Qualified Immunity as relates to Officer Involved Shootings  

 

Dr. Peter A. Barone, Esq., Ph.D., JD, LL.M., MSM, CPP, CFSA

The use of deadly force by law enforcement officers is something that is very serious and very devastating to the victim, the victim’s family, the officer and the officer’s family. There are a multiplicity of situations and circumstances under which law enforcement officers use force, up to and including deadly force, to prevent the escape of dangerous suspects or to defend themselves or others against an apparent imminent risk of death or serious bodily harm. Because the use of deadly force, by its very nature, usually results in serious injuries, and often results in death, it is hardly remarkable that such use often results in the filing of lawsuits seeking substantial money damages by the victim and or their families. The victim, or the families of the victim, usually will find an attorney to file a law suit or they could also seek to involve the federal government to determine if the actions of the law enforcement officer violated their or their family members civil rights which could result in a state law suit, a federal law suit, and possible state and or federal criminal charges.

A law enforcement officer has to make split second decisions during a dynamic flowing and life threatening situation which unfolds in seconds. Due to the amazing amount of responsibility given to law enforcement officers when dealing with lethal situations the United States Supreme Court has been presented with numerous cases over the years with the task of interpreting if the officer’s actions, during this dynamically and unpredictably unfolding sequence of events, was reasonable, proper and legal. Via the review of numerous cases involving officers using force, and deadly force, the U.S. Supreme Court has set forth some important legal guidelines both for the use of deadly force itself, and for the inquiries which must be conducted before such use results in civil liability in a federal civil rights claim.

One of the area in which the United States Supreme Court has addressed in its’ decision involves the application by the lower courts in applying these guidelines and principles in the context of federal constitutional claims for use of deadly force against apparently armed or dangerous suspects. One of the most important defenses available to individual law enforcement officers who wind up finding themselves as defendants in state civil or federal civil rights lawsuits is that of qualified immunity. Qualified immunity is what is known as an “affirmative” defense, which means that it must be raised by a defendant, or else it is lost.

The essence of the concept is that, because police officers are often called upon to make difficult decisions, sometimes with only split seconds to respond, they ought not have to face civil liability or the burden of the litigation process, including discovery and trial, in circumstances where they have not acted in violation of clearly established law. Because the immunity involved offers the officer relief not just from civil liability, but also from the burdens of litigation, a trial court’s denial of a defendant officer’s motion for qualified immunity is, with some exceptions, subject to immediate appeal (Anderson v. Creighton, 1987) and (Mitchell v. Forsyth, 1985).

In circumstances where the defense of qualified immunity is upheld, an officer will not be found liable, even if their conduct, such as the use of deadly force, actually could be said to have violated the plaintiff’s federal civil rights, so long as an objectively reasonable officer could have believed, under the circumstances, that the conduct was lawful and this assessment is accomplished via the review and evaluation of the totality of the circumstances.

When we examine another one of the U.S. Supreme Court decisions’ which is the case of  Brosseau v. Haugen (2004) we see that the decision in this case illustrates the application of this principle in the context of the use of deadly force, and ruled that an officer who shot a fleeing felon motorist in the back was entitled to qualified immunity, when prior case law did not clearly establish that her conduct violated his Fourth Amendment rights.

An examination of this specific case reveals that an officer learned that a man was wanted on a felony no-bail warrant for drugs and other offenses, and heard a report of a "ruckus" at his mother's house. The suspect attempted to flee in a vehicle, getting into a Jeep and trying to start it. The officer ran to the Jeep with her handgun drawn and ordered him to stop. As the suspect fumbled with his keys, she hit the driver's side window several times with her handgun and, on the third or fourth try, broke the window. She had mace and a baton, but allegedly did not use them, instead trying to grab the car keys.

Either before he pulled away, or just after he started to do so, the evidence concerning this specific fact is conflicting, the officer shot him in the back. Because he did not stop, the officer believed she had missed him, but she did not take a second shot, believing the risk to be too great as he began to drive away and others being in the potential line of fire; however, the driver subsequently pulled over and passed out.

A federal appeals court ruled that the officer who shot the suspect did not act reasonably if there was no evidence that he posed a threat of serious harm to others or was armed with a weapon, overturning a grant of qualified immunity to the officer by the trial court  (Haugen v. Brosseau, 9th Cir. 2003). There was an appeal to the United States Supreme Court and the U.S. Supreme Court disagreed with the appellate court and they ruled that the officer was, indeed, entitled to qualified immunity.

The United States Supreme Court advised that qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.

The Supreme Court noted that the parties had pointed to only a "handful of cases" relevant to the issue of whether shooting a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight was reasonable.

In two of the cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others, including on the basis of the possibility that a speeding vehicle being used to flee could endanger others or that the suspect had proven that they would do almost anything to avoid capture. In a third case, the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect, ruling that the threat created by the fleeing suspect's failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force.

The Court found that these three cases taken together "undoubtedly show that this area is one in which the result depends very much on the facts of each case," and that none of them "squarely governs the case here," while suggesting that the officer's actions fell in the "hazy border" between excessive and acceptable force. Since it was not "clearly established" that the officer's conduct violated the Fourth Amendment, she was entitled to qualified immunity.

