National Police Association Podcast with Guest, Det. Kevin Davis (Ret.) Police Use of Force Expert Witness
Hi. This is sergeant Betsy Brantner Smith with the National Police Association, and this is the National Police Association podcast. I have a guest today, and I know I always say this, but this is a guy I have wanted to bring on, for quite a while. We have known each other, like, literally forever since we were young cops and young police trainers. And, yes, we were young ones.
Betsy Smith:And, and he continues to serve in a really difficult atmosphere where we are seeing the vilification, the demonization, and and frankly, the wrongful prosecution of law enforcement officers around the country. So I wanted to bring him in to talk about use of force, what a use of force expert does, and how people like my next guest are trying to save not just the careers, but the lives of good police officers around the country. Kevin Davis, welcome to the show.
Kevin Davis:Thank you, Serge. It's a privilege and an honor to be here.
Betsy Smith:So, I'm gonna ask you first, of course, and because I ask everybody this. Because this is what we get asked. Right? Why did you become a cop?
Kevin Davis:Well, that's an interesting story because I set out my family profession. My dad, was a teacher. My brother, elder brother is a teacher, and I set out to study elementary education and to be an athletic coach, like the follow the family tradition. But while I was attending university, I was laid off from one job and a former supervisor there said, hey, you know, if you ever want to, you're ever out of work and looking for something, my brother owns a security company. So I started working security while I was attending university.
Kevin Davis:And, it really, allowed me to study while I was working. I worked mostly closed factories on the weekends, allowed me to study and everything. But I came into contact with a lot of law enforcement officers and, as we, say, got bitten by the bug and, here I am, you know, 40 plus years later.
Betsy Smith:And I gotta tell you, my mom was an elementary school teacher for 29 years. And after I became a cop, she asked me to come visit her school because she was thinking maybe I could be a teacher instead of a cop. And I I was in that classroom for about a half hour. I'm like, no. I wanna go search
Kevin Davis:for I
Betsy Smith:I don't wanna teachers are so very brave.
Kevin Davis:Amen to that.
Betsy Smith:So, tell us a little bit, I mean, a little bit about your long career. You know, you retired as a as a detective. How did all that unfold?
Kevin Davis:Well, I started working for the local sheriff's department as a deputy sheriff, and I worked in corrections as most deputies start, worked on a variety of different assignments for the sheriff's office, including the road patrol and then was hired by my former city in 1990. So I worked 8 years as a deputy sheriff in the 1990. I hired on my now, former agency and worked there for 31 years. And, I really worked everything from night shift patrol in the worst districts in the city to, street narcotics, SWAT, and then a long stint in training, both as a collateral duty while I was working in street narcotics and then, full time as a full time trainer. Then I ended up my career as a detective in the body worn camera unit.
Kevin Davis:So myself and my former partner were the ones that were in that unit to the start of the BWC program.
Betsy Smith:Let me ask you, how have body worn cameras changed changed law enforcement? You know, when we you know, 10, 12, 15 years ago, when when, they became a little more mainstream. You know? A lot of police officers were resistive. I didn't I didn't care for wearing 1.
Betsy Smith:And, but, you know, that has changed a great deal. Talk about that for a minute.
Kevin Davis:Well, the the first part of it is, law enforcement, like most technologies, we, embrace the technology before we think out the the many ripples that occur with the change. And with the body worn cameras, that is 1st and foremost, the mere storage of the digital video evidence, which according to your state, has to be maintained. For instance, in most states, you have to keep felony arrest records and you have to keep serious felony arrest records, including the PWC videos forever. And so that just compounds and compounds. And then the problem is also a public records request.
Kevin Davis:Ohio, as you know, my, the state in which I live and work and work to just pass a law where they can now charge people that were, are requesting videos like these YouTubers and even the media, they can charge them $75 an hour up to $750 total because what happens is is those records have to be redacted, everything from social security numbers to images of domestic violence victims have to be redacted before they can be released. And that takes time. My former agency had 2 full time detectives doing it. The city of Cleveland, last time I checked, they had as many as 8 full time detectives doing redactions. And then you take them into court, the the judges, the the courtrooms were not prepared for that type of evidence.
Kevin Davis:So it it it was interesting to be on the ground floor of that. And, I remember one case, and I'll leave you with this, in which the judge had to call a recess, get up off the bench, and help set up the projector in the courtroom because it wasn't playing right. And that's just the part of, the ripples effect of BWC videos. The biggest thing I I will say this is that the video is not the actual event, especially when we're talking about use of force. It's a 2 dimensional image that, is captured from a a fish eyed camera at 30 frames per second on average.
Kevin Davis:So it's just not the real event.
