A Massillon (Ohio) Police Department (MPD) officer sits after a shootout Aug. 9, 2002, that left two people dead, including the suspect (on the ground at left) and MPD Officer Eric Taylor (not shown). Photo AP/The Repository, Bob Rossiter
FEATURED IN INVESTIGATION
The December issue's investigation column discussed the standards used to determine whether an officer s use of deadly force is justified and who should conduct the investigation. This article follows with an examination of how authorities should conduct such an investigation, with the caveat that each deadly force case is unique and may require different investigative procedures.
The Standard in Deadly Force Cases
Several intertwining standards govern officers use of deadly force. In 1985, the United States Supreme Court ruled in Tennessee v. Garner (471 U.S. 1, 105 S.Ct. 1994), Deadly force may not be used unless it is necessary to prevent the escape of [the felon] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others (emphasis added).
Individual state statutes may be more restrictive than Tennessee v. Garner. For example, Connecticut, CGS Sec., 53a-22, states, Deadly force may not be used to make an arrest or apprehend a fleeing suspect unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officers or others and if, where feasible, he has given warning of his intent to use deadly physical force.
These standards and accompanying definitions are somewhat subjective in that the courts have repeatedly ruled a police officer s use of deadly force is judged by the totality of circumstances in each individual case as viewed through the eyes of the officer(s) at the time of the incident not based on 20/20 hindsight.
The key to judging whether the use of deadly force is justifiable is determining whether the officer s actions were reasonable and prudent given the totality of circumstances in the individual case. Because the variables affecting whether an officer s actions are reasonable and prudent are subjective, the primary purpose of the investigation is to gather factual evidence to support such a determination.
Case Scenario: Officer Evans & the Machete Man
To illustrate how a use-of-deadly-force investigation might be conducted, I developed a case scenario based on a real-life incident as a training tool.
Officer Dan Evans, a four-year veteran of police work, reported to his shift on a sunny morning in July without cloud cover. In uniform and operating a marked police cruiser, Evans patrolled a large, low-income housing project adjacent to a busy interstate highway. Dilapidated row houses lined both sides of the street and many side streets.
At 0946 hrs, Evans received a radio dispatch to respond to 103 Hampton St. on a domestic dispute with injury. A second unit was sent as backup, along with an ambulance. Evans notified the dispatcher he was on Hampton St. when the call came in.
When Evans arrived on scene, he encountered an elderly woman standing on the porch screaming at him in Spanish. Evans exited the cruiser, ran up the steps and followed the woman into the living room, where he observed a headless woman s body on the floor covered in blood and several young children cowering in the corner. Evans witnessed a man holding a machete in his right hand run from the room and exit into the backyard through an open sliding-glass door. In his left hand, the man carried the severed head.
Evans pursued the suspect a short distance to a large wooden fence separating the interstate highway from the houses backyards. The suspect squatted next to the fence holding the machete and severed head.
With his weapon drawn and ordering him to drop the machete, Evans approached the man. The suspect got up and moved rapidly along the fence while Evans repeatedly told him in Spanish to stop. About 25 yards away, a woman and two children played on a swing set. Evans yelled to them to get inside, but they didn t hear him. Carrying the head and the machete, the suspect continued moving forward along the fence toward the women and children, with Evans now back-pedaling in front of him. When the suspect got approximately 10 feet from the children and woman, he veered to the left toward the children.
Evans yelled, Stop, or I ll shoot! When the suspect did not stop, Evans fired his .45-caliber Glock, intending to shoot the suspect in the foot. The bullet entered the suspect s shin, hit bone, traveled up the suspect s leg and lodged in his heart, stopping him instantly.
Backup officers and paramedics arrived shortly after the shooting, but they did not witness any part of it. The suspect was pronounced dead upon arrival at a local hospital.
Who Investigates This Shooting?
