Purpose of Evaluations

Dr. Lee, originator of the FBI’s Blue Book for Program Evaluation, heads the Organizational Program Evaluation and Analysis Unit at FBI Headquarters

Impartial evaluations of select programs, especially those with a strategic impact upon the department’s mission and performance, help determine if the programs are fulfilling the stakeholders’ needs, satisfying the organization’s own objectives, meeting prescribed regulatory standards, exploiting the optimum use of resources, complying with oversight responsibilities, and remaining accountable to senior officials and the general public. However, even if an evaluation is brilliantly planned and flawlessly executed, it still may be worthless unless the stakeholders support it and the agency implements and enforces the requisite corrective actions.

1) Core proficiencies comprise 5 team and 31 individual fundamental competencies that form the professional foundation needed to ensure the highest quality of professional evaluations.

2) Principles of professionalism include 15 core standards of excellence that provide the ethical foundation of acceptable conduct upon which evaluators must adhere.

3) The evaluation management process has a seven-phase course of action that composes the logical foundation that ranges from determining evaluation requirements to auditing the progress of corrective actions.

4) The professional development program involves four learning approaches that make up the scholarly foundation for expanding the evaluators’ analytical credentials.

Benefits of Evaluations

Program evaluations can discover internal or external challenges inhibiting performance and impeding progress, including any duplication of efforts or conflicts with other programs. They can identify tangible problems relating to staffing, training, information sharing, operations, administration, planning, design, coordination, auditing, performance, and logistics. In addition, they can detect intangible challenges concerning divergent perspectives, leadership, management, institutional and cultural barriers, group interactions, morale issues, and reception of feedback.

A negative response to any one of these questions may invalidate the need for an evaluation. For example, if no known or anticipated threats or vulnerabilities exist, there may be no risk to the program and, consequently, no justifiable need to perform a costly evaluation at that particular time. Historically, however, almost all programs will have some type and degree of systemic predicaments that may be identified through independent evaluations. Figure 1 highlights a sample risk management decision matrix with the top four assessment criteria.⁴ Additional risk-based information (e.g., answers to the above questions) may be discovered during later research.

Calculating a total composite score for each program can enable agencies to develop an order-of-merit list. Departments then could record programs in descending order of priority based on evaluation resources available. The list may remain valid for a predetermined time or updated as needed to meet new requirements.

Figure 2

OUTPUTS OUTCOMES INPUTS ACTIVITIES Products Services Short Term Long Term

Developing a logic model of a program should help determine some of the key areas for evaluation. A model aids in conceptualizing and identifying major elements within a program, specifically for diagramming the relationships and interconnections between inputs, activities, and output products and services versus short- and long-term outcomes. Figure 2 highlights a simplified logic model for diagramming a generic departmental program.

When preparing an initial model, it may prove more effective to reverse the thought flow process (i.e., single modeling) or, in other words, to work backwards starting with the desired long-term outcomes and then determining the vital program areas and linkages that must be established before successful achievement of the outcomes. The resulting chart provides evaluators with a framework for studying the flow of work from inputs to long-term outcomes, which aid in detecting potential areas of strengths and weaknesses and for identifying lines of parity and disparity. This information should help determine key points for closer evaluation and for supporting the resulting findings, conclusions, and recommendations.

To further enhance analysis, two models or flow charts may be assembled (i.e., dual comparison modeling). The first outlines what program managers originally intended to occur, and the second covers what actually exists in the program. Any areas or lines of differences and trajectory changes between the two will highlight the need for scrutiny, and the subsequent findings should help document discrepancies or gaps discovered in the program’s plans, policies, procedures, and performance.

Conclusion

Developing an integrated evaluation management program will benefit both the law enforcement agency and the community it serves. The main pillars of any program should consist of core proficiencies and principles of professionalism to guide all evaluations, a comprehensive evaluation management process, and an overarching professional development program to further improve each evaluator’s professional credentials and creditability. Part two of this article will focus on the next two stages of the evaluation management process: selecting research design and collecting and processing information.

