838 Milliseconds: The Difference Between Life, Death and Indictment

March 30, 2022

Kim Foxx, the elected State’s (Prosecuting) Attorney for Cook County, which includes Chicago as its major city, made a stunning announcement several weeks ago.

The announcement?

She decided not to charge two Chicago police officers in two separate 2021 incidents where those officers shot and killed two male suspects, including Adam Toledo, a 13-year-old boy.

The Toledo case is the one I want to address quickly here.

Adam Toledo Shooting Summary

At approximately 2:35 a.m. on March 29, 2021, Adam and 21-year-old Ruben Roman were standing on a corner. Roman fired several shots at a vehicle and then fled the scene.

Police, through the ‘shot-spotter’ system and 911 calls, responded to the area.

Two officers spotted Adam and Roman and gave chase on foot. The primary officer (primary will be used as an identifier in this summary) knocked Roman to the ground. The second officer took over and handcuffed the man as the primary officer then gave chase of Adam.

Eventually Adam slowed and stopped in an alley at a gap between a fence. He had his left side to the officer at this point. His left hand was up near his face but his right hand, holding a handgun, was just off the rear of his hip area on the right side.

The primary officer seeing this stopped running, pointed his gun at Adam and shouted, “Hands! Show me your fucking hands! Hands. Show me your hands. Drop it. Drop it.”

Immediately, Adam turned to his left as he brought his right hand past his right side and out of view of the officer. He then swung it up past and above his right shoulder and faced the officer. Responding to the movement, the officer fired, striking and killing the young man.

The issue that caused angst, anger and hysteria is this: During the very quick turn to his left –unbeknownst to the officer in the moment – Adam had dropped his gun. Therefore, when he was shot, Adam was unarmed, black, and a teenage boy.

This is a fact that was pointed out by multiple media outlets: “13- year-old boy shot while unarmed!” Almost always accompanied by this picture:

Watch the video that Calibre Press posted within days of the unfortunate event. One that Kim Foxx accurately described as having no winners.

The Science of Human Performance Played its Role

Between the event in the alley on March 29, 2021, and the March 15, 2022, Kim Foxx announcement advising no charges would be filed against the primary officer who shot Adam Toledo, 50 weeks had passed. Two weeks short of a year.

In her much-anticipated statement the State’s Attorney noted the reality of a split-second decision, in an alley, in the middle of the night when facing a subject who had fled and was still in possession of a gun used minutes before.

Actually, I added the grim reality of such a situation. However, she did address the issue of quick decisions and the speed of human movement.

As she stood before the press Kim Foxx knew she needed to explain to those who had clamored for an indictment, why the primary officer was not going to be charged. She cited both state law and the elements of the Standard set by the Supreme Court decision in Graham v. Connor in 1989.

“Under Illinois law, an officer is justified in using force likely to cause death or great bodily harm when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself.”

She continued.

“The case law that we rely on recognizes that police officers are often forced to make split-second decisions and judgments in circumstances that are tense, uncertain and rapidly evolving.”

It was at this point she broached the subject of Human Performance and the associated science, though she never actually used the term Human Performance or mention science.

“As Adam ran, his hands were near his waistband, (the primary officer) believed that Adam had a gun. After running nearly a full block in the alley, (the primary officer) saw a gun in Adam’s right hand and shouted at him to drop it. Adam began turning towards Stillman with his left hand raised up in front of his body and his right hand lowered at his side near a wooden fence post in the alley. Almost simultaneously Adam tossed the gun and turned toward the officer with his right hand raised which no longer held the firearm and (the primary officer) fired a single shot.”

Foxx continued by citing something included in the video analysis posted by Calibre Press a year ago.

“The timing of these actions was within 1 second. To be precise, it was estimated to be 838 milliseconds.”

 

Foxx added, to her credit, that after Adam Toledo fell to the ground the officer called for an ambulance and performed CPR. All captured by the officer’s body camera.

