If you grew up on John Wayne and Roy Rogers movies like I did, you understand the Code of the West. There were certain things the guys with the white hats just never did — like shooting an unarmed suspect or shooting a suspect in the back. Is it okay for modern police officers to violate the “Code?” Yes, in some circumstances, you can be justified in violating the “Cowboy Way.”
The incidents below are modified a bit from the real events to ensure anonymity, but they outline the general circumstances in which the involved officers shot an unarmed suspect. Both were righteous shoots.
In one incident, an officer was attacked by two unarmed assailants. The officer was barely holding his own with the first assailant when the second bad guy decided to join in. At that point the officer realized he was badly overmatched and was afraid he might be overwhelmed and knocked unconscious, so he made a crucial decision. The officer drew his sidearm and shot the first attacker once in the lower torso. Both assailants decided enough was enough and the officer — with the help of arriving backup units — quickly got both suspects secured. They then radioed for Emergency Medical Services for the wounded assailant.
The second incident involved two officers at a domestic dispute. An unarmed but huge male aggressor had already pounded the lady of the house and immediately attacked one of the arriving officers. As the first officer was recovering, the suspect attacked the second officer, shattering facial bones with his fists and then made a grab for her sidearm. At that point the first officer gave him two hollow points in the torso, ending the fight.
Clearly, both of these incidents require careful, independent investigations that are beyond reproach. The totality of each incident must be weighed against the fact that deadly force was employed against suspects who were attacking with nothing more than fists and feet. The officers need to clearly document their thought process during the fight and articulate how they were in legitimate and imminent fear for their life and/or the life of their partner.
Some shootings of unarmed suspects are mistakes when a suspect’s actions were interpreted as deadly or when they were holding something innocent that was mistaken for weapon. Such unfortunate events will always occur, no matter how hard we train or how long we wait to make sure our deadly force decision is correct. Police officers must make those deadly decisions in the blink of an eye, while the attorneys and courts will have years to dissect the surrounding circumstances. The world we live in is not clearly black and white and police officers spend much of their time in the gray outer fringes of absolute certainty.
How about the idea of shooting a suspect in the back? The Tennessee v. Garner decision created clearly defined limits on the use of deadly force to stop a fleeing felon, but within those limits, a shot in the back can certainly be justified. In the role of protecting a life other than our own, it is a simple matter to justify shooting someone in the back if they are in the process of inflicting force likely to cause death or great bodily injury to a third party. The shots at the domestic call mentioned above were from the side, but would have been just as appropriate if fired into the big man’s back.
Great hay has been made in court of cases where a suspect was shot in the back during a wild melee. Research has shown how reaction times and spinning bodies can combine to result in a target that was facing you when the firing stroke began, but had turned their back by the time the bullet impacted. Again, the investigation and reports must document the high speed and extreme exertions that could result in a back hit on a moving target. I can name a couple of incidents where officers tried to land arm blows with an impact weapon that ended up being head blows as the target moved wildly during the scuffle.
In some cases, we see officers take massive abuse and still not resort to deadly force, even though they would have been justified. Several months ago a friend was one of three officers attempting to make an arrest following a vehicular pursuit. The suspect punched my friend hard enough to break his jaw, decked a second officer and then — you ready for this one? — punched a K-9 so hard the dog refused to reengage.
When their expandable batons had no effect on large muscle groups, the officers gave the guy a couple of severe head strikes with the batons — again, with no effect. Deadly force with firearms would have been justified and the head blows with metal batons could constitute deadly force in most jurisdictions. Only the arrival of enough manpower to physically dogpile the suspect saved him from gunshot wounds. They suspect the man was on PCP, though we will never know, because a prosecutor denied a request for a search warrant for a blood draw.
I was in a dust up with a PCP user early in my career and he damn near whipped six of us. At one point a Sheriff’s Deputy hit him in the head — Louisville Slugger-style — with a 36 inch riot baton with little effect other than a severe laceration. Some people become unstoppable when they are jacked up on the right combination of illicit drugs and adrenaline. Even when firearms are used, we have a few reports of suspects taking multiple hits from rifles and shotgun slugs and staying on their feet. Sometimes a bullet to the brain or upper spine is the only certain way to put them down.
So, with all appropriate apologies to Gene, Roy, and the Duke, sometimes the good guys do shoot unarmed men. And, sometimes we shoot ‘em in the back. And, sometimes we shoot ‘em repeatedly because they are still upright and posing a threat. If the totality of the circumstances would have resulted in a “reasonable man” fearing for their life in the same situation, we can justify these shootings. The law authorizes us to use that level of force necessary to overcome the suspect’s level of resistance to our lawful arrest.
Sometimes using deadly force against an unarmed suspect is the only option available.