Endnotes

For clarity, this article is not about religion² nor is it a treatise about ethics, fundamentalism of any kind, popular fads, intuition, emotional or social intelligence, religiosity, or stress management, per se. Rather, the author’s purpose is to acknowledge the link between spirituality and law enforcement to enable its embrace within the profession. In other occupations, including those in the fields of medicine, higher education, and business, many employees, managers, and their organizations have recognized the healthy effects of embracing a critical spirituality. It is time for the law enforcement community to begin a dialogue that recognizes the humanness of officers and the tragic consequences that can occur when the toxicity they face on a daily basis overtakes them.

UNDERSTANDING THE CONNECTION

While some may perceive the subject of spirituality as controversial because of the common misunderstanding of the establishment clause of the First Amendment,³ society must become aware of the inherent spiritual nature of law enforcement. Spirituality denotes the nurturing of the spirit throughout a person’s life in all of its dimensions and expressions.⁴ The four basic components of spirituality include 1) a value-based meaning that emanates from a personal belief system, 2) the total integration of self in pursuit of holistic meaning, 3) the total integration of self in academic disciplines and vocational service, and 4) the recognition of self as a spiritual being on a human journey toward the destiny of that personal belief system. Thus, its domain encompasses research and practice in many areas, such as law, psychology, sociology, anthropology, criminology, criminal justice, religion, theology, and law enforcement.

Spirituality—a sense of meaning and purpose larger than the instrumental duties of law enforcement—affects the most critical aspects of practice, performance, vitality, and longevity in the profession.⁵ It energizes the ethics of practice, resulting in exemplary (efficient and effective) performance. Whereas performance refers to what tasks officers do to enforce the law, practice is how and why they fulfill their sworn responsibilities, doing so with a spirit that evokes the highest virtues of human dignity (the spirit of the law). Vitality depicts the resilience officers must garner to overcome the toxic evils they encounter in the discharge of their duties. Longevity, which some officers believe encompasses a bar higher than mere survival alone, constitutes the result of nurturing the spirit of the law across many challenges (stresses) and venues of service.⁶

Within these four factors, the spirit of the law represents an awareness of the spiritual dimension of humanity that motivates and guides the establishment and enforcement of laws that fully promote justice.⁷ As one veteran law enforcement executive expressed, spirituality is “that look of gratitude when you have done a kind act, standing up for something important and meaningful to someone. That light behind a person’s face when I would show a dignity and respect for them when, perhaps, they supposed many thought them not worthy of respect.”⁸ The enforcement of statutes, regulations, and laws through practices and policies that immediately or subsequently affirm the dignity of the violator and the enforcer is spirituality personified. Human dignity is rooted inexorably in spirituality.⁹ It abounds when law enforcers, while adhering to the letter of the law, perform and practice their profession in accord with the spirit of the law. Spirituality is at work when, using the best judgment and tactical operations available, officers execute justice through selecting the least intrusive options or decide to favor alternative proven methods that engender trust for the enforcement service provider. In short, they seek the positive edification of the spirit of the person against whom enforcement is served by heeding that moral compass that restrains, compels, and enables humans—in their law enforcement capacity—to do good: to do the right thing, the right way, for the right reason. As Dag Hammarskjöeld, former secretary general of the United Nations, said, “Your position never gives you the right to command. It only imposes on you the duty of so living your life that others may receive your orders without being humiliated.”

The Results

Table 1 (page 12) displays some of the exploratory findings about aspects of spirituality. Even though these initial data are quite preliminary, among those surveyed, matters of spirituality clearly infused their practice and performance of law enforcement. According to the overall pattern of survey responses offered by officers themselves, spirituality affected law enforcement in many ways. As the percentages in table 1 indicate, law enforcement executives were keenly aware of the spiritual significance of their work and the consequences of toxicity in their relationships and careers.

Table 2 (page 15) shows how these law enforcement leaders responded to a series of survey questions about evil. These exploratory findings revealed rather persuasively that more than one-half of all respondents sampled had encountered evil in some form via belief, interactions, and feelings. Slightly more than one-half viewed their roles as combating evil. Amazingly, exactly one-half reported having a direct experience with evil. With these findings in mind, no recognition of the concept of evil can occur without engaging the realm of spirituality in some form or measure. Surprisingly, less than 30 percent of respondents thought that they had been adequately trained by their police academy to encounter evil. Notwithstanding the number of missing responses, this finding alone suggests that grappling with the spirit of the law is no idle or trendy pursuit.