Can the police fairly and impartially investigate one of their own? We may believe so, but if the public feels there may be a bias, isn t it prudent to have another agency conduct the investigation? Accordingly, in many areas of the country an outside agency acquires the primary responsibility for the investigation of officer-involved shootings.
The Investigative Process
Regardless who conducts the investigation, the investigative process must answer two primary questions:
1) Was the officer or a third person in imminent risk of death and/or serious physical injury when the officer shot the suspect?
2) If the suspect was to escape, would he pose a significant threat of death or serious physical injury to members of the community?
Where Is the Crime Scene?
In this case, there are two separate but connected crime scenes. The first is inside the home where the dead woman was found. The second, yet connected, crime scene is the entire area traveled by the suspect and officer, including the officer s approach to the scene and the suspect s flight from the scene.
After the backup unit and ambulance, the first person to arrive on scene was a seasoned police sergeant. He quickly assessed the situation, made the proper notifications via cell phone and established an inner and outer perimeter to protect the scene. Once the boundaries of the multiple crime scenes were identified, the sergeant directed patrol personnel to create crime-scene barriers using sawhorses and yellow crime-scene tape, rope and flags to cordon off a large area from the swings to the home where the dead woman was located. The sergeant briefly interviewed Evans and designated another officer to begin keeping a crime-scene log. Department detectives and members of the state police major crime unit arrived shortly thereafter.
It s crucial that one person assume overall command of the crime scene to efficiently allocate resources, smoothly transmit information among investigators and evidence-collection specialists, establish a command post and media station and develop a plan to determine how the crime scene will be processed.
Is a Mincey Warrant Required?
Clearly, a search and seizure warrant is needed under Mincey v. Arizona (1978) to search and process the crime scene inside the home where the woman was killed. But do the police need a search warrant to search for evidence at the second crime scene in the backyards of Hampton St.? Does this curtilage have an expectation of privacy under the Fourth Amendment? Probably not, but when in doubt, get a warrant.
Reconstructing the Crime Scene
For the use-of-deadly-force investigation, the primary crime scene is the area in which the suspect and officer moved. Investigators videotaped and photographed the scene from land and air. They took interviews and written statements from the woman and children at the swings, the elderly woman on the porch who admitted Evans into the home, the children in the home, the two ambulance attendants and backup officers, and Evans. They canvassed the area for witnesses. They transcribed the 911 tape and all radio transmissions related to the incident.
Forensic specialists photographed and videotaped the blood-splatter trail left by the severed head from the house to the fence and along the path the suspect traveled to the location where the officer shot him. They also videotaped, plotted, photographed, fingerprinted and analyzed the machete and severed head. Specialists analyzed the suspect s blood. Forensic toxicology revealed the suspect had a high concentration of methamphetamines in his bloodstream at the time of the shooting.
In short, investigators applied state-of-the-art investigative and forensic investigative tools to all aspects of the case. All of this was done to answer a basic question of law: Was the officer and/or another person at imminent risk of death or serious physical injury when the officer fired?
In this case, investigators approached the answer to this question by asking two others: How far away from the officer was the suspect when the officer fired? How far away from the woman and children on the swings was the suspect when the officer fired?
The investigation placed the suspect s location when shot by the officer within the parameters of scientific certainty. Crime-scene reconstruction indicated the woman and children on the swing set were less than 10 feet from where the suspect was shot. Where was the officer when he shot the suspect? We know where the officer says he was standing when he shot the suspect and where the women and children think the officer was located. Can we provide scientific evidence to support this?
Evans carried a department-issued Glock 21. He fired one round, which the autopsy revealed struck the suspect in the left leg just below the knee at a 45-degree angle. This type of weapon ejects spent cartridges high and to the right of the shooter. The spent cartridge case was located on the grass 8 feet, 11 inches from the location where the suspect was shot.
After videotaping, photographing and collecting the cartridge case, investigators marked the location on the grass where the cartridge case was found. They instructed personnel from the department of public works to carefully dig up and remove the turf in an 8' radius. Public-works personnