Why the firearms requalification process should review use of force
During requalification, cops must be prepared not only for the mechanics and reality of an armed encounter, but also how to properly document and justify use of force
By Lance J. LoRusso, Esq., P1 Contributor
If you’ve been a police officer for more than a few years, the process of requalifying with firearms may have become more of an exercise than a deliberate procedure.
As a firearms instructor for about 25 years, I am always amazed at how easy it is to spot rookies from veterans during the process.
The new LEOs are eager to shoot and typically stare intently at the instructor as he or she covers the course of fire, safety rules and any other information such as policy updates or changes in duty ammunition. Veterans, on the other hand, are often watching intently, but for a different reason. They are looking forward to getting done. (For the record, I still consider myself a rookie in this respect, even after carrying a badge for more than 30 years.)
While it is true that firearms have changed and the number of options has increased, many times I see and hear that the qualification process has not evolved. LEOs report to the range, weapons are sometimes inspected before and after shooting, LEOs shoot a qualification course or two and cover policy with instructors, everyone signs some paperwork, and then they leave for normal duties or have the rest of the day off. Some of this process is driven by budgets, as training and qualification is often seen as an administrative burden, especially if it throws LEOs into overtime pay. Many times, however, the qualification process has not evolved simply because it is driven by the mandates of state standards.
Goals of annual qualification
Why do LEOs qualify with their firearms?
Of course, the satisfaction of state standards is the most common driver of the process. This also pushes the record-keeping and reporting requirements. However, most states have extremely low requirements. In most cases, LEOs far exceed the basic state requirements during requalification.
Proficiency is definitely a valid consideration. Being able to assess that a LEO has the skills necessary to hit an intended target, operate a firearm and clear malfunctions, is an objective standard. In these respects, the types of targets used and the course of fire called is less important than the fact that the basics of marksmanship skills and the manipulation of the firearm are periodically assessed.
But there is an overarching goal often left unmet. This goal is even more important today as LEOs face far more scrutiny than ever following an officer-involved shooting (OIS). During requalification, LEOs must be prepared to face not only the mechanics and reality of an armed encounter, they must receive instruction on how to properly document and justify their use of force.
Statutes, case law and lessons learned
For many LEOs, a review of state laws authorizing the use of force by LEOs and civilians is relegated to the basic law enforcement academy. In my experience, that is the last time it was read and explained. However, those statutes form the basis of the justification for the use of force by a LEO.
Across the United States, you will find some of these statues are quite specific and, while they all contain variations in language, all are based upon the principles of the Fourth Amendment to the United States Constitution. Although I could sum up the thrust of those statutes by stating that generally LEOs can use deadly force to protect themselves and others, and to prevent forcible felonies, that will not carry the day in the LEO’s statement to internal affairs and homicide investigators. LEOs must use the language of those statutes to explain their actions.
Trainers also typically overlook the state justification statute. The law defines a “justification” as a reason why the conduct involved does not constitute a crime. The import of these statutes is that the LEO’s appropriate use of force is excused at law because a crime was not committed. However, LEOs must be reminded that the articulation of that defense must often come from them, and their perceptions and reasonable beliefs are critical.
Case law demonstrates how your appellate courts and federal courts in your circuit interpret the statutes discussed above. As such, have your department’s legal advisor, prosecutor, or local Fraternal Order of Police counsel help you select the appropriate statutes to review. Keep in mind that precedent from the United States Supreme Court applies everywhere.
United States Supreme Court cases such as Garrity v. New Jersey, Graham v. Connor, Tennessee v. Garner, City and County of San Francisco v. Sheehan, Scott v. Harris, White v. Pauly, and Plumhoff v. Rickard should be distributed with a summary and ideally a discussion to follow. While there are certainly more cases to review, these are some of the most critical at this time.
Case law from the United States Supreme Court provides the standards that must be articulated following an OIS. Contrary to what the public, and several very anti-law enforcement groups think, a LEO must articulate more than just a fear of being injured or killed to justify the use of deadly force.
Incorporate realistic courses of fire
Firearm instructors should have access to the case files of every OIS from their department and surrounding jurisdictions. I’ve taught over 6,000 LEOs from around the United States and eight countries in the past three years. You would be stunned by the reasons given for why firearm instructors do not have this information. Some departments consider these files confidential or restrict their access to command staff on a need-to-know basis. This is silly, especially after the LEO has been cleared by prosecutors.
Both the administrative and criminal investigations are filled with valuable information such as:
- Distances of encounters;
- Use of available cover;
- Suspect actions before and after shots are fired;
- LEO actions under extreme stress.
This information should be used to update and develop courses of fire and other drills to be used during requalification. I also believe that firearm instructors should respond to the scene of every OIS. They should be allowed to see the actual scenes, the lighting, the available cover and other factors that can be used to make the department’s training program as realistic as possible.
Whether the LEO is fresh out of the academy or nearing retirement, each faces a risk that within 24 hours, they could be forced to use deadly force. It is easy to get complacent with the mechanical exercise of requalification. However, every LEO relies upon their training staff to equip them with the skills and knowledge required to not only survive the deadly encounter, but to also justify their actions and preserve their career and their freedom. You can expect that every OIS will place the LEO and the department under a tremendous level of scrutiny. If you add the political motivations of a prosecutor and others, a police officer’s very life may be at risk.
Take some time to honestly evaluate your requalification program from the 10,000-foot view
- Do you have input from LEOs at every level of training and experience?
- Are you maximizing the time you have with your LEOs to improve their chances of survival during and after an OIS?
- Do you adapt your training and allow for time to discuss recent threats, deadly force encounters, and prosecutions of LEOs?
While many LEOs study and practice their firearm skills on their own, most are too busy living their lives and working extra jobs. Department trainers and administrators are their only source of knowledge for this information. They put their lives and their futures in your hands. Be worthy of their trust. Stay safe.
About the author
Lance LoRusso is a litigator with a law enforcement background. Lance focuses his practice on cases involving LEOs, responds to critical incidents and shootings, and handles catastrophic personal injury and wrongful death cases on behalf of injured LEOs, their families and friends. Lance serves as General Counsel to the Georgia Fraternal Order of Police. He is a trainer at heart and speaks to law enforcement groups around the United States and internationally. He has been a firearms instructor for over 25 years and was a member of the Georgia Governor’s Twenty, the top 20 police marksmen in Georgia, for six years. He is the author of “When Cops Kill: the aftermath of a critical incident,” “Peacemaking” and “Blue News.” All profits from the books benefit law enforcement charities. The books are available on lancelorussobooks.com and Amazon. For more information, visit http://www.lorussolawfirm.net.