Taken together, these data indicate that spirituality matters. In this survey, law enforcement executives evidenced spirituality in and out of religious venues. They were astute enough to distinguish between spirituality and religion. Some attended religious services, whereas others did not. Over one-half of respondents felt the presence of a deity or higher power at work. Judging from these data, a systematic case appears to exist for researching spirituality in law enforcement beyond exploratory levels. More rigorous survey questionnaires and other methods must be designed as soon as possible, preferably using more definitive probability samples pursuant to the best standards of applied research.

A listing of conditions that frequently overtake the good men and women who accept their call to a law enforcement vocation include alcohol and drug abuse, apathy, burnout, cynicism, dark humor, departmental disharmony, divorce, domestic abuse, emotional disorders, a personal crisis of faith, and suicide.¹⁷ Some of these persist in epidemic proportions in the law enforcement culture. The unequivocal evidence of these afflictions tragically culminates in the high number of officer suicides reported by law enforcement agencies. Robert E. Douglas, executive director of the National P.O.L.I.C.E. Suicide Foundation, Inc., said, “If we lost a Boeing 747 every year full of passengers, the FAA would ground them all until they found out what the problem was. We need to find causative factors for police suicide and do something about them.”¹⁸ Judging from volumes of extant data, some law enforcement officers also may lack training about the importance of acknowledging and persistently nurturing the core spirituality that manifests itself as personality, behavior, and health.¹⁹

Intentional, recurrent exposure to evil or the toxicity of its effects without any restoration, rehabilitation, or renewal deprives first responders of that inspiring meaning affirmed through spiritual awareness. Spiritual depravity, or dispiritedness, robs officers of discretion, thus rendering them incapable of compassionate and protective enforcement. Dispirited law enforcement officers are unable to provide the services essential to a safe and healthy community because they are not healthy themselves. This disintegrated state, denoted by a separation of body and wholesome spirit or the presence of an evil spirit, results in the loss of discernment and caring and in the abdication of responsibility. This hidden terrorism of the spirit shows itself in a lack of concern for spirituality, in a deficient spirituality, and in an unrecognized spirituality. Left unabated, these pernicious indicators pave the road to malpractice in policing via corruption, disrespect, and intolerance. In this damaged state, officers cannot manifest for themselves nor extend to others the spirit of the law (enforcing laws in ways that respect human dignity in other beings). Just like the bite of a cobra, a poisonous spirituality can corrode officers’ lives long after their careers end, as suggested by statistics on premature deaths, suicides, and other maladies.²⁰ To this end, best practices in spirituality can sustain both vitality and longevity for officers.

Yet, the primary survival skills that officers receive to defend against intentional exposure to evil and its toxic effects during the course of law enforcement training, when present, are reactive at best. Each law enforcement candidate must demonstrate proficiencies in firearms and defensive tactics prior to graduating from accredited academies. While both skills are essential for keeping their bodies safe, neither proves sufficient for protecting their human spirits from the unavoidable toxic effects of intentional and repetitive exposure to evil. In the face of crises, catastrophic disasters, criminal behavior, or evil, officer safety training for physical survival does not morph into impenetrable protection for spiritual survival. Officers often face hazardous levels of stress, exponential dimensions of uncertainty, and unpredictable loads of complexity that can overwhelm their neglected spirituality. Altogether, too many negative stimuli and far too many psychological anxieties triggered by the uncertainties of daily police work can combine to produce an unfortunate stress that slowly kills or weakens the spiritual immune system of afirst responder beyond critical levels, possibly triggering catastrophe.

Community Involvement

Communities must embrace both the preventive and maintenance responsibilities regarding the holistic well-being of first responders to effectively meet the needs of dispirited law enforcement officers.

The implications of acknowledging the spiritual genesis of best law enforcement practices are enumerable.²⁵ One of the most obvious benefits is that communities will have access to multiple avenues, including innovations derived from systematic, ongoing behavioral science research, that can assist with the acute and chronic needs of their officers.

⁵ I.I. Mitroff, A Spiritual Audit of Corporate America: A Hard Look at Spirituality, Religion, and Values in the Workplace (San Francisco, CA: Jossey-Bass, 1999); and G.F.A. Pierce, Spirituality at Work (Chicago, IL: Loyola Press, 2001).

⁶ G.C. Gallup, Jr. and T. Jones, The Next American Spirituality (Colorado Springs, CO: Victor Books, 2000).

⁷ This is the author’s working definition of the term spirit of the law.

⁸ Captain Michael Arrowood, Covington, Kentucky, Police Department, excerpt from midterm paper for Applied Behavioral Science for Law Enforcement Operations course, FBI National Academy 227th Session, Samuel L. Feemster, Instructor.

⁹ J. Shea, Spirituality and Health Care (Chicago, IL: The Park Ridge Center for the Study of Health, Faith, and Ethics, 2000).

¹⁰ The FBI hosts four 10-week sessions each year during which law enforcement executives from around the world come together to attend classes in various criminal justice subjects.

¹¹ Without question, the views of female and ethnic minority law enforcement officials are underrepresented by this particular sample.

¹² Merriam-Webster’s Collegiate Dictionary, 11th ed., s.v. “vocation.”

¹³ Michael Catlett, Ph.D., adjunct at the John Leland Center for Theological Studies, Arlington, VA, “Spirituality and Vocation,” Spirit of the Law Conference, FBI Academy, August 28, 2003.

¹⁴ Ibid.

¹⁵ R.L. Depue, Between Good and Evil (New York, NY: Warner Books, 2005).

¹⁶ C. Van Zandt, Facing Down Evil (New York, NY: Putnam, 2006).

¹⁷ D.C. Sheehan, ed., U.S. Department of Justice, Federal Bureau of Investigation, Domestic Violence by Police Officers (Washington, DC: 2000); and D.C. Sheehan and J.I. Warren, eds., U.S. Department of Justice, Federal Bureau of Investigation, Suicide and Law Enforcement (Washington, DC: 2001).

¹⁸ http://www.psf.org

¹⁹ D.C. Sheehan and J.I. Warren, eds., U.S. Department of Justice, Federal Bureau of Investigation, Suicide and Law Enforcement (Washington, DC: 2001).

²⁰ D.P. Hackett and J.M. Violanti, Police Suicide: Tactics for Prevention (Springfield, IL: Charles C. Thomas, 2003).

²¹ Administrative Sergeant David A. Teem, Newport, Oregon, Police Department, excerpt from midterm paper for Applied Behavioral Science for Law Enforcement Operations course, FBI National Academy 228th Session, Samuel L. Feemster, Instructor.

²² E. Taylor, Shadow Culture: Psychology and Spirituality in America (Washington, DC: Counterpoint, 1999).

²³ J. Garcia-Zamar, “Workplace Spirituality and Organizational Performance,” Public Administration Review 63, no. 3 (2003): 355-363.

²⁴ D. Harman, ed., Increasing Healthy Life Span (New York, NY: New York Academy of Sciences, 2002).

²⁵ D.G. Myers, The American Paradox: Spiritual Hunger in an Age of Plenty (New Haven, CT: Yale University Press, 2000).

²⁶ Lieutenant Rick Pippins, Odessa, Texas, Police Department, excerpt from midterm paper for Applied Behavioral Science for Law Enforcement Operations course, FBI National Academy 224th Session, Samuel L. Feemster, Instructor.

²⁷Australian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police (Sydney, Australia: Australian Institute of Criminology, 2004).

The author gratefully acknowledges all of the FBI National Academy students who participated in the Spirit of the Law research project and thanks all of the interns assigned to the Behavioral Science Unit who contributed their talents to this effort. He also encourages readers interested in discussing and furthering this crucial issue to contact him at sfeemster@fbiacademy.edu.

Wanted:
Photographs

The Bulletin staff is always looking for dynamic, law enforcement-related photos for possible publication in the magazine. We are interested in photos that visually depict the many aspects of the law enforcement profession and illustrate the various tasks law enforcement personnel perform.

Art Director
FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

Information pertaining to officers’ verbal interaction with the suspect should include the announced identification of themselves as police and any commands or warnings issued, as well as the person’s reaction. Noncompliance illustrates an individual’s state of mind. Did the person make statements acknowledging the officers’ identity? Police also should note any threats or confrontational statements made by the suspect. Sometimes, hostile individuals will state their intention to resist or assault officers. Police also should note a suspect’s lack of a verbal response or refusal to speak during an encounter. This abnormal behavior also could demonstrate the person’s lack of cooperation.