The Court in Brosseau v. Haugen (2004) the Court was applying a method to be used to determine qualified immunity previously established in Saucier v. Katz, 2001. When examining that particular method we see that a trial court should first inquire, in response to a motion for qualified immunity, whether a constitutional right would have been violated on the facts alleged by the plaintiff, because if no right would have been violated, there is then no need for any further inquiry. Secondly, if a violation could be made out, based on the facts alleged, the court must then determine whether the right involved was clearly established.

The most important part of the ruling in Saucier v. Katz (2001) is that this second inquiry must be made in light of the case’s specific facts and context, not as a “broad general” proposition. The Court in Brosseau v. Haugen (2004), in applying this approach, therefore, focused its inquiry not on whether there was a broad general right clearly established not to be subjected to unreasonable use of deadly force, which, of course, there is, but whether it would be clear to a reasonable officer, in the specific circumstances confronted, that her conduct was unlawful in the those circumstances.

When there is clear and well-established law indicating that the officer’s actions in using deadly force would not be justified under the alleged circumstances, the motion for qualified immunity will be denied. See Lehman v. Robinson, No. 05-15636, 2007 U.S. App. Lexis 8978 (9th Cir.), holding that officers were not entitled to qualified immunity for shooting and killing a man sitting in his car with the tires shot out when they allegedly knew he had no gun, was only in possession of a pocket knife, was not suspected of any crime, and when the purpose of trying to get him out of his vehicle was to talk him out of possibly killing himself. Under these alleged circumstances, no use of deadly force would be justified, particularly when he was surrounded by a number of police vehicles and at least ten armed police officers.

Another such case is Adams v. Speers (2007) in which the court held that a California highway patrol officer was not entitled to qualified immunity in a lawsuit claiming that he shot and killed a teenage driver at the conclusion of a pursuit without warning and without reason to believe that he needed to do so to defend himself or others at that time.

In reverse of the holding in the Adams v. Speers (2007) case is that if it is clear that the officer’s use of deadly force was justified, qualified immunity will be granted. In Robinson v. Arrugueta, No. 04-10856, 415 F.3d 1252 (11th Cir. 2005), finding that an officer was entitled to qualified immunity for shooting and killing a suspect in a drug transaction investigation who was slowly moving a vehicle towards him, which threatened to crush him into another car.

In circumstances where the officer or officers who used deadly force seek qualified immunity, but there is a genuine issue of disputed material fact essential to the determination of whether there is or is not a constitutional violation, a federal appeals court will often rule that it cannot determine whether or not the officers were entitled to qualified immunity until the disputed factual issue is first decided.

The case of Green v. Taylor, No. 06-3583, 2007 U.S. App. Lexis 21593 (6th Cir.) illustrates this exact point. In that case, the court stated that if a vehicle had come to a stop with the engine running, and suspects in the car had their hands in the air or on the steering wheel when officers approached, then an officer who shot and killed a 16-year-old in the vehicle would not have acted reasonably. If, on the other hand, as the officer claimed, the car was backing up, and threatened the safety of the officers or others, the result could be different. Genuine issues of disputed material fact, therefore, barred qualified immunity for the officers.

In the case of Johnson v. Board of Police Commissioners, No. 4:06CV605, 2007 U.S. Dist. Lexis 40292 (E.D. Mo.), the court found that if the plaintiff’s version of events were believed, officers who allegedly pursued him without identifying themselves as police, shot him, beat him, and then shot him again were not entitled to qualified immunity, because the beating and shooting of a person who was already shot and was incapacitated, under these circumstances, would violate clearly established law. The officers, on the other hand, claimed that they had identified themselves as police and only shot him after he had shot at them a number of times, as well as denying that they beat him. Accordingly, further proceedings were required to resolve the factual dispute.

In Finks v. City of North Las Vegas, No. 04-15806, 135 Fed. Appx. 976 (9th Circ. 2005), factual issues concerning whether or not a man was holding a toy gun or otherwise threatening an officer before the officer shot and killed him barred granting summary judgment on the basis of qualified immunity to the officer in the surviving family’s federal civil rights lawsuit.

The defense of qualified immunity is granted or withheld not on the basis of hindsight, but on the basis of what the police officer reasonably believed at the time of the shooting, given what they knew and perceived then. See Bouggess v. Mattingly, No. Civ. A. 3:04CV-180, 426 F. Supp. 2d 601 (W.D.Ky. 2006), ruling, in a lawsuit over the fatal shooting of a suspect by an undercover officer, that the officer was not entitled to qualified immunity because of issues of fact as to whether, at the time of the shooting, he reasonably believed that the suspect was armed and would try to shoot him. The issue was not whether or not the suspect was actually armed, but what the officer reasonably believed.

To further illustrate this principle we examine the case of Blanford v. Sacramento County, No. 03-17146, 406 F.3d 1110 (9th Cir. 2005), In this particular case it is seen that the deputies who shot a sword-carrying schizophrenic man, rendering him paraplegic, after he appeared to be ignoring their orders to drop the weapon and attempted to enter a house, were entitled to qualified immunity. They did not then know that he could not hear their orders, or that he was attempting to enter his own home.  

