  In Taketa, a DEA agent reported to her supervisor that another agent, Taketa, had shown her how to turn an authorized pen register into an unauthorized wiretap to record conversations.  Agent Taketa shared an office at McCarran Airport in Las Vegas with Thomas O’Brien of the Nevada Bureau of Investigation.  O’Brien was also involved in the illegal wiretapping.  The DEA began an internal investigation and entered the airport office using a key from headquarters.  The investigators examined the feasibility of putting in a covert camera the next time the Taketa sought authorization for a pen-register.  In its review of this first entry, the court applied the standards announced in O’Connor v, Ortega in holding that the first entry was reasonable. In May, Taketa sought such an authorization and the investigators returned to the airport office.  Unable to find the recording equipment, the investigators had to force open O’Brien’s door with a plastic card to gain entry.  The investigators found the recording device. They then placed a covert camera in the office.  This investigation led to the arrests of Taketa and O’Brien.  In its review of the covert surveillance, the court held that the video evidence had to be suppressed.  In so holding, the court determined that since O’Brien’s office had been locked, investigators should have obtained a warrant before entering.  In addition the court concluded that once the investigation changed from an internal investigation to a criminal investigation, the standards from O’Connor v. Ortega no longer applied, rather the more stringent standards of probable cause and a search warrant were required. CITATIONS: i Cowles v. Alaska, 23 P.3d 1168 (Alaska 2001). ii Brannen v. Board of Education, 761 N.E.2d 84 (Ohio Ct. Appeals 2001). iii Brannen, at 91 (citing O’Connor v. Ortega)

By Dan Sosnowski

Provided by PATC

 Increasing population growth, crime rates and new resistance to expansion of community services have all contributed to increased case loads for law enforcement.

The polygraph, when properly used as an investigative tool to eliminate the wrongfully accused and identify the guilty, can provide the investigator with a more efficient and productive use of his case time.

Unfortunately, misunderstanding and misuse as to the polygraph’s role in the investigative process still persist. The following is an attempt to describe the polygraph’s function in criminal investigations, its limitations and some of the basic procedures recommended for an accurate and productive examination.

POLYGRAPH PRINCIPLES AND PROCEDURES

Investigators should be aware that there are two primary applications of the polygraph in criminal investigations; Diagnostic and Interrogatory. Diagnostic applications seek as their ultimate goal, a successful determination of truth or deception.

Interrogatory polygraph is less concerned with the issue of truth and usually seeks a confession of wrongdoing from the suspect. Diagnostic polygraph requires an examiner with considerable training and education using carefully constructed questioning techniques that provide scientific analysis of data while interrogatory techniques essentially use the polygraph instrument or even non-functioning boxes with lights and wires as a prop to induce sufficient fear in the suspect so that his only recourse from emotional anguish is confession. Diagnostic polygraph examinations have been admitted into court as evidence, while interrogations using polygraph as a wedge to confessions frequently have been ruled as inadmissible in court.

A rule that investigators may want to follow is to choose the polygraph examiner as if yourself were going to be requested to submit to take an exam. As many of you have heard, the polygraph is only as good as the examiner.

PSYCHOPHYSIOLOGY

The polygraph instrument records physical changes related to the autonomic nervous system, the so-called involuntary physiological responses, and not just any change from the normal physical recordings. These are involuntary controlled by various centers in the brain.

The psychological stimuli that activate these involuntary responses are two; The emotion of fear, specifically fear of being detected in a lie and the consequences of being caught in that lie; and conflict between what the untruthful subject knows to be the truth and his physical and verbal attempt to portray the opposite.

TEST PROCEDURES

The polygraph examiner must be advised with relevant information pertaining to the case facts collected during the investigation. The examiner will generally discuss the issues that will be covered on the examination with the investigator. This is important in order to address the issue that the investigator wishes resolved. The examiner may then massage this information in order to fit the technical limitations and conditions that the proper polygraph technique requires.

At this time, certain procedural issues should be addressed and resolved. These issues would include who is authorized to receive the results? Who will be allowed to view the test? Is the subject in custody and if so who will transport him to the testing facility? How will custody be maintained? Will the reading of Miranda be required? If the subject is a juvenile, who will accompany this minor and sign the necessary release forms? Is the subject represented by counsel? Will counsel be allowed to be in the polygraph suite? Will the polygraph procedure be audio or videotaped?

At the time of the actual test, the subject will be required to read and sign the necessary release forms. These forms state that the subject has agreed to submit to the test and the results of the test can be made available to the requesting agency and any other parties that are involved in this process. If the test is being conducted on behalf of a law enforcement agency, the subject should be read his Miranda Rights and no person should be tested without their consent. Other release forms are generally filed out at this time. These forms will include their permission to audio or videotape the session, forms that deal with their medical information and any other forms that the examiner may need to assess the subject’s overall well being.

The examiner will then conduct a pretest interview with the subject in order to determine the facts and circumstances as they are known to them. This affords the subject the opportunity to explain their side of the story. During this phase, the examiner is also assessing the subject’s overall suitability to be tested. This area would include the subject’s mental, physical and emotional state at the time of the test. In some cases, the examiner may determine that the subject is not suitable for polygraph testing at this particular time. The examiner may reschedule the polygraph for a later date depending on the issues revealed during the pretest.
During this phase, the examiner is also allowing the subject to clarify or expound on any previous statements made. The examiner will generally ask a series of questions that are designed to draw out the subject’s verbal and non-verbal behavior. Information is developed regarding the subject’s overall feelings regarding the issue under investigation. During this phase, the subject will offer explanations or make statements which may later prove to be useful during the resolution phase.

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