By: Dr. Peter A. Barone, Esq.
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 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.
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 11th 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).
As far back
as the case of