Documentation of the physical encounter should feature the type of resistance exhibited by the suspect and the physical control techniques employed by the officers. Important details include actions by the individual prior to those of the police, such as assuming a fighting stance; removing clothing; hyperventilating, as in preparation for a fight; or any other such behavior. How else did the person show aggression throughout the encounter? Police also need to describe their actions plainly. To ensure clarity, if using terminology from an agency’s use-of-force model, officers should elaborate on terms, such as defensive tactics (e.g., Did the officers use punches, kicks, or elbow and knee strikes?).

When appropriate, the report also should include the steps in the officers’ escalation of force. Although, many times, the initial application of force by police will gain control of a suspect, in other instances it will not. On those occasions, documentation should include the failure to achieve compliance with a lower application of force, as well as the need to escalate to a higher force level. Of course, situations also exist in which officers need to start at a higher level of force; police should respond with the level necessary to deal with the threat, up to and including deadly force, if appropriate.

Endnotes

¹ Graham v. Connor, 490 U.S. 386 (1989).

Los Angeles County,
California v. Rettele,
127 S. Ct. 1989 (2007)

In this case, the U.S. Supreme Court held that law enforcement officers acted reasonably while executing a search warrant for a residence when they ordered naked residents out of their bed and held them at gunpoint for 1 to 2 minutes while they verified that no weapons were present and that other persons were not close by. Despite the fact that the detained residents were Caucasian and the criminal suspects were African-American, the officers reasonably but mistakenly believed that the criminal suspects resided in the home. The presence of persons other than the suspects in the home did not immediately eliminate the possibility that the suspects lived there as well or that the persons detained posed a threat to the officers.

From September to December 2001, the Los Angeles County Sheriff’s Department investigated a fraud and identity theft ring involving four suspects known to be African-Americans. One had a registered 9-millimeter handgun. On December 11, 2001, a search warrant was obtained authorizing the search of two homes where the suspects were believed to be residing for documents and computer files. The affidavit in support of the search warrant cited various sources, including DMV reports, mailing address lists, an outstanding warrant, and an Internet telephone directory all showing that the suspects resided at the homes named in the warrant. Unfortunately, it was not known that one of the homes had been sold 3 months earlier and currently was occupied by Max Rettele and his girlfriend, Judy Sadler, who were innocent owners having no connection to the criminal activity under investigation.

The court of appeals essentially held that because Mr. Rettele and Ms. Sadler were of a different race than the suspects, the officers were obligated to assume that they did not present a danger: “After taking one look at the plaintiffs, the deputies should have realized that the plaintiffs were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.”⁴ The U.S. Supreme Court reversed, remarking that “[w]e need not pause long in rejecting this unsound position.”⁵ The Supreme Court noted that officers have authority to detain occupants of premises during the execution of search warrants, and, further, in “executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search.”⁶ Under that standard, the Court concluded that the deputies acted reasonably in this case.

The orders by the police to the occupants in the context of this lawful search, were permissible, perhaps necessary, to protect the safety of deputies.... The deputies needed a moment to secure the room and ensure that other persons close by did not present a danger. Deputies were not required to turn their backs to allow Retelle and Sadler to retrieve clothing or to cover themselves with sheets. Rather, the “[r]isk of harm to both the police and occupants is minimized if the officers routinely exercise unquestioned command of the situation.”⁷

This is not to say, however, that officers are free to force unclothed occupants to remain motionless and standing for any longer than necessary. Unreasonable actions in executing a search warrant include excessive force or restraints that cause unnecessary pain or are imposed for a prolonged or unnecessary period of time. In this case, there was no accusation that the detention was prolonged. Ms. Sadler testified that once the police were satisfied that no immediate threat was present, the officers “wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on.”⁸

The Court summed up the constitutional issue as follows:

The Fourth Amendment allows warrants to be issued on probable cause, a standard well short of certainty. Valid warrants will issue to search the innocent and people like Retelle and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity and the resulting frustration, embarrassment and humiliation may be real, as was true here. When officers execute a valid search warrant and act in a reasonable manner to protect themselves from harm however, the Fourth Amendment is not violated.⁹

Having found no constitutional violation, the Court found it unnecessary to consider whether the defendants were entitled to qualified immunity.¹⁰

© Comstock Images

Scott v. Harris,
127 S. Ct. 1769 (2007)