Betsy Smith:And I think that's so important to emphasize that because, you know, the the public very often just thinks this is going to be an absolutely perfect view of exactly what the officer was seeing. And then when the that body worn video, comes out, it's it's still very difficult sometimes to decipher what was happening, isn't it?
Kevin Davis:Oh, yes. And advanced software is oftentimes needed and advanced training. You know, I sent myself to multiple different training schools to try to learn how to analyze digital video evidence and that paid off for my agency as well as the local county prosecutor's office. You know, I was awarded top cop before I left because I worked on 2 murder cases that were captured on surveillance cameras. So it's us not only embracing or getting the new technologies, but also learning how to maximize it.
Kevin Davis:And when it takes like use of force in general, it takes a practiced I, an educated mind with using the right software to be able to analyze the use of force incident on video.
Betsy Smith:Now you are now that you're retired from the police department, you know, you are and have been for quite some time, a a nationally recognized author, expert, expert witness, trainer. I've personally been in your classroom multiple times. Talk about the last 4 years and what you've seen for this profession, you know, really post George Floyd.
Kevin Davis:Well, it's it's been very, very difficult. I have worked, multiple cases, in which the police officer was the defendant. These include murder cases. I think I've worked 5 or 6 murder cases now and I have at least 1 retrial and 2 more murder cases coming up probably this year, hopefully another retrial based on appeal. But the problem is is that so many people we used to say and you know in our profession that the bosses didn't know use of force.
Kevin Davis:I mean they oftentimes you get the chief and deputy chiefs that would make excuses for not attending training and they're going therefore they didn't know what the officer was taught. But now you have these activist prosecutors who like in Columbus Ohio, you know, former prosecutor there, as you well know, talking to Brian Steele from Columbus FOP Lodge that, you know, the prosecutor said if the officers succumb to the temptation of using deadly force, he was gonna charge them. And, I think under those circumstances, you have officers who've done the right thing, have comported themselves with the agency policy and use of force law and still find themselves being charged with felonies, including murder.
Betsy Smith:When a police officer ends up having to use deadly force, that's something I think a lot of the public thinks, you know, cops can just go out and shoot anybody they want and this and that. They're totally off off the hook, actually, or off the rails. There's policy. There's state law. There's federal law.
Betsy Smith:The the circumstances where we can use force is very controlled. Correct?
Kevin Davis:Oh, yes. You know, it goes back to, in both your and my career, which they used to apply the 14th amendment, to shock the conscience standard under johnson versus Glick to police use of force. And that changed with Tennessee versus Garner in 85 and then Graham v Connor in 89. Now it's the 4th amendment standard of objective reasonableness. And although I had a reporter recently compare Tennessee versus Garner, Graham v Connor to Plessy versus Ferguson and the Dred Scott decision of the 1800, you know, which were were supreme court decisions that were very racist, you know, no doubt.
Kevin Davis:But, you know, that's certainly not true. And my response was is that, wait a second. Do you find that, the Terry decision, Miranda or Escobedo are are bad decisions? Well, no. You know?
Kevin Davis:So they pick and choose. And what they're trying to do locally and statewide is to make use of force more restrictive than the law allows. And the problem with that, as you will know, is that you create this conundrum, we have a perfectly lawful use of force, but you violated policy and that never plays well.
Betsy Smith:Can a department's policy be more restrictive than the law?
Kevin Davis:Oh, certainly. Yeah. And the buzzwords that we're seeing is that, you know, you have to exercise, some degree of de escalation, which is a kind of funny thing because it's not defined what de escalation is. And furthermore, it takes 2 parties to have a de escalation occur. I mean, you have to have a willing suspect.
Kevin Davis:Furthermore, you have things like proportionality that use of force must be proportional, use of force must be the minimal amount of force and and all these, it must be necessary. And there's 2 problems with that. Number 1, that's all based in hindsight. You know, in other words, they won't tell you what you can do prior to an incident. They'll only tell you what you can't or couldn't do or should not have done after they view the the video.
Kevin Davis:That's number 1. And number 2, as we said, it's it's contrary to the law. There's no legal standards for these things. So it definitely creates hesitation and trepidation in officers. And then you have officers as we've seen so many times recently take a beating instead of fighting back or relying, you know, taser dependence where taser becomes everything.
Kevin Davis:And when it doesn't work, there's a serious failure and ability to control the subject.
Betsy Smith:What is you know, when you and I were young cops, we worried about things like, am I gonna get sued? Maybe even am I gonna get hurt, although we didn't all worry about that so much. But now young cops go out there and worry about getting indicted, getting arrested, getting tried for murder. What does that because you deal intimately with some of these police officers who are literally being tried for murder for doing their job. What does that do to the psyche of of that officer as well as to that officer's agency, that officer's coworkers?