We can also examine the case of Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142 (11th Cir.), In this particular case the court found that deputies reasonably believed, at the time they shot at a car attempting to escape them by going in reverse, that a deputy who was positioned behind the car was in serious danger of harm, Due to the positioning of the deputy and the actions of the individual intentionally driving the vehicle towards the deputy they too were legally entitled to qualified immunity. The fact that officers may be mistaken in considering a particular individual to be a threat to themselves or others will not bar qualified immunity as a defense, provided that the mistake is reasonable under the circumstances.

An additional case that reflects the justification for officers being granted qualified immunity is the case of Flynn v. Mills, No. 1:03-CV-00515, 361 F. Supp. 2d 866 (S.D. Ind. 2005), In this particular case police officers were found to be entitled to qualified immunity for mistakenly shooting a witness to a shooting who was crawling towards other officers with a gun in hand. Under the circumstances, a reasonable officer could have believed that the witness was the shooter and that they had problem cause to arrest him and use deadly force against him.

                                                           References
Adams v. Speers, No. 05-15159, 2007 U.S. App. Lexis 442 (9th Cir.).
Anderson v. Creighton, 1987). #85-1520, 483 U.S. 635 (1987).
Brosseau v. Haugen, No. 03-1261, 543 U.S. 194 (2004).
Finks v. City of North Las Vegas, No. 04-15806, 135 Fed. Appx. 976 (9th Circ. 2005).
In Flynn v. Mills, No. 1:03-CV-00515, 361 F. Supp. 2d 866 (S.D. Ind. 2005).
Green v. Taylor, No. 06-3583, 2007 U.S. App. Lexis 21593 (6th Cir.).
Haugen v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003).
Johnson v. Board of Police Commissioners, No. 4:06CV605, 2007 U.S. Dist. Lexis 40292 (E.D. Mo.),
Lehman v. Robinson, No. 05-15636, 2007 U.S. App. Lexis 8978 (9th Cir.),
Mitchell v. Forsyth, #84-335, 472 U.S. 511 (1985).
Robinson v. Arrugueta, No. 04-10856, 415 F.3d 1252 (11th Cir. 2005),
Saucier v. Katz, No. 99-1977, 533 U.S. 194 (2001).
Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142 (11th Cir.).

 

 

The Realities of Using Deadly Force

               

By: Dr. Peter A. Barone, Esq.

Do You See Yourself As a Gunfighter?

f-Duty Carry - Yes or No?


Deadly force by law enforcement personnel in the performance of their duties is becoming one of the most controversial and most discussed topics in the media, by the public and in law enforcement agencies. Deadly Force, which can be described as, a force that creates a significant risk of death, consists of an array of ingredients such as laws, weapons, training, physiological imperatives, tactics, wound ballistics, and much more. Officers take an oath to protect society and they take that oath seriously and at times to fulfill that obligation they must use force and at times deadly force. The use of deadly force is a last resort option that in today’s tumultuous society is alive, well and unfortunately having to be used more often due to the actions of perpetrators placing law enforcement officers in a deadly force situation. It can become a creator that consumes everyone associated with it. The end result of the use of deadly force by a law enforcement officer is something that ends in a death; however, the actual path that leads to the officer making the decision to use deadly force is very complex. Because of it being so very complex and fraught with a multitude of variables deadly force makes itself a dynamic and an every evolving issue.

The issue of the use of deadly force by law enforcement is made even more complex due to the comments by the media, the assessment by the departments using policies and standard operating procedures that may not be totally reasonable due to many new developments in the area of Force Science and United Supreme Court decisions, and various types of challenges from attorneys and the courts; not to mention the myopic comments made to the media by individuals who believe that if we make the laws more difficult for law abiding citizens to obtain weapons then we would not have all of these problems. It has been this writer’s experience, over the past 39 years in this field and doing research in the area of use of force, that the majority of individuals who commit crimes do not obtain their weapons at Wal Mart or guns stores and they do not make the normal and required application for a purchasing permit or follow the state and federal mandates for purchasing and registering their weapons. Unfortunately many people who are not possessed of the experience and knowledge of what happens on the streets and in life outside of their domain do not assist in this problem being properly addressed because they are myopically fixed on an issue that is incorrectly understood and assessed them thus resulting in them advocating for c so called cure that is non-applicable to the true problem. When law enforcement officers are performing their duties they have the opportunity to encounter both law abiding and non-law abiding citizens along with individuals who are on legal and sometimes illegal narcotics, or who are in a state of mental frustration and exasperation and who are in possession of hand guns and other types of weapons that create deadly force situations that the officers must respond to for the protection of themselves and others in the community. This is why each of these situations must be assessed individually, on a case by case basis and using the totality of the circumstances criteria and by the law and not public opinion or via a cookie cutter template.  

 

When we take some time to review the issue which are so prominently displayed today in the news and in the minds of law enforcement officers we see that one of the main issues is Deadly Force. Due to this issue being so prominent in the newspapers, on the television news programs and all over the internet it has caused an exacerbation of the situation for law officers when they encounter and are faced with use of force situations. That fact that this topic that appears to have an influence on the manner in which law enforcement officers perform their job is a serious issue for both law enforcement and the citizens they have sworn to protect. It appears, (Dr. Barone’s study has been examining this as one of the main issues of his research) that at times law enforcement officers are possibly allowing themselves to be constrained by their department’s deadly force policy by erring on the side of caution, or possibly worrying more about the administrative issues they may be facing if they violate a departmental order or standard operating procedure. Speaking with officers throughout the country the days of the old slogan “I would rather be judged by twelve than carried by six” is no longer the slogan. When officers would recite this mantra it was their way of saying that they were willing to do what it tool to save themselves and the people they are sworn to protect no matter what it took to include risking their lives to use deadly force and be involved in a gun battle. (In future writings Dr. Barone will present comments made by law enforcement officers who were involved in shootings several decades ago and officers who were involved in shootings as recently as May of 2014 to vividly demonstrate the difference in the mindset of the officer when it comes to making the decision to use deadly force).

 

 

 

 

In addition to being concerned about being injured or killed, or violating their departmental policies, today officers are also very concerned about whether or not their shooting will be considered to be legally justified in both the criminal and civil court arenas.  The irritating and dangerous part of this mindset is that instead of these officers focusing on the life-threatening situation they are facing they may be delaying their response to the threat due to the concern for the policies, procedures, and legal issues they could possibly be facing if it is deemed that they, in their split second decision, will be judged to have taken the wrong action in response to the threat they were facing at the time they acted.



Of great concern at this time is that it appears that society in general is becoming more violent, along with the coinciding downward helix of its morals and ethics, and with this increase in violence it has created, and is currently creating, more use of deadly force situations for law enforcement officers. With this developing situation there is an increasing number of law enforcement officers being called upon to use their firearms in defense of themselves and others. At this same time the media and Monday Morning Quarterbacks, most of whom are totally ill equipped to make any valid assessment of the issues and situation, are standing at the ready to make their assessments known, many of these individuals without one sent ilia of knowledge or experience involving police use of force protocols or the legal decision provided by the United States Supreme Court concerning these situations. These individuals and their inaccurate and emotional comments place more unnecessary fuel on an already heated fire that in the majority of police use of force incidents does not even have a valid reason to be ignited in the first place other than these individual’s myopic and subjectively skewed points of view.  

In addition to the normal comments made by the media and the assessments by the ill equipped Monday Morning Quarterbacks we have a flexible standard that seems to be emerging when the assessment of what the officer did in response to the threat presented to them which is being promulgated by the news media. In my experience, of 39 years in this field and having been a homicide detective and major crimes prosecutor and an attorney and social scientist researching this specific topic, it appears that when an officer shoots a person who is young or very elderly they are chastised, ridiculed and in one case fired for taking what was a valid reason for the shooting and which met the departmental and legal guidelines and standards. However, it also appears, again based on me being an Active Shooter and Mass Killer Instructor and my research, that when law enforcement officers use deadly force in a situation where there is an active shooter using deadly force, there is no issue being mentioned of their actions in a negative manner by the media or even by the Monday Morning Quarterbacks due to the backlash they would receive from the individuals families involved in the incident. The cases are out there and the issues are not hidden and it is amazing what is seen when one takes the time to look and review all of the shootings and other types of use of force. We need to have a commonality and a consistent way in which to make these assessments and not let gender, race or age come into the picture if all of the other prerequisites have been met. It would be very wise and very prudent to actually follow the United States Supreme Court’s rulings and the state statutes put in place by the legislators and not apply the rule of law in a way that is swayed by the media and Monday Morning Quarterbacks.  

That decision is a very powerful one and it is in support of, and also in favor of, law enforcement officers who may have second thoughts about using their weapon when the required situation presents itself to use force, to include deadly force when the situation warrants a certain level of force and not take unnecessary risks and place themselves and others at risk. Terry v. Ohio (1968) vividly demonstrates deference to the legitimate safety concerns of law enforcement officers and the compelling interests of society in protecting those who are charged with enforcing its laws.

 

In addition to Terry v. Ohio we see that in Wikens v. Gaddy (2010) the United States Supreme Court held that the issue of reasonable force is not whether the individual suffered any injury during the incident or encounter but the issues is whether the force was reasonable, not the extent of the injury sustained. The Supreme Court went on to further clarify that the law enforcement officer is entitled to continue to their use of force until a suspect thought to be armed is fully secured. The Supreme Court addressed what law enforcement officers can do if they believe the suspect is thought to be armed so when we insert the fact that the suspect is armed it further bolsters the decision of the high court.

 

When an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, the Court stated, it is not unreasonable to prevent his escape by using deadly force. The Supreme Court went on to say that “Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” In this decision the Court states that a warning should be given before firing “where feasible.” The standard established by this decision does not require that a warning must necessarily be given in each instance before the use of deadly force is constitutionally permissible. The Court in this case was very clear in providing guidance as to when law enforcement could and could not use deadly force.  

