Defusing police use of 'bomb robots'
A legal look at a modern deadly force technology
Author's Note: I don't intend to comment on the Dallas Police Department's use of a "bomb robot." Facts are essential to a specific legal analysis and I don't know enough of them. But the use of such a device raises issues we might consider outside the pressures of a critical incident.
Must officers endanger themselves to use deadly force?
We saw it again on July 7 — citizens fleeing danger while police ran toward it. Five officers died and nine were wounded in an ambush attack. It claimed the attention and tributes of a nation.
Every citizen should reflect on how officers across the nation — day in and day out — intend to go into harm's way to keep the rest of us safer. Does the law require them to unnecessarily endanger themselves before they can use deadly force to protect their communities?
Federal law on deadly force
There is no federal statute governing deadly force. It's regulated by state statutes and federal case law. Federal courts have held that deadly force is a seizure that must meet the 4th Amendment's requirement of reasonableness.
In Tennessee v. Garner, the Supreme Court held that deadly force may be used to apprehend a suspect when the officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or others. For example:
- If the suspect threatens the officer with a weapon or
- There’s probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm.
The court added that, where feasible, timely warning should be given before using deadly force.
In Graham v. Connor, the court said the reasonableness of the use of force must be judged from the perspective of a reasonable officer on the scene — in circumstances often tense, uncertain, and rapidly evolving — not with 20/20 hindsight.
Graham v. Connor and subsequent cases set out factors for courts to consider in determining the lawfulness of police force. They include but aren’t limited to:
- Severity of the crime
- Immediacy of the threat
- Where the suspect actively resisting arrest or attempting to escape
- The degree of threat posed relative to responding numbers and strength
- The immediate availability of less-lethal tools
- The suspect’s history of mental illness or impairment from alcohol or drugs.
It must be noted — nothing in the 4th Amendment requires police to exhaust every reasonable force option before resorting to deadly force. To require that in rapidly evolving critical incidents could endanger officers and others.
State statutes on deadly force
Tennessee v. Garner did not disturb state laws regarding police use of deadly force. Officers must know their state's law on deadly force in defense of self, others, or to apprehend a suspect. For an overview, see Police Use of Deadly Force: State Statues 30 Years After Garner.
For example, my home state of Alaska provides any person may use deadly force in defense of themselves or another when they reasonably believe it's necessary to defend against death, serious physical injury, or other specified felonies involving force.
An officer may use deadly force to arrest or terminate the escape or attempted escape of a person the officer reasonably believes:
- Has committed or attempted a felony involving the use of force against a person
- Has escaped or is attempting to escape from custody and possesses a firearm or
- May otherwise endanger life or inflict serious physical injury unless arrested without delay
Where do robot bombs fit?
Some experts have been willing to comment on the bomb robot used in Dallas.
"It’s what we have done with drones in warfare. In warfare, your object is to kill. Law enforcement has a different mission," Rick Nelson, a former counterterrorism official on the National Security Council, told The New York Times.
But Ryan Calo, law professor and expert in legal issues and robotics saw little difference between the bomb robot and having a sniper shoot from a distance.
"No court would find a legal problem here. When someone is an ongoing lethal danger, there isn’t an obligation by officers to put themselves in harm’s way," he said.
Opining on future uses of bomb robots, University of Baltimore Law Professor David Jaros told U.S. News & World Report that "one of the questions that inevitably will arise is the immediacy of the threat. …[T]he question that would have to be asked is what's the danger in waiting a little longer."
But, waiting has its dangers — and critics. The Orlando SWAT team responding to the June 12 massacre at a gay nightclub waited nearly three hours before breaching the club with an armored vehicle — based on indications there were explosives inside and the place was booby trapped. They extracted several people during that time.
The SWAT team’s wait drew criticism from active-shooter expert and retired SWAT officer Chris Grollnek.
"Action beats inaction 100 percent of the time. When we see SWAT teams respond and not making entry [it] creates victims. Period. End of story,” he told Yahoo News.
Robotic weaponry will inevitably increase. In advance of that, more officer training and rules of engagement will be needed — along with continued legal analysis.
There are some who would denounce the use of bomb robots, without regard to the facts or law, simply because they view them as too militaristic. I’m not one of them. I’ve defended the use of armored vehicles deployed consistent with law enforcement’s mission and civilian law.
In any use of force decision, police, citizens and the courts should heed the 6th Circuit’s reasoning in Smith v. Freland.
"Under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure."