Officer involved shootings are unique events — separate and distinct from the external factors that may have led up to them. It begins at the academy, when cadets first learn the rules of firing a weapon at another person. Sight picture, sight alignment, trigger control. Never point a weapon at anything you aren’t prepared to destroy. We don’t shoot to kill — we shoot to stop. All guns are always loaded. Keep your finger off of the trigger until you’re sights are on the target! It is the high degree of training, which makes the law enforcement officer’s burden of justification a higher standard than most others.
Firearms are a symbol of police authority. More than any other piece of clothing or equipment, it is the firearm that designates who is in charge. The firearm is both passive and active at the same time; its mere presence, hanging in a holster off the hip of an officer is plain-speak regarding the potential outcome of any violent episode. It communicates without trying to impress and it can be relied upon when necessary to persuade, to injure, and sometimes, to kill.
Yet whenever a law enforcement officer in the course of his duties discharges a firearm at another it is not referred to as a shooting. It is bigger than that. It is a police-involved shooting — complicated, knotty, tangled, and perplexing. The shooting, regardless of how clear-cut the circumstances cannot be simplified, it must be analyzed under a complex formula prescribed to by the profession of law enforcement. The shots can’t be shrugged off like the dizzying spray of rounds in a Tarantino movie. Each shot must be accounted for; tracked and collected, recorded, photographed, and described in countless reports from initial incident reports to investigative reviews to autopsy findings.
As an officer once stated, “It’s like the whole world comes to a screeching halt when an officer fires his gun.”
It is odd how at times certain areas of the country seem to have disproportional number of police-involved shootings. Whenever researchers see trends, they narrow in on them and ask, “Why?”
Most recently, Orlando (Fla.) has been criticized due to the perception that there is an increased number of officer-involved-shootings. Not long before that it was Jacksonville (Fla.) Spokane (Wa.), Albuquerque (N.M.), and Las Vegas (Nev.). There is always speculation as to why these clustered events occur — questions raised about organizational leadership, training protocols, and hiring practices within the police agency.
Law enforcement officials are usually quick to respond with their own analysis of the situation, nearly always justifying spates of police-involved shootings on rises in community violence. They often cite gang activity, increased drug use in the community, and disintegration of community standards to blame for the frequency of events which they say lead to police shootings.
The evidence shows, however, that whatever the cause of a police-involved shooting, officers are nearly always cleared by a Grand Jury and exonerated from any criminal sanctions. Most will suffer no discipline at work, and they will usually prevail if ever a plaintiff challenges them in civil court. This fact represents two sides of the coin. There are those who will interpret these statistics to mean that this is proof — positive that officers are well trained and make good decisions under stress while others see the statistics as troubling, more evidence that there is collusion and cover-up in the system.
Decision Making as an Applied Science
Officers must never lose sight of the fact that the use of deadly force requires a careful analysis of the certain facts and circumstances which are present at the moment deadly force is used. The deadly force equation is an applied science that requires a full accounting of those facts and circumstances in order to justify the conclusion in retrospect. It’s because of the severity of this unique brand of force that deadly force has its own unique decision-making algorithm.
Though all law enforcement use of force is based upon a reasonable standard as prescribed by the 4th Amendment of the U.S. Constitution, deadly force requires a deeper and more complete analysis in order to justify its use. In order for deadly force to be justified by a law enforcement officer, regardless of whether the intended recipient of the force lives or dies, the officer must be able to articulate and establish a reasonable belief that his/her life or some other person’s life was in imminent danger of suffering death or serious bodily harm from the actions of another. That’s the first part of the equation, a reasonable belief that the officer or some other person was imminently in danger of death or serious bodily harm.
Once established, officers must then be able to articulate four distinct elements to account for the reasonable belief.
First, an officer must reasonably believe that a subject had the ability to cause death or serious bodily harm to the officer or another. Determining ability requires that the officer recount a specific feature of the resistance that likely would have, if allowed to fully transpire, result in the officer’s or another’s death or serious bodily harm. As an example, a person who holds an object that can pierce, penetrate, slash, cut, cause significant bodily trauma or in other ways leave broken bones, permanent disfigurement, scarring, or extended hospital stays would be said to have the ability to cause death or serious harm.
This would, of course, include the possession of conventional weapons like knives, guns, or explosives, but could also include any item that could be wielded to cause the type of injuries described — from cement bricks to liquor bottles to ballpoint pens. Further, determining a subject’s ability to cause death or great bodily harm to another may extend to allow for something more ambiguous like an attacker’s much larger size in relationship to a defending officer. Reasonable minds may agree — or disagree — that very large subject’s would inherently pose an elevated danger to much smaller officers if the two should engage in a violent fisticuffs encounter. However the officer describes the event, they must show within a reasonable degree of certainty that the subject presented the ability to cause them or another serious harm or death at the time deadly force was used.