 

In the case of Graham v. Conner (1989) The United States Supreme Court discussed and addressed the right of a law enforcement officer to make an arrest or investigatory stop and in doing so the Court stated, that these type of action necessarily carries with it "the right to use some degree of physical coercion or threat thereof to effect it." All the law requires is that it be a reasonable amount of force. The Court went onto say that such reasonableness, however, has to be judged in light of the facts and circumstances confronting the officer, rather than on the basis of their underlying motivation or intent. The issue that was addressed in this case was whether the officer acted in an “objectively reasonable” manner based on what they knew at the time. The Court advised that the reasonableness of each particular use of force has to be judged and the view must be from the perspective of a reasonable officer on the scene, and must make an allowance for the fact that police officers often have to make "split second" decisions about the amount of force that is necessary. The additional issue here is that officers should not be burdened with having to think about what will the department say or do pertaining to this incident. They should not have to be thinking about whether or not the department will have someone that is familiar with the law and has some Force Science training regarding body movements, cognitive processing and response time, and will the prosecutor use the required standard to assess their actions properly or be influenced by something outside the law Graham v. Conner (1989). 
 

The assessment and the investigation of the incident must be based on the facts that the officer knows at that time, or reasonably believes that he or she knows, rather than looking back at the circumstances with hindsight or on the basis of information later discovered but not then known. An officer may, therefore, act upon what he reasonably believes or perceives is a threat of death or serious bodily harm to himself or others, and the fact that he may, for example, be mistaken in believing that a suspect confronting him is armed, will not alter the legitimacy of his use of deadly force Graham v. Conner (1989).

 

In Garcyznski v. Bradshaw (2009) the 11^th Circuit held that at least where orders to drop a weapon goes unheeded an officer is not required to wait until an armed felon has drawn a bead on the officer or others before using deadly force.  In the case Hudson v. McMillian (1992) the United States Supreme Court reaffirmed its prior decision where the Supreme Court held that a "significant injury" is not a threshold requirement for stating an excessive force claim. Instead, the Court stated the core inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm." 

 

When we examine the case of Williams v. City of Grosse Pointe Park (6th Cir. 2007), the court found that a police sergeant acted objectively reasonably in firing at a stolen car, striking the driver in the back of the neck and leaving him paralyzed. The court in this case discussed the facts that the motor vehicle had been reported stolen, was being driven by a minor, and who had evaded attempts to block the vehicle, going into reverse to collide with an officer's cruiser. When the sergeant pointed his gun at the driver's head, he was knocked down by the vehicle, prior to shooting several rounds. The court advised that no jury, who were presented with the facts, could reasonably find the use of deadly force unreasonable based on the drivers decision to flee and the immediate threat.

To further support the use of deadly force by law enforcement officers where they are presented with the proper level of threat the United States Supreme Court, in the case of Scott v. Harris (2007), addressed the question of the use of deadly force in the form of a vehicle instead of a firearm. The two questions that the Supreme Court addressed involving the use of deadly force were: Does a police officer who stops a high-speed chase by ramming a fleeing suspect's car violate the Fourth Amendment's protection against unreasonable seizure? Was it "clearly established" in federal law that an officer violates the Fourth Amendment by using deadly force during a high-speed chase?

In The United States Supreme Court the majority held that "it is clear from the videotape that [Harris] posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." The opinion weighed the need to prevent the harm Harris could have caused against the high probability that Harris himself would be harmed by Scott's use of force. When examining the Court’s decision and reasoning in this case it appears that the Court also took into account Harris's culpability for starting the chase in the first place. The Court concluded that it is reasonable for a police officer to use deadly force to prevent harm to innocent bystanders, even to the point of putting the fleeing motorist at serious risk of injury or death Scott v. Harris (2007).

                                                                  Conclusion

With the increasing amount of violence being perpetrated in our society today and the increase in the number of law enforcement officers who have been killed in the line of duty, (105 in 2013 and as of today 56 which appears will surpass last year if it continues at this rate) can we afford to not allowing these law enforcement officers to perform their duties without being hamstrung with the burdens discussed in this writing at the risk of them losing their lives, or the lives they have sworn to protect? At this point in time there is a haunting question that we must be concerned with which is “How much will all of these factors and variables affect law enforcement officers when they are in the process in making the decision to shoot or not shoot to protect themselves or others in the performance of their duties? If the officers are more concerned with what will happen to them or their families because we are not following the guidance and law set down by the United States Supreme Court are we prepared to deal with the result which could be serious bodily injury to the law enforcement officer or the person or people they are trying to protect notwithstanding the fact of all of the United States Supreme Court decisions supporting their actions. The rule of law must be applied equally to all people in the United States including law enforcement officers.

References

Terry v. Ohio, 392 U.S. 1 (1968).   

 

 

 

Garynski v. Bradshaw 573 F.3d 1158 (11th Cir. 2009).

 

 Hudson v. McMillian, 503 U.S. 1 (1992).

 

Scott v. Harris 433 F.3d 807, 811 (2007). 

 

 Wilkins v. Gaddy, 130 S.Ct. 1175 (2010).

 Williams v. City of Grosse Pointe Park, No. 05-2409, 496 F.3d 482 (6th Cir. 2007)

 
 
 
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As far back as the case of

 

 

 

 

 

 

Why Officers Shoot Suspects Multiple Times: Johnson City Police Shooting

When reading some of the more glaring headlines regarding officer involved shootings, the media accentuates the fact that officers shot the suspect six times or twenty times and  did they have to do that when they should have shot them one time. The people making these comments usually were not on the scene, have never been a law enforcement officer or never dealt with someone who has been on drugs or even marijuana which has been laced with some other drug. There is a very valid reason why law enforcement officers and military personnel are trained to continue to fire their weapons until the existing threat is stopped.

