07/25/2012

Ed FlosiTaking Training to the Next Level
with Ed Flosi

Deadly force: Intent versus indifference

If the suspect stops doing whatever it is that caused the officer to act with deadly force, what difference should it make to the officer if the suspect survives that shooting?

When I wrote my last article I knew it would receive some mixed reviews. I was hoping for some contradictory views to fuel this next article, and it looks like I succeeded in that objective.

It was predicable that some would dismiss this line of thinking as only “semantics.” It really is not. Some commenters claimed that this is nothing but “political correctness.” Those that have actually met me would find this funny. Read on with a critical eye and you will understand why it is neither semantics nor political correctness.

To be clear, I never wrote that an officer cannot kill a suspect as a result of using reasonable and justifiable deadly force. That is the outcome or after-effect of using deadly force, not the specific intent. If the suspect does something that is life-threatening and the officer is forced to respond with deadly force, the suspect may die. That is the reality of using deadly force and the consequences of the suspect’s own actions.

“Not shooting with the intent to kill” is not synonymous with “shooting to wound.”

Shooting to only wound or shooting the weapon out of the suspect’s hands is not feasible in officer involved shootings. I noted several limitations in the first article which preclude any real-world re-enactment of the oft-used Hollywood fiction of police work.

While “shooting to kill” describes a specific and desired outcome of death, “not shooting with the intent to kill” has a position of indifference as to whether the suspect lives or dies. We all understand and accept that deadly force may cause death. If the suspect stops doing whatever it is that caused the officer to act with deadly force, then what difference should it make to the officer if the suspect survives that shooting?

There are some distinct similarities between the two schools of thought (“not intending to kill” versus “shooting to kill”):

1.) Target area does not change: Both shoot center mass, whatever that center mass target is that presents itself.
2.) Decision time does not change: There is no greater hesitation in not shooting with the intent to kill. When the officer understands the legal standards and operates under those standards, why would they need to worry about what the attorneys and judges will think later? The officer that perceives a credible life-threatening suspect and responds with deadly force with indifference as to whether his/her actions will kill the suspect may react faster to the threat. 
3.) There are no differences in operational tactics.

One commenter pleaded to readers to check the statutes — I think that is a great idea. Those who understand the law also understand that the law is comprised of words, and these words can have very specific and different meanings.

First we need to discuss what “deadly force” is.

Deadly force is that type and amount of force that creates a substantial risk of serious bodily injury or death. Within this definition it is clear that death is not the only possible outcome of using deadly force.

Serious bodily injury is defined in California as a serious impairment of physical condition, including — but not limited to — the following:

loss of consciousness
concussion
bone fracture
protracted loss or impairment of function of any bodily member or organ
a wound requiring extensive suturing
serious disfigurement

Now that we understand what deadly force is, we can discuss when an officer may use it. An officer may use deadly force to protect himself or others when there is an objective and reasonable belief he/she is, or another person is, in imminent danger of death or serious bodily injury given the totality of the facts known to the officer at the time of his/her actions. Within this standard it becomes clear that an officer may use deadly force for situations where other than death is imminent.

Check the statutes, killing with intent (premeditated or not) is generally seen as murder. There is a huge difference between murder and homicide. One implies criminal culpability; the other describes a death of a person at the hands of another person.

While there is definitely “justifiable homicide,” there is not “justifiable murder.”

When an officer uses justifiable deadly force and the person dies, it is justifiable homicide.  If an officer declares his/her intent to kill and the suspect does die, is could come back to hurt the officer in subsequent actions.

Many states have statuary authorities for when an officer can use reasonable force. In California we have Penal Code section 835a. It clearly states that officers can use reasonable force (including deadly force) to effect an arrest, prevent escape, or overcome the resistance of a suspect that has committed a public offense. Using any type of force with the “intent to kill” is clearly not included within these listed authorizations.

Some commenters quoted Graham v. Connor and the specific direction of the Court regarding intent and underlying motivations. The directions in Graham are to be used to evaluate the officer’s use of force as it relates to a Fourth Amendment intrusion. It was also rightly pointed out that a judge may order a directed verdict in the officer’s favor even if a jury were to use the intent of the officer. These are only “may” happen statements though.

I guess the questions should be:

1.) Who would want to go through the whole ordeal in the first place, and
2.) Would you want to rely on the fact that the judge “may” fix the jury decision?

One other quick note on Graham, the composition of the SCOTUS has changed dramatically since 1989 and there is no guarantee that the new Court would agree with that guideline ...stare decisis or not.

This Fourth Amendment protection may or may not give the officer any protection in a state criminal case of murder. Nothing in Graham would prevent an overzealous District Attorney charging an officer with a criminal offense to appease the political machine. Even if the officer were to prevail in the long run, would anyone really want to go through that ordeal?

Now let’s address the big question…why was this article on PoliceOne? It was certainly not to create confusion or to cause hesitation. There are several layers of “officer safety.” First and foremost is the physical safety of the officers. When understood, not shooting to kill does nothing to create an officer safety problem. What is does is to help in other areas of officer safety, specifically to protect officers in other ways as described above.

Since there is no real downside to this mindset, and only possible protections to the officer, I cannot imagine why anyone would not embrace this line of thinking. I have trained thousands of officers in this thinking and none have ever had a hesitation issue or other detrimental effect from not having the intent to kill when using deadly force.

This debate is sure to continue, and I encourage it to continue. The reason most of us write is to bring ideas forward. Some ideas will ring true to readers while others may not. Take the time to critically read these thoughts and feel free to respond as a professional law enforcement officer.

About the author

Ed Flosi is a retired police sergeant in San Jose (Calif.). He has been in law enforcement for more than 27 years. Ed has a unique combination of academic background and practical real world experience including patrol, special operations and investigations. Ed was the lead instructor for use-of-force training, as well as defense and arrest tactics for the San Jose Police Department. He has been retained in several cases to provide testimony in cases when an officer was alleged to have used excessive force. He has assisted the California Commission on Peace Officer Standards and Training (POST) in providing expertise on several occasions related to use-of-force training. He has a Master of Science degree from California State University Long Beach and holds an Adult Learning Teaching Credential from the State of California. He teaches in the Administration of Justice Department at West Valley College.  He is currently the Principle Instructor for PROELIA Defense and Arrest Tactics.

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