Part 2 of a 2-part Force Science News series
In Part 1 of this special series, the Force Science Research Center explored legislation proposed, and ultimately recalled, by a NYS Senator that would have required officers to “shoot to wound” and the practical reason why this idea doesn’t make sense.
In Part 2, we share the legal and tactical problems with the “shoot to wound” concept:
A shoot-to-wound mandate would “not be valid legally” because it sets a standard far beyond that established by Graham v. Connor, the benchmark U.S. Supreme Court decision on police use of force, says former prosecutor Jeff Chudwin, now chief of the Olympia Fields (IL) PD and president of the Illinois Tactical Officers Assn.
Recognizing that violent encounters are “tense, uncertain and rapidly evolving,” the Court “does not require officers to use the least intrusive method” of forcefully controlling a threatening suspect, but “only what’s reasonable,” Chudwin explains. When an officer’s life or that of a third party appears in jeopardy, shooting can be justified as reasonable.
By legal definition, the possible consequences of deadly force include both death and great bodily harm. “The law has never broken these 2 apart,” Chudwin says, which is what Paterson’s proposal tried to do. “He’s saying that police should only shoot someone just a little bit. Deadly force is not about ‘just a little bit.’ Any time you fire a firearm, there’s a substantial risk of great bodily harm or death. The law doesn’t even so much as suggest that deadly force should be just enough to wound but with no probability of death. That’s plain wrong legally and tactically, and sends the wrong message.”
Attorney Bill Everett, a risk-management executive, use-of-force instructor, former LEO, and National Advisory Board member of the FSRC, agrees. As he explains it, use of force from a legal standpoint is a matter of “proportionality,” and there are 2 ways to measure it: what’s necessary and what’s reasonable.
He draws the analogy of a house being on fire. “Firefighters can pour what seems at the time to be about the right amount of water on it to stop the fire versus not using one drop more of water than necessary, even in hindsight, to put the fire out.” The former fits the “reasonable” approach, the later is the “necessary” perspective and is the essence of Paterson’s shoot-to-wound/minimal force bill.
“When you impose a standard of strict necessity, you require officers to do a whole lot of thinking in a situation where the Supreme Court recognizes there’s not a whole lot of time to think in,” Everett declares. Under a shoot-to-wound directive, “an officer faced with a suspect running at him with a jagged bottle is expected to think about getting target acquisition on an arm or a leg, while his own life is at risk.” The hesitation it is likely to create will only heighten his risk.
The critical issue of officer survival aside, Everett predicts that legislation like Paterson proposed would “substantially expand the civil and criminal liability of police officers.” He asks, “What if an officer tries to wing a suspect and ends up hitting an innocent bystander? What about the liability there? What if an officer tries to shoot an offender’s limb but shoots him in the chest instead? How does his true intent get judged?
“Right now under the Supreme Court’s prevailing standard lawyers and judges in a large percentage of police shootings can look at the facts and conclude that there is no basis for allowing a civil suit to go to trial. But if you change the standard, there’ll be a lot more cases going to juries to evaluate: 1) did the officer intend to wound or did he intend to kill the suspect and 2) was the suspect’s death absolutely necessary. A trial will become the rule rather than the exception.
“Who in their right mind would become a police officer in a jurisdiction where shoot-to-wound and standards of strict necessity became the law? Those ideas may have some humanitarian appeal, but once you go beyond the Disneyish attraction and face the reality, support for this thinking has to evaporate.”
Modern training teaches that when an officer uses deadly force the intent should be to stop the suspect’s threatening behavior as fast as possible.
Like it or not, this is most reliably done by “disrupting the central nervous system, by inducing severe hemorrhaging and/or by destroying skeletal integrity” (bone structure), in the words of firearms trainer Ron Avery, himself a championship shooter, head of the Practical Shooting Academy and a member of FSRC’s Technical Advisory Board.
Shooting for an assailant’s center mass is usually considered the most effective first option because the upper torso combines a concentration of vital areas and major blood vessels within the body’s largest target. “When the risk of failure is death, an officer needs the highest percentage chance of success he can get,” Everett notes.
Shooting instead for a smaller, faster-moving arm or a leg with the intent to wound rather than to incapacitate invites a myriad of tactical dilemmas.
• An officer’s survival instinct may exert an overpowering influence on target selection. “I don’t care how good a shot you are,” says Avery, “if your life is threatened you’re going to go for the surer thing first and worry about your assailant’s life being saved second. If a guy is running at me with a blade, the last thing I’m going to be thinking is ‘I’m going to shoot him in the arm.’” Hence, shooting for center mass may become a psychological default.
• Poor shot placement is bound to increase. Even when officers are trying to shoot center mass, they often miss. Lewinski recalls a case he was involved in where an officer firing under high stress just 5 feet from an offender failed to hit him at all with the first 5 rounds and connected with the next 4 only because the suspect moved into his line of fire. “Hitting an arm or a leg on a moving suspect with surgical precision will be virtually impossible,” Avery asserts. “I could probably count on 1 hand the individuals who can make that kind of shot under the pressure of their life on the line. Expecting that level of performance by police officers on an agency-wide basis is ludicrous.” Misses may well go on to injure or kill someone else.
• Use of certain weapons might be discouraged. “Because of the spread pattern, an officer might be precluded from grabbing a shotgun, for fear of hitting more vital areas when he tries to shoot to wound,” Everett speculates. “If the offender has a fully automatic weapon, say, should an officer be prevented from using the best defensive weapon he may have because it might have sweep or rise?”
• “Successful” shots could be dangerous to people besides the suspect because of through-and-through penetration. “Virtually every police round today is designed to penetrate heavy clothing and 10 to 12 inches of ballistic gel,” explains Chudwin. “Rounds with that capability will penetrate even the biggest arms” and could, like misses, then travel on to hit unintended targets in the background.
• “Successful” shots that don’t persuade an offender to quit leave the officer still in peril. When we know from street experience that even multiple center-mass hits don’t always stop determined, deranged or drugged attackers, “how many officers would be murdered by offenders who get shot in a limb and are still fully capable of shooting back?” Chudwin asks. Indeed, Avery believes that shooting an offender without incapacitating him “may just infuriate him, so he doubles his effort to kill you. There is no dependable correlation between wounding someone and making them stop.”
• Shooting to wound reflects a misapplication of police equipment. “Less-lethal options should be attempted only with tools designed for that purpose,” Avery says. “If you deliberately use deadly force to bring people into custody without incapacitating them, you’re using the wrong tool for that job. Also if you shoot them in the arm or leg and you destroy muscle tissue, shatter bone or destroy nerve function you have maimed that person for life. Now attorneys can play the argument of ‘cruel and unusual punishment’ and pursue punitive damages for destroying the capacity of your ‘victim’ to earn wages and so on. You don’t try to just wound people with a gun. Period.”
The experts we consulted agreed that advocates who push a shoot-to-wound agenda appear to understand little about human dynamics, ballistics, tactics, force legalities or the challenges officers face on the street. Chudwin has found that these critics of police practices can often be enlightened if they are invited to experience force decision-making scenarios on a firearms simulator.
Avery has a more dramatic, if fanciful, idea. “Put them in a cage with a lion,” he suggests. “Then let’s see if they shoot to wound.”