The reality of an officers life is that they do not begin their day or shift, and this information is from the studies I have read, cases I have reviewed, research I myself have conducted and also being a law enforcement officer for the past  39years, with the idea of wanting to use force and definitely not deadly force. The sad fact of the matter is that research indicates that approximately 600 criminals are killed each year by police officers in the United States. Some of these killings are in self-defense, some are accidental, and others are to prevent harm to others (Mitchell &  Levenson, 2006; Dr. Barone’s Research Project). In 2005 153; in 2011 169 officers died in the line of duty and in 2013 there were 113 law enforcement officers were killed in the line of duty which was the lowest in 54 years. All of these officers died on duty and the majority were killed intentionally with others dying in on-duty related vehicle accidents or dying of heart attacks while on duty

Apart from the universal reactions and individual personality and history of the officer, certain features of the line-of- duty shooting incident itself can affect the severity, persistence, and impact of post-shooting symptoms and reactions (Allen, 2004; Anderson et al, 1995; Blau, 1986; Bohrer, 2005; Honig & Sultan, 2004; McMains, 1986b). Each officer is different and has a different way in dealing with crisis grief. One obvious factor is the degree of threat to the officer’s life that they face leading up to the use of deadly force. This can operate in two ways. First, the officer who feels that he or she was literally about to die may be traumatized by the extreme fear involved, but may feel quite justified and relatively guilt-free in using deadly force on a clearly murderous suspect. However, in a situation where the danger was more equivocal, there will be less of the fear factor and can create an atmosphere for more second-guessing about what degree of force was actually necessary (Allen, 2004; Anderson et al, 1995; Blau, 1986; Bohrer, 2005; Honig & Sultan, 2004; McMains, 1986b).

Police officers pride themselves in their ability to manage a tense situation and perform under pressure, so they may feel overwhelmed by doubt and self-recrimination where the situation abruptly got out of control and turned deadly. Even if they won’t admit it to their brother officers, many officers feel genuinely sad at having had to take a human life, even if they objectively recognize that they had no choice in the situation and that the perpetrator clearly asked for it (Miller, 2006). This information concerning the feelings expressed by officers after a officer involved shooting has also been demonstrated in the ongoing study by Dr. Barone. Human nature being what it is, police officers and others, such as soldiers, who are trained to kill when necessary, cannot just shed their familial, religious, and cultural upbringing when they don the uniform. Many times we see that an officer who has been involved in an officer involved shooting where a suspect has been seriously injured or killed becomes irritated at his colleagues who want him or her to play the happy warrior, while they have no clue as to the turmoil the officer is going through he is going through. The officer is at a very critical and emotional place at this time and is actually feeling pain and at times hurting and is in need all the support he or she can get during this time of emotional upheaval. With the officer needing their colleagues support and also fearing rejection and alienation they may not want to burst their colleagues’ bubble and the feel compelled to put up a brave facade so as not to alienate this well-meaning support from their peers. Painful as putting up this false front may be, it’s still better than total isolation during this time of crisis (Miller, 2006). The officer is also wondering why they are going through all of these emotional, physiological, psychological and legal issues when they were just doing their job when the suspect decided to place them into a situation where they had no choice to use deadly force to survive.

There is a recent officer involved shooting incident that occurred in Johnson City New York, which is located near Elmira New York, involving law enforcement officers from a  police agency having 36 full time officers. These officers are issued Glock .40 caliber handguns and use .40 caliber Federal Tactical hollow point rounds.

On March 31, 2014 the department’s dispatcher received a phone call at approximately 7:00 AM from a business called Southern Tier Imaging and the person on the line advised that they should send the police because people are going to die. The further stated on that there’s a dirty bomb in the MRI machine and that is how the terrorists are getting them in.

In the background of the 911 call employees are heard trying to talk to someone named Clark. The dispatchers receive another call from the same location on the 911 system advising that they need the police because there is an irate man on the premises. No description of the suspect was provided and both callers did not remain on the line to provide additional information.

At approximately 7:03AM a 18 year veteran Police Officer, David Smith, arrived on the scene of the call for service and made the error of driving past the entrance and the suspect who was exiting the building Officer Smith did not see the suspect and when he exited his patrol vehicle he did not see the suspect coming up from behind him. The suspect ambushed officer Smith from behind and repeatedly punched officer Smith and then yanked officer Smith’s weapon from his holster and shot the officer at point blank range essentially executing him with his own service weapon.

The mistake by Officer Smith is one that provided the suspect with an easy and unsuspecting target. Officers responding to any in progress call where there is any possibility of aggression or violence requires the officer to stop before the location so they can obtain a true vista of the scene and what may be unfolding or individuals exiting the scene that may be involved in the situation. The issue here was the condition of the suspect; which even if Officer Smith would have stopped before the front of the location the condition of the suspect would have more than likely neutralized the cautious actions of Officer Smith.

As Officer Smith fell to the ground, after being executed with his own weapon, a back up officer arrived and parked his vehicle some 30 feet behind Officer Smith’s vehicle. As the back-up officer spied his fellow officer and the suspect, who were both to his front he saw officer Smith’s lifeless body fall to the ground with the suspect standing in front of the lifeless body. The back up officer then saw the suspect straddle the lifeless body Officer Smith and shoot him a second time in the head. The suspect then looked up and saw the back-up officer and then started towards him firing the remaining rounds in Smith’s pistol at the back-up officer.

The back up officer waited for a clear target and shot the suspect 7 times from 30 feet away and the suspect fell to his knees but was still conscious.  The back up officer began shouting out orders to the suspect to get on the ground; however, the suspect did not comply. The back up officer approached the suspect while keeping his gun trained on him and when the back up officer got close enough he attempted to kick the suspect to the ground instead of shooting him again.

The mistake that occurred here with the actions of the back-up officer was that he did not continue to fire at the suspect until the threat was gone. It is clear from the information obtained during the subsequent investigation of the shooting that the suspect was not compliant, he had just shot and executed a police officer, and was just shooting at the back-up officer and was not being compliant with the orders of the back up officer which equates to a continued resistance.

Critical questions arise at this point involving the actions of the back-up officer are concerned with his decision not to continue shooting and to approach a suspect who has just shot and executed a police officer with his own weapon after taking it from him; had just been shooting at the back-up officer and was not being compliant with the orders of the back up officer which and still resisting. What was going through the officers mind at this time is what is critical to understanding the type of additional training officers need to be provided with to keep them alive and to keep others alive that may have been involved in this incident had the deadly situation unfolded inside the facility.

It was at this point that the suspect grabbed the back-up officers leg and pulled him to the ground (after being shot 7 times) and the suspect got onto the back-up officers back and put him in a bear hug while trying to grab this officers gun. The back-up officer was able to roll onto his right side and shot the suspect in the torso under his arm pit (this was the eight bullets in the suspect). At this time the back-up officer was so fatigued and exhausted that he could not retain possession of his handgun and the suspect managed to get his finger onto the trigger and fired a round that did not hit anyone. The weapon did not cycle and the weapon malfunctioned leaving an empty casing in the chamber.

The ability to fight or to struggle for your life is something that cannot be continued for a very long period of time. If you look at wrestlers you see that they do what are called three minutes drills where they try to spin around the back of their partner for three minutes to build up their stamina and cardio ability. If you look at hockey players they are shifted in a game for 20 to 30 second shifts due to them going all out in their skating and checking up and down the ice because of the fatigue factor which even affects these types of extremely well conditioned professional athletes. This state of physiological exhaustion is called “fatigue threshold” (Hunter, Duchateau, & Enoka, 2004).

Fatigue threshold can be defined as the sudden physical exhaustion experienced during a force encounter when an officer cannot effectively perform to either control a suspect or defend himself. This condition is also known as “hitting the wall,” and it is when the officer experiences a sudden depletion of strength. It is more prevalent and occurs quicker today due to what today’s officer are required to carry on their belts, the type of uniforms they wear, and the heat retaining bullet proof vests they are required to wear.

The fatigue threshold is not a contrived concept but an actual physiological phenomenon. Normally when a person is exerting him or herself physically, such as jogging, riding a bike or an elliptical machine, they are performing what is known as an aerobic exercise. During these types of exercises the person’s body is generally able to sustain such workouts for long periods of time. The reason the body can sustain the workouts for sustained periods of time are because it is able to keep a steady flow of oxygen and fuel to the muscles which are essential to continue the body’s movement Donetelle, 2005). When examining the word aerobic it is seen that it literally means to exercise “with oxygen.” When examining the word anaerobic exercise, which is different in both duration and intensity of the muscular contractions involved, it is seen to be in contrast to aerobic. Anaerobic exercise is faster and more intense and it is similar to strength, weight training or sprinting (Hunter, Duchateau, & Enoka, 2004).

The key difference between aerobic and anaerobic is that the muscles are contracting so quickly and/or powerfully that oxygen the body is taking in cannot provide enough fuel to sustain it aerobically (a condition known as hypoxia). Instead, the body tries to keep up by using glycogen or sugar it produces and processes without the advantage of oxygen to feed the muscles. This is a far less efficient process than aerobic exercise, but when the body is exerting too much explosive muscle movement too quickly, the anaerobic process is the only alternative and this is what occurs when officers are battling with suspects for their lives similar to what the back-up officer was engaged in when the two security guards interceded and assisted in taking the suspect into custody (Donetelle, 2005).  

Hitting the fatigue threshold is not the same as just being tired. This is the very scary experience which involves sudden exhaustion to the point that you cannot physically function or even move. This state of being occurs because the body is required to produce energy so quickly to feed the insatiable fast twitching muscles, it correspondingly builds up a waste product faster than it can expel it and this causes a real physiological problem for the body. The waste product is lactic acid. If the body is unable either to keep the muscles fed (through respiration and blood flow) and/or remove the lactic acid during the lactic acid fermentation process (lactic acidosis), the muscle will simply stop contracting and when this occurs the just simply shut down (Hunter, Duchateau, & Enoka, 2004). A good example would be the engine of an automobile. If someone were to stick an object in the tailpipe of a motor vehicle, cutting off the exhaust’s ability to escape the engine, the car would simply stop running. One second it’s running, the next it’s stopped. Normally it takes approximately 30 seconds of maximized and intensive exercise or exertion before this shut down can occur and at times it can be up to 120 seconds depending on the condition of the officer and the level of consistent exertion being accomplished (Donatelle, 2005).

