Pictured above is a looter present in the QuikTrip on W. Florissant before it was burned down. I showed a number of officers this picture and less than half were able to identify the handgun in this man’s waistband before the image was zoomed in. This is the world in which we work.
Understanding an officer related shooting is an issue central to the Darren Wilson / Mike Brown shooting and when I delve into that specific topic soon, discussing use of force and the parts of a justified shooting will save me a lot of time.
Police are governed in how they can respond to threats by what is called the force continuum. Various departments have different levels based upon individual policy, but one thing never changes. Deadly force is always the top rung. However, one need not attempt every rung on the ladder in order to be justified. For example, if someone pulls a gun on me, I don’t have to utilize open hand control and locks, then striking, then taser and OC spray (mace), then my baton, and only after all of those options fail do I finally shoot back at the threat. I can jump to a level that is considered proportionate. Many departments consider a “plus one” response to be proportionate.
Legally, use of force is largely governed by the supreme court case, Graham v. Connor, 490 U.S. 386 (1989). Graham v. Connor established the “reasonable person test” and the concept of “objectively reasonable.” What the reasonable person test essentially means is that in use of force incidents, the court has to ask itself would a reasonable knowing what the officer knew at the time that force was used, conduct themselves in the same way. If the answer is yes, then the use of force is deemed reasonable.
For the purposes of non-vague legalize, this means that a reasonable person is whatever a judge or jury decides a reasonable person is. If I shoot someone in the line of duty and I feel it was reasonable, my department feels it was reasonable, but a jury decides that it was unreasonable, for the sake of this discussion, the action was unreasonable. Obviously, it is for that reason that, in the case of juries, legal instruction by the court is supremely important.
Deadly force is essentially defined as any action intended to cause or likely to cause knowing serious bodily injury or death. If I hydroplane a car and strike a pedestrian waiting at a bus-stop, I will likely be responsible and liable, but I did not use deadly force. If I choke a suspect to death while affecting an arrest, that would constitute deadly force. If I punch a suspect so many times that his brain hemorrhages and he dies, that would constitute deadly force. If I shoot a suspect in the head, that constitutes deadly force. Interestingly, if I shoot a suspect in the leg and try to argue later that I was merely trying to wound him, a gunshot is still considered deadly force regardless of how I intended to use it. As a result, the use of a gun, or rather a bullet, is always deadly force and attempting to disable or wound a suspect is never a part of police training or policy.
With that said, the courts have said that pointing a gun by an officer at someone else does not fall under deadly force. Only once the officer has pulled the trigger does it apply. However, that’s not to say it falls outside of the force continuum. Officers cannot simply point guns at whomever they like without cause but I can draw my weapon without dealing with the justifications inherent in an actual use of force. Interestingly, this is an allowance not given to offenders. I do not have to wait for an offender to shoot at me before I shoot back.
Officer training differs slightly from academy to academy, but a few concepts are universal. When using deadly force, an officer must be in fear of death or serious bodily injury directed from the suspect toward the officer or another person. Officers are also trained not to stop shooting until a threat has been stopped. That can mean death, but it also can mean surrender or incapacitation. It should be noted that the number of shots is not a factor. In fact, while I was going through the academy, I was told, “If for some reason you’re killed by your own weapon it better be because the suspect beat you to death with the frame after you used every bullet at your disposal to stop them.”
My academy also used a video simulator to help understand these situations better. For example, I’m responding to a disturbance and a woman comes off of her porch brandishing a knife. I draw my firearm and tell her to put the knife down. It’s possible that she can listen or it’s possible she might stay where she is and be compliant, albeit with a knife. The instructor has control over a large variety of responses and scenarios.
One interesting scenario in particular involved a domestic disturbance call. When we arrived at the house we were let in by a family member who said something to the effect of, “He’s going to kill her!” The video continues forward into a bedroom where a large male is on top of a female on a bed with his hands locked around her throat. Presumably a husband and wife pair, the man refuses all commands.
Due to the limitations of the software, we’re limited in what we can do. For instance, we can’t rush the flat screen and tackle him. Still, deadly force is still justified in this case and when I was presented with the scenario, I shot the husband. A few pounds of pressure is all that it takes to crush a person’s trachea. Not only do we lack the medical training to open the airway, but there’s not an ambulance around fast enough to get there in time to save her before she asphyxiates if he succeeds in crushing it. In reality, I might have attempted to tase or tackle the husband first, but as I discussed earlier, I didn’t have those options in this simulation.