This case addressed the reasonableness of the use of force to terminate a motor vehicle pursuit. A Georgia county deputy attempted to stop a car driven by Victor Harris traveling 73 miles per hour in a 55 mile-per-hour zone. Harris refused to pull over and led police on a chase at speeds exceeding 85 miles per hour. Deputy Scott heard the chase on the police radio and joined the pursuit. During the pursuit, Harris was nearly boxed in by police cars but was able to evade officers, striking Scott’s police car in the effort. Shortly thereafter, Scott sought and received permission to stop Harris by using a Precision Intervention Technique (PIT) maneuver.¹¹ Instead of using the maneuver, Scott “applied his push bumper to the rear” of Harris’ vehicle.¹² Harris lost control of his car, which left the roadway, rolled over, and crashed, rendering him a quadriplegic.¹³

It was [Harris], after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high speed flight that ultimately produces the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing [Harris] for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action he did.²⁶

The Supreme Court refused to accept the argument made by Harris that the public would be better protected by having the police terminate the pursuit. The Court commented that ceasing the pursuit was no guarantee that Harris would not continue to pose a danger to the public. In addition, the Court was reluctant “to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger.”²⁷ Instead, the Court established the following rule:

A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.²⁸

© Comstock Images

The state conceded that the stop of the vehicle was not supported by lawful grounds; however, as the stop was directed at the driver, the passenger was not seized within the meaning of the Fourth Amendment. Therefore, the initial encounter with the passenger did not violate the Constitution. The trial court denied Brendlin’s motion to suppress, holding that he was not seized at the time of the stop. The California Court of Appeal reversed the denial of the suppression motion.²⁹ The state appealed this ruling to the California Supreme Court. On appeal, the California Supreme Court held that suppression of the evidence was not required. The court concluded that a passenger is not seized simply because a vehicle in which he or she is riding is stopped by law enforcement in the absence of additional circumstances that would lead a reasonable person (the passenger) to believe that he or she is the subject of the investigation or show of authority.³⁰ The court noted that absent some additional show of authority directed to the passenger, “the passenger is free to ignore the police presence and go about his or her business.”³¹

The U.S. Supreme Court agreed to hear this case and in a unanimous decision reversed the California Supreme Court, ruling that once a vehicle is stopped by law enforcement, all of the vehicle’s occupants are seized within the meaning of the Fourth Amendment and, thus, may challenge the constitutionality of the seizure.

© Comstock Images

James v. United States, 27 S. Ct. 1586 (2007) Lower Court Citation: 430 F.3d 1150 (11th Cir. 2005)

The issue presented in this case was whether the Florida crime of “attempted burglary” satisfied the federal statutory meaning of “violent felony” so as to place the defendant under the provisions of the Armed Career Criminal Act (ACCA).³² The ACCA “provides that a defendant convicted of possession of a firearm by a convicted felon, in violation of § 922(g), is subject to a mandatory sentence of 15 years of imprisonment if the defendant has three prior convictions ‘for a violent felony or a serious drug offense.’”³³ The petitioner to the Supreme Court in the present case, Alphonso James, pleaded guilty in federal court to one count of being a convicted felon in possession of a firearm.³⁴ In his plea agreement, James also admitted to three prior felony convictions, including a conviction in Florida state court for attempted burglary of a dwelling.³⁵ These three prior convictions, the federal government argued, subjected James to the provisions of the ACCA.³⁶ James, on the other hand, argued that his attempted burglary conviction did not fall under the “violent felony” provision of the ACCA, keeping him from being susceptible to its 15-year mandatory minimum prison term.

The Court delved into the meaning of “violent felony” as defined by the ACCA to reach its conclusion that a conviction for attempted burglary under Florida law did satisfy its provisions. The ACCA defines violent felony as “any crime punishable by imprisonment for a term exceeding one year...that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”³⁷  Because attempted burglary clearly does not satisfy the terms of subsection (i) or the first two categories described in subsection (ii) of the ACCA, the Court=s decision ultimately rested on the “otherwise involves conduct that presents a serious potential risk of physical injury to another” language at the end of subsection (ii). Reading Florida=s burglary statute in conjunction with its criminal attempt statute led the Court to its conclusion.

The U.S. Supreme Court affirmed the appellate court decision that once the Department of Justice certified that the federal employee was within the scope of his employment when the alleged activity took place, the removal to federal court was binding, at least until a determination by the fact finder that the employee was not acting in the scope of his employment.⁵⁰ This, the Court reasoned, would satisfy the core purpose of the Westfall Act —“to relieve covered employees from the cost and effort of defending the lawsuit, and to place those burdens on the Government=s shoulders.”⁵¹

Endnotes

¹ See 186 Fed.Appx. 765 (9th Cir.2006) (unpublished).

² Id.

³ Id. at 766, citing Franklin v. Fox-worth, 31 F.3d 873, 876 (9th Cir. 1994).

⁴ Id.

⁵ 127 S. Ct. at 1993. See Michigan v. Summers, 452 U.S. 692 (1981).

⁶ Id., citing Muehler v. Mena, 544 U.S. 93 (2005).

⁷ Id., citing Summers at 702-703.

⁸ Id.

⁹ Id. at 1993-1994.

¹⁰ Id. at 1994. (The dissent continues a long-running debate within the Court concerning the proper order of resolving the distinct issues of qualified immunity and the factual determination on the merits of the constitutionality of police action.) See, e.g., Scott v. Harris, 127 S. Ct. 1769 (2007); Brosseau v. Haugen, 125 S. Ct. 596 (2004); and Saucier v. Katz, 121 S. Ct. 2151 (2001).

¹¹ The technique is used to cause the fleeing vehicle to spin to a stop.

¹² Scott v. Harris, 127 S. Ct. 1769, 1773 (2007).

¹³ Id.

¹⁴ Harris v. Cowetta County, 433 F.3d 807 (11th Cir. 2005).

¹⁵ Id. at 1776, quoting Brower v. County of Inyo, 489 U.S. 593, 597 (1989). (“If... the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash then termination of the suspect’s freedom of movement would have been a seizure.”)

¹⁶ 490 U.S. 386 (1989).
¹⁷ Harris at 1777.
¹⁸ 71 U.S. 1 (1985).
¹⁹ Id. at 8.
²⁰ Id.
²¹ Harris at 1777.
²² Id. at 1778.
²³ Id. at 1778, quoting United States v. Place, 462 U.S. 696, 703 (1983).

²⁴ Id. In this respect, the Court notes that while the culpability of the suspect is not relevant to the question of whether a seizure occurred, culpability is relevant to the reasonableness of the seizure.

²⁵ Id. at 1778. See also Id. at endnote 10 where the Court notes that while the culpability of the suspect is not relevant to the question of whether a seizure occurred, culpability is relevant to the reasonableness of the seizure.

²⁶ Id.

²⁷ Id. at 1779 (emphasis in original).

²⁸ Id.

²⁹ People v. Brendlin, 8 Cal.Rptr.3d 882 (2004).

³⁰ People v. Brendlin, 38 Cal.4th.1107, 136 P.3d 84 (2006).

³¹ Id. at 1117.

³² Title 18 U.S. Code § 924(e).

³³ 127 S. Ct. at 1590.

³⁴ Title 18 U.S. Code § 922(g).

³⁵ Fla. Stat. §§ 810.02 and 777.04.

³⁶ James’ other two convictions were clearly “serious drug offenses,” which were explicitly covered by the ACCA.

³⁷ 127 S. Ct. at 1591, citing Title 18 U.S. Code § 924(2)(B) (emphasis added).

³⁸ Fla. Stat. § 810.02(1) (1993).

³⁹ Fla. Stat. § 774.04(1).

⁴⁰ 127 S. Ct. at 1594, quoting Jones v. State, 608 So.2d 797, 799 (Fla. 1992). ⁴¹ 127 S. Ct. at 1595. 42 Id.

⁴³ Note 6, supra (emphasis added).

⁴⁴ Commonly known as the “Westfall Act,” Title 28 U.S. Code § 2679(b)(1) is actually The Federal Employees Liability Reform and Tort Compensation Act of 1988.

⁴⁵ Title 28 U.S. Code § 1346(b)(1).

⁴⁶ Osborn v. Haley, 127 S. Ct. 881, 888 (2007).

⁴⁷ 422 F.3d 359 (6th Cir. 2005).

⁴⁸ Osborn at 887 (emphasis added).

⁴⁹ Id. at 888, citing Title 28 U.S. Code § 2679(d)(2).

⁵⁰ Id. at 900.

⁵¹ Id. at 901.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.