Kevin Davis:Well, I've seen that happen in both criminal cases where as well as just throwing an officer under the bus to to appease those agenda driven groups within the community. And the problem is, you and I both know is that we're never gonna be able to appease them. Their fundamental goal is defunding and de policing. The answer to that or the what I answer in that is that, how's that working out for you, you know, in terms of crime and violence in this country. But, I really believe that this, this demonization and vilification of law enforcement is a, is a goal to force, you know, reform and policing and reimagining policing.
Kevin Davis:You know, and we're always open to change. I mean, my my God, the amount of change you and I went through in our careers is is tremendous, you know, and you go, okay. And some of that is is is mistakes, mistake driven and we're certainly not perfect, you know, and when you throw us into chaotic, high tension, high stress environments and conditions, we make mistakes. But that's what was so nice about and is so nice about the legal standards, say, Graham v Connor, is that it allows officers to make decisions in circumstances that are tense, uncertain, and rapidly evolving. And the problem is is everything now is hindsight driven.
Kevin Davis:And, you know, we can't you can't stand muster when you don't know the standards in advance. And then you have these young officers, and this this comes out of Seattle Police Department from what I understand that they can't shove it up your derriere if you're sitting on it. And, you know what? Sitting in a patrol car waiting for the next call to come is not the way we want, policing done in the United States because you and I both know the the real really the only way to control violent crime and reduce crime in general is proactive policing.
Betsy Smith:Well, yeah, you started in law enforcement in the nineties when we had some of the highest crime we ever had, and then we brought it back to some of the lowest crime in this country. And and, you know, and I think that's when you when you talk about the agenda behind all of this, it just in your opinion, what do you think the ultimate outcome is? Because it it seems like you know, for example, Washington DC is a great example. The district, you know, spent the last 4 years, really, shoving their cops under the bus. There's some extraordinary, criminal cases that have come out against police officers in the District of Columbia.
Betsy Smith:And, yeah, we saw all these politicians over the last couple years, become crime victims. We saw juvenile crime continue to see it through the roof, the carjackings, the violence, all that in our nation's capital. Do people just they don't care if they're the victims of crime, some of these politicians or what? What in your opinion is the end game here?
Kevin Davis:I really and truly don't know. It's in my local agency with the agency that I worked for, we've had everything from police auditor forced upon the agency to police citizen review board, to, you know, just everything. And now it's a call for, you know, revisiting police policy on use of force and none of that plays well, it doesn't play well for the officer's safety, it doesn't play well for controlling crime and reducing crime and it makes retention damn near impossible and recruitment impossible as well. I mean when you have an agency that the potential candidates are looking at saying, wait a second, you know, even if I do the right thing here, I'm gonna get thrown under the proverbial bus, then you're not gonna attract those candidates. They're gonna go to the more affluent suburbs where there's less crime and more money.
Kevin Davis:And you know what? You can't blame them. So I don't know what the end result is or endgame.
Betsy Smith:Yeah. It is it is very it's, it's confusing to me just as a human being. Doesn't you know, everybody wants to be safe. The police can help keep you safe. But and one of the things that we see, and you and I have talked about this, is the the the chasm between law enforcement leadership and the cops who are actually doing the job.
Betsy Smith:We see more and more, especially in large, primarily blue cities in this country, where we see leadership who seems to be more pro criminal and pro prosecution of cops than they do pro law and order. Do you see that?
Kevin Davis:Oh, yes. And and and we see this, in the purposeful selection of weak, individuals as chief of police. I mean, you they don't want strong, people, that are going to actually engage in leadership. They want feckless people. I hate to say this, but it's so often the case, feckless people who refuse to stand up for the troops.
Kevin Davis:I mean, my god. I've seen perfectly good, police use of deadly force that was the the chief of police would not even come out and say, you know, this was within policy and within the law. And although it's a tragedy, it's, was certainly understandable and reasonable based on the circumstances. And you have a chief that and the troops are looking at that. And and here's the thing Betsy is that cops on the street more make more tough decisions.
Kevin Davis:They don't get to rely on focus groups and have meetings prior to releasing a press release or whatever. They are forced to make decisions in the worst of circumstances. And you know what? God bless them. They do 99.9% of the time, they make great decisions.
Kevin Davis:Now have I worked cases or been asked to work cases where officers were essentially criminals in uniform? Yes. And I refuse to defend those officers as any reasonable expert would. But that said, it is my job and my passion to defend the wrongfully accused and the wrongfully indicted to the best of my abilities. And, you know, we've been very, very successful.