Second, an officer must reasonably believe that if the subject does indeed posses the ability to cause death or serious bodily harm, then the subject must also have the opportunity to cause such harm due to the immediacy and proximity to the endangered other. For instance, a subject who possesses the ability to cause death with a sharpened knife, may lack the opportunity if the knife’s inherent cutting qualities are mitigated by distance. Where a person wielding a firearm may permit the subject a deadly opportunity to cause death or serious bodily harm from hundreds of yards away, a person wielding a knife would have no such opportunity at such a great distance. The element of opportunity must be fleshed out in the description articulated by the officer and the opportunity must be imminent, that is to say occurring within the moment that deadly force was used.
Third, an officer must reasonably believe that a subject possesses the intent to cause death or serious bodily harm to himself or another, either deliberately or incidentally to some other unlawful action. How intent is established is left to the officer’s analysis of the observable events and an articulated explanation of the totality of circumstances that gave rise to his/her reasonable belief that the actions of another if allowed to continue, would be likely to cause death or serious bodily harm to another. Though no one can say with absolute certainty what is contained in the mind of another, officers are expected to draw conclusions based on what reasonably appeared to be likely at the moment deadly force was used.
The final element — and one of the most difficult for officers to grasp — is the element of preclusion, which speaks not so much to the reasonable component of decision making, but more to the necessary component, which is also required in all police use of force. With over twenty years of the profession utilizing force policy and training standards consistent with the Graham v. Connor and Garner v. Tennessee requirements, the term “reasonable” has taken center stage in most police use of force training curriculum.
However, law enforcement officers must not forget that though force must be reasonable it must also be necessary. It cannot be necessarily concluded that if a decision was determined to be reasonable that it must also have therefore been necessary. Recall that officers must calculate their decisions upon the totality of the circumstances that no other viable alternative option, designed to preserve life can be reasonably made in light of the immediacy of the threat.
Preclusion should not be confused with the concept of using “lesser means.” Rather, preclusion is more the idea that under the circumstances, the use of deadly force could not be avoided. It is this element that continues to trouble officers and their agencies. In civil court the burden of proof is significantly less to show that an officer acted recklessly, maliciously or with express intent to cause harm. In a court that is designed to establish degrees of culpability, officers will be asked very candidly if other force options reasonably remained available. A “yes” answer can quickly turn a judgment of “good shoot” in criminal court to a judgment of “bad shoot” in civil court and lead to an extraordinary award for punitive damages.
Don’t Forget the Necessary Clause
Agencies are often forced to defend tort claims of deliberate indifference and failure to train allegations in the aftermath of shootings, especially when the claims are part of a larger wrongful death action. All too often it is preclusion that leaves a gaping hole in the defense.
Where the calculus of an officer’s decision making is to be made upon the “totality of the circumstances,” officers often wrongly assume that the circumstances can only be used to present arguments in their favor. They must know that the opposing counsel will also use the “totality of the circumstances” to their own favor, and rely upon alternative actions to support their position. They will note all of the reasonable options available to the officer as being circumstantial and ask why those options weren’t instead chosen in order to preserve a life. They will remind officers in the presence of juries that deadly force is a final option to be used only when all other reasonable alternatives have been exhausted.
As an example, we continue to see civil awards and settlements by agencies when their officers fire through the windshields of oncoming vehicles in which the driver is merely trying to get away. Though officers may argue that “the vehicle was coming at them,” the logic of preclusion supports the argument that when possible, it is usually better for officers to get out of the roadway and allow a vehicle to pass then to kill the driver by firing at him as he speeds in their direction. Of course every case must be judged on its own merits, but we can be reasonably sure that officers who leap in front of speeding vehicles in order to stop them have not effectively precluded the use of deadly force and have merely created exigencies to justify their own actions.
Though it is true that an officer’s use of force cannot be viewed with the benefit of 20/20 hindsight and must be considered from the perspective of the officer on the scene, the facts and circumstances can — and often do — represent a double-edged sword in a police-involved shooting. The justification for using deadly force must clearly explain the officer’s reasonable belief that his life or the life of another was in imminent danger of death or serious bodily harm at the time the force was used.
Even though the calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation, this does not mean that anything goes and all will be forgiven if an officer unreasonably errs.
Law enforcement officers are afforded a tremendous amount of latitude in their decision-making. So long as they understand and apply the recognized elements of ability, opportunity, intent and preclusion to explain their need to use deadly force in a given situation, they will be able to intelligently support their actions and overwhelmingly prevail against allegations of excessive force.