“(The primary officer) reacted to the perceived threat presented by Adam Toledo who he believed at the time was turning toward him to shoot him.”

She noted that the primary officer only fired one shot because he then saw that Adam’s hand was empty.

She concluded with, “Based on the facts, the evidence and the law, we found that there’s no evidence to prove that (the primary officer) acted with criminal intent.”

Conclusion

David Blake of Blake Consulting specializing in expert witness work and consulting as it applies to uses of force and the application of Human Performance Science made an interesting and telling statement some years back. “Law enforcement has not embraced human factors science with the enthusiasm one might expect considering the implications of human performance to many LE-related activities.”

Blake, along with other research and training groups such as Jamie Borden’s Critical Incident Review, The Force Science Institute, as well as various courses through Calibre Press, have strived over the years to bring the Science of Human Performance and/or Human Factors Science into every aspect of the Criminal Justice profession, from police training and force event investigative processes to the decision-making decisions of county, state and federal prosecutorial offices.

Take a look at Blake’s statement again. It is, unfortunately, accurate concerning the hesitation to embrace the science. But it’s not just the administrative levels of law enforcement that cause the roadblocks.

I have spoken with police chiefs, prosecutors and the press, each of whom have their own particular hesitations concerning the inclusion of human factors in any facet of the justice system. One chief and his county prosecutor in a Midwest state told me that they thought what we were teaching in our seminars, Acute Stress & Human Performance Considerations for Force Events, was “pseudo-science.” They advised they didn’t even believe that people experience tunnel vision or auditory exclusion and that exceptionally stressful situations imprint, with great clarity, the actual event which allows for retention and the ability to recount the event with precise accuracy.

I was able to change their minds with one video.

During the next hour block, I showed a particularly violent video. It was a short one, no longer than one minute. It depicted an officer who encountered a man with a knife, which caused, eventually, the officer to shoot him.

On the next break I asked the chief and prosecutor some simple questions.

“Chief, when the video was on, what was the officer sitting in the seat directly in front of you doing?”

The chief answered accurately. “I dunno, I was watching the video.”

“Yes, but he was directly in front of you, squarely in your field of vision. I was paying attention to something peculiar he was doing. What was it?”

Again, he said, “I don’t know, I was watching the video.”

I then explained the concept of “selective attention” which means focusing on something you selectively attend to–what is important–and ignoring what doesn’t matter in the moment. I then pointed out that the chief was experiencing no stress, yet his field of vision was limited to what was important to him in the moment, the video displayed on the screen.

“Now imagine someone in front of you with a weapon threatening to kill you. How much of your attention would be focused on that person ignoring unimportant data within your field of vision?”

That was a simple example of rudimentary aspects of Human Performance/Factor Science. Basic principles that need be incorporated in the criminal justice and law enforcement profession at every level.

The media also has objections to the inclusion of the science. This is evident of write-ups in multiple national publications.

What is their objection?

Well, many of them believe that what Kim Foxx was forced to consider in the Adam Toledo case – the science of movement, speed, decision making and stress – to be nothing more than “smoke and mirrors.” Not real science, but science skewed in order to excuse the police when they use force.

I’ve had several skeptical media types in classes but it’s easy to convince them of the validity of the science. How? Simply put them through a force scenario with training weapons. A scenario that is only stressful because they are playing it out in front of an audience. but not because they may actually be killed. Still, they quickly experience tunnel vision and auditory exclusion. Their recall is wildly and hilariously, they find, inaccurate.

We don’t know if Kim Foxx ever saw our video analysis, though we did post the exact same number, 838 milliseconds, last year. Nevertheless, she was confronted with both the reality and the science and had to deal with that. Even if reluctantly.

Let’s hope the rest of the criminal justice system finally starts acknowledging what most other professions have embraced for decades.

After all, it is about time.

Comments to share? E-mail us at: editor@calibrepress.com

 

 

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