If an officer or any person, involved in this type of activity, gets to this point and the person they are battling with has demonstrated the desire to seriously harm them this is when a person or an officer realizes that they can be killed if they reach the point of fatigue threshold, and more than likely not knowing what they are experiencing is actually called, that they could die and they must do what is necessary to stop the threat and attack by the suspect to include shooting them or taking their life. The back-up officer was very lucky in this situation in that before he was able to hit this threshold he had the two security officers respond to assist him. The United States Supreme Court in Graham v. Connor (1989) advised that “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

It is very important to understand that in this type of situation a reasonable officer understands that any suspect who is willing to fight the police with such intensity that he can bring the officer to the limits of his strength is dangerous and cannot be allowed to overcome the officer, gain the upper hand or control the outcome. This is particularly valid if the suspect has a history of violence, has threatened the officer, or possesses a weapon. It is at this time that is may be necessary for the officer to consider and then actually employ greater levels of force than may otherwise appear objectively reasonable, up to and including deadly force. Unfortunately when these situations present themselves they rarely look good on video; however, it must be remembered that undue influence from the public or from family members of the suspect and those with an untrained eye should never dictate our standard of objective reasonableness and the totality of the circumstances that these actions must be judged by at their conclusion. The law requires we place ourselves in the officer’s shoes, taking into account his physical condition at the time of the encounter..The fatigue threshold may play a prominent role in such an analysis and must be applied consistently.

It was at this time, when the fatigue threshold was beginning to set into the back-up officer, that security guards from the hospital arrived and put the suspect, who now had nine rounds in his body, in a choke hold from behind and the suspect was still resisting at which time a second security guard arrived and finally the back-up officer and the two security guards were able to finally get the suspect secured in hand cuffs.

The suspect was placed onto a stretcher and as he was being wheeled into the hospital he was still ranting, raving and struggling. After the suspect was in the emergency room for a while one of the detectives spoke to the suspect to get s statement from him and he stated that he shot him with his own f---ing gun. The suspect died a little while later and when the results of the toxicology report came back it showed only THC (marijuana in his blood and there was a second round of toxicology being worked up and the results are not available at this time. The current speculation is that the marijuana may have been laced with another drug; possibly fentanyl. An alternate speculation is that the suspect was taking a prescription testosterone drug called Andro Gel which an overdose may have caused the zombie like behavior exhibited by the suspect that day.

                                                                Conclusion

Law enforcement officers are confronted with dynamic flowing incidents that come about instantaneously and at times without warning and have to respond instantaneously in the proper manner and within prescribed protocols and legal restrictions with the knowledge that every action they have taken will be examined and Monday morning quarterbacked; however, the officers and agents continue to perform their duties risking their lives for the residents they have sworn to protect. There are so many different variables that can be present when officers encounter individuals who are armed and who intend to inflict violence and horror on society. Proper assessment of the issues and all of the existing circumstances that the officer encountered at the time of the shooting must be properly and fairly assessed by the reviewing individuals and All variables must be explored if the system is going to work properly.

                                                                  

                                                              References

Allen, S.W. (2004). Dynamics in responding to departmental personnel. In V. Lord (Ed.), Suicide by Cop: Inducing Officers to Shoot (pp. 245-257). Flushing: Looseleaf Law Publications.

Anderson, W., Swenson, D. & Clay, D. (1995). Stress Management for Law Enforcement Officers. Englewood Cliffs: Prentice Hall.

Blau, T.H. (1986). Deadly force: Psychological factors and objective evaluation: A preliminary effort. In J.T. Reese & H.A. Goldstein (Eds.), Psychological Services for Law Enforcement (pp. 315-334). Washington DC: USGPO.

Bohrer, S. (2005). After firing the shots, what happens? FBI Law Enforcement Bulletin, September, pp. 8-13.

Donatelle, R. J., (2005). Health: The Basics, 6th Ed., San Francisco: Pearson Education, Inc.

Graham v. Connor, 490 U.S. 386, at 397 (1989).

Honig, A.L. & Sultan, E. (2004). Reactions and resilience under fire: What an officer can expect. The Police Chief, December, pp. 54-60.

Hunter, S., Duchateau, J., & Enoka, R., (2004). Muscle Fatigue and the Mechanisms of Task Failure, 32(2), Exercise Sport Science Review,

McMains. M.J. (1986b). Post-shooting trauma: Principles from combat. In J.T. Reese & H. Goldstein (Eds.), Psychological Services for Law Enforcement (pp. 365-368). Washington DC: US Government Printing Office.

Miller, L. (2006). Practical Police Psychology: Stress Management and Crisis Intervention for Law Enforcement. Springfield: Charles C Thomas.

Mitchell, J. T. & Levenson, R. L., Jr. (2006). Some thoughts on providing effective mental health critical care for police departments after line-of-duty deaths. International Journal of Emergency Mental Health, 8(1), 1-5.