However, in my opinion, the lack of options is actually a feature more so than a flaw. This goes to demonstrate the complicated nature of a deadly force scenario. Had I been capable of using physical force against the husband, had I been capable of using a taser, I might not have had to use a firearm to save the wife’s life. Interestingly, in the same scenario, it could have been entirely plausible that the man was intoxicated either by drugs or alcohol and did not respond to the taser, or more frighteningly, clamped down on his wife’s neck harder. I could have also been outclassed by the husband physically and been unable to tackle him off of his wife. At this point, I’ve actually wasted time by attempting to run through other force options and now, not only is the wife closer to death but the only option I have left is to use some form of deadly force be it from my firearm or from striking him in the head with my baton.
I wonder if I had been in this scenario in real life if the media would have reported on how I gunned down an unarmed father of two.
Police involved shootings are fortunately relatively well researched. Below I will take a look at what happens in an officer related shooting on average. A number of agencies keep good records on the circumstances regarding their officer related shootings including the NYPD and the FBI. For the FBI data, I will be reviewing data involving officers who were killed and injured in the line of duty.
The NYPD reports that in officer involved shootings in 2012:
Threat posed by a suspect:
- “firearm” or “simulated firearm” (71%)
- “cutting instrument” (16%)
- “blunt instrument” which apparently includes vehicles (9%)
- “unknown” (4%)
I suspect “unknown” is “unarmed” or still under investigation.
Number of shots:
- 1 round was used 31% of the time.
- 2-6 rounds were used 38% of the time.
- 7-11 rounds were used 13% of the time.
- 12-16 rounds were used 13% of the time.
- 17+ rounds were used 4% of the time.
In other words, 1-6 rounds were used 69% of the time. 31% of shootings required 7 or more shots.
Distance of confrontation:
- 0-5 yards (41%)
- 6-16 yards (34%)
- 16-25 yards (11%)
- 26+ yards (14%)
Subjects Struck by Police Gunfire
- Asian/Other (4%)
- White (10%)
- Hispanic (17%)
- Black (69%)
Subjects Firing on Police
- White (5%)
- Hispanic (16%)
- Black (79%)
I guess this means that the Asian/other were responsible for bladed, blunt weapons, or unknown since that demographic is absent from this list.
- Officers using Deadly Force
- Black (12%)
- Hispanic (32%)
- White (53%)
Of 15 unauthorized firearms discharges:
- Suicide 8 (53.3%)
- Discharge by Suspect who gained control of officer firearm 3 (20%)
- Still under investigation 2 (13.3%)
- Attempted Suicide 1 (6.6%)
- Suicide by a civilian with officer’s firearm 1 (6.6%)
Sources (I did not summarize 2011):
FBI stats (LEOKA) Data:
Between 2003 and 2012
Weapon used in incidents where an officer was feloniously killed:
- Firearms, 493 of 535 (92.1%)
- Knife or cutting instrument, 3 of 535 (00.5%)
- Bomb, 2 of 535 (00.37%)
- Blunt Instrument, 1 of 535 (00.19%)
- Personal weapons (hands, fists, and feet), 3 of 535 (00.5%)
- Vehicle, 33 of 535 (6.1%)
Distance for officers killed with firearm:
- 0-5 feet, 234 of 493 (47.5%)
- 6-10 feet, 86 of 493 (17.4%)
- 11-20 feet, 71 of 493 (14.4%)
- 21-50 feet, 32 of 493 (6.5%)
- 50+ feet, 30 of 493 (6.1%)
- Not reported, 40 of 493 (8.1%)
Race of victim officer
- White, 454 of 535 (84.9%)
- Black, 69 of 535 (12.9%)
- Asian/Pacific Islander, 7 of 535 (1.3%)
- American Indian / Alaska Native, 6 of 535 (1.1%)
Gender of victim officer
- Male, 511 of 535 (95.5%)
- Female, 24 of 535 (4.5%)
Race of offender
For the record, 595 offenders were identified in 535 incidents.
- White, 304 of 595 (51.1%)
- Black, 259 of 595 (43.5%)
- Asian / Pacific Islander, 9 of 535 (1.7%)
- American Indian / Alaska Native, 8 of 535 (1.5%)
- Not reported, 15 of 595 (2.5%)
Gender of offender
- Male, 582 of 595 (97.8%)
- Female, 13 of 595 (2.2%)
Injured officer data between 2003 and 2012
Total officers injured, 581,239
26.9% of all officers
- Firearm 21,379 of 581,239 (9.3%)
- Knife or Cutting instrument 10,007 of 581,239 (12.7%)
- Other dangerous weapon 81,549 of 581,239 (23.8%)
- Personal Weapons (Hands, fists, feet) 468,304 (28.5%)