Kevin Davis:There's some great attorneys that I work with out there that are masterful about taking these cases. And, you know, it's like one case I had in Virginia that there was a motion to dismiss after the prosecution rested and the and the judge just flat out said you have a major case prosecutor case dismissed. But that case cost over $1,000,000 to defend that that deputy sheriff. So, sadly, it's it's expensive and, you know, it's detailed and you wanna get the right people both as legal counsel as well as working as experts.
Betsy Smith:And I don't think people really understand that. And that's one of the things, you know, police unions have this reputation sometimes in the in the media and with activist groups and and even and activist police chiefs that they're just there to keep bad cops on the job. Nothing could be further from the truth. Correct?
Kevin Davis:Oh, I just communicated that very thing to, local FOP president this morning as a matter of fact. And and I said that when you have local politicians and the media who believe that police should not be defended because they're they're wrong, they're essentially anti law enforcement, then it relies upon the, it comes down to the police chief or the police administration. And if they won't do it, then it's the police association. And and more and more, you know, I see this being a responsibility of the because everybody's worried about the fallout on their career. I mean, here's this cop in at 0 dark 30 in some back alley that, shot someone he didn't wanna shoot, someone who created the circumstances and essentially made him shoot, made the officer shoot him.
Kevin Davis:And, you know, those type of circumstances exist and and here's everybody's bailing out on them. It's easy to make decisions on the safety of your office on Monday morning, but that's not and Granby counter addresses that, you know.
Betsy Smith:This has had this current atmosphere, if you will, has had a huge impact on police morale, on retention, as you said, on recruitment.
Kevin Davis:And on wellness, Betsy. You know?
Betsy Smith:Yes. Exactly. On our mental health. If you're going out there and, you know, working 12 hours and 14 hours, 6 7 days a week because your department is short staffed, they don't have enough people to work the work patrol. You're tired, and then you're worried about going to jail.
Betsy Smith:You're worried about losing your job, not being able to support your family. What is all that doing to our profession?
Kevin Davis:Well, I'll tell you what happened in a high profile shooting in my former agency that, you know, the I I had a meeting that was brought in by the F. O. P. To address some concerns. And after the meeting, I asked the the 2 deputy chiefs that were there.
Kevin Davis:The chief had bailed out to go have a meeting with ministers because he thought that was more important. But I asked these 2 deputy chiefs. I said, what are you doing for these officers? And I said, don't you understand that the troops are watching you and how they're being treated and thinking, hey, if that could be me. And the answer was they weren't doing anything.
Kevin Davis:And so it was up to the Fraternal Order of Police to bring in counselors. And that included counseling sessions for the families of those involved. And I can tell you I was there that day when when that training took place, that counseling took place and these families looked like deer in the headlights. I mean, they were really just literally still knocked back on their heels wondering if their loved one was going to be going to prison based on doing their job.
Betsy Smith:So tremendous That's such an important point because it's not just us. It's not just the cop, right, that is affected. Our our, you know, our spouses, our kids, our parents, it really takes a toll on a whole family, doesn't it?
Kevin Davis:Oh, it absolutely does. And wellness is, focus on wellness is increasing. But wouldn't it be better I mean, as I said, in terms of police recruitment, the best recruitment tool is to take care of the people that already work for you. You don't have to worry so much about police wellness and resilience and all these these programs if you take care of the troops to begin with. That's the largest part of it.
Kevin Davis:And LP, we buy into the the danger. We buy into a lot of this stuff. But when your own department won't back you up, when you do what you've been trained to do and you were within policy and the law and and they don't stand up for you, that's so debilitative again, on an officer.
Betsy Smith:Absolutely. And that that stuff all starts at the top. It all starts with with leadership and, and
Kevin Davis:Or lack thereof, unfortunately.
Betsy Smith:Yeah. Exactly. Kevin Davis, I I wish we had about 3 more hours to talk. But tell people where they can, contact you. They can, read your articles, find you.
Betsy Smith:Tell us all that stuff.
Kevin Davis:Well, they can tune into the World Wide Web. I think we still call it that nowadays and look for KD hyphen, that's KD dash force training dot com. So it's KD hyphen force training dot com Or, if you're interested in picking up, my book, use of force investigations, a manual for law enforcement, it's available on Amazon as well.
Betsy Smith:I love it. I I gotta tell you, detective Davis, I enjoy talking to you so much, and, I appreciate you spending time with us today.
Kevin Davis:Well, on police, appreciation day, I appreciate what you do for my brothers and sisters and, to all those that may be watching. God bless you and stay safe.
Betsy Smith:Thanks so much. And if you'd like more information about the National Police Association, you can visit us at nationalpolice.org.
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