5 reasons why PERF and IACP's policy on shooting at moving cars is misguided
When police departments adopt more restrictive policy than the law, it may increase their liability
On the evening of July 14, 2016, a crowd of approximately 30,000 people gathered along the waterfront of Nice, France to enjoy the fireworks display in celebration of Bastille Day. The driver of a large cargo truck, driving at speeds in excess of 50 mph, began purposely striking and killing pedestrians. After two private citizens attempted to stop the driver and police officers fired their handguns into the vehicle, the truck finally came to a stop. Two police officers were then able to shoot and kill the driver, but not before he had killed 86 people and injured 434.
If a similar incident should happen today in the U.S., the police officers would be countering a recommended guideline suggestion by PERF and IACP, a guideline that has been adopted into policy by a number of departments nationwide. Per PERF, shooting at vehicles must be strictly prohibited. Many departments have adopted policies that indicate that firearms shall not be discharged at a moving vehicle unless deadly force is being used against the police officer or another person by means other than the moving vehicle.
There are (at least) five reasons this recommendation is short-sighted, misguided and just plain wrong.
1. It’s contrary to the law.
In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court ruled, “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” The Supreme Court has been consistent in the judgment that it is acceptable for officers to use deadly force to stop a vehicle posing a deadly threat. See also Plumhoff v. Rickard and Mullenix v. Luna.
So why would administrators purposely write policy that conflicts with the law? Some believe that by creating policy that is more restrictive than the law, they create a cushion of allowable behavior and thereby reduce their liability. However, my experience has indicated the opposite to be true. When departments adopt more restrictive policy, it actually increases their liability. Now plaintiff’s attorneys can point to a policy violation as evidence of wrongdoing even though there was no violation of law.
2. It is based on an imaginary, one-dimensional situation rather than events that are tense, uncertain and rapidly evolving.
I believe when this recommended guideline was suggested, the imagined scenario was one where the fleeing suspect is driving in a straight line down a road in an attempt to escape. In this proposed scenario, all the officer has to do is ensure he or she is not in the path of the fleeing vehicle and all is good.
But what happens when the situation is similar to the one that occurred in Nice, France or the more recent attack in Phoenix in which a motorist intentionally struck three officers standing in front of a convenience store? What happens if the officer tries to move out of the path of the vehicle but there is no cover available? What if the officer has no avenues of escape? What if the driver is not driving in a straight line to flee, but is driving erratically making it impossible to know which direction to move to avoid getting hit? Or worse, what if the driver is not trying to escape, but instead is using the vehicle as a weapon and is targeting the officer? In these situations, the only viable, life-saving option for the officer may be to shoot the driver.
3. It is unrealistic.
The recommended guideline counters law enforcement training to stop a threat in a dynamic, stressful or life-threatening scenario. Officers are trained to quickly assess each situation and make split-second decisions on how to respond. The guideline is seeking to eliminate an officer’s discretion and decision-making. It is unrealistic and unsafe to propose this guideline as a solution. This is a training and awareness issue.
4. It confuses a training need with a policy need.
It is poor leadership to address every problem with new policy. Address the underlying problem with quality training. Have there been instances of bad shootings by police officers into vehicles? Of course. But these bad events were not the result of inadequate policy; they were typically a result of a lack of training. Bad tactics, such as stepping into the path of a moving vehicle, can lead to bad shootings. Train officers to move and seek cover. Make sure officers understand the legal, tactical and ballistic issues of shooting at and into vehicles. Also understand an officer may not always be able to move out of the way.
5. It unnecessarily limits officers’ life-saving options.
According to the Officer Down Memorial Page, there were eight officer deaths in 2015 caused by vehicular assaults, or suspects using their vehicles as a weapon. These eight officers were in addition to the large number of officers killed by vehicles in accidents, pursuits and being unintentionally struck by a driver. Vehicles pose a grave threat to officers, and they are keenly aware of this threat.
Officers are sometimes placed in life or death situations. During these incredibly stressful encounters, we should not be limiting their life-saving options. If officers do something that is a violation of law, punish them to the full extent of the law, but don't put them in a situation in which they have to choose between a policy violation and saving a life.
The purported reasoning behind the PERF recommended policy is as follows:
- Shooting at a vehicle is unlikely to disable a vehicle.
- If the driver or vehicle is disabled, then the vehicle may careen out of control and present a danger to others.
As to item one above, this is true. Research has clearly indicated that ammunition typically carried by police officers is ineffective in disabling a vehicle. However, shooting at a driver can be extremely effective in stopping a deadly threat. As to item two, it is possible a vehicle may careen out of control, but it is much safer to have a vehicle colliding with an object and coming to a stop rather than a vehicle driven by a driver who is intentionally or recklessly using that car in a manner that is a deadly threat to officers and others. I’m certain the first officers to fire into the cargo truck in Nice, France were aware that the vehicle driven by a terrorist was a greater threat than if the vehicle no longer had a driver. Each situation is unique and must be evaluated on its merits.
I’m sure there are other reasons this guideline should not be adopted. Please feel to include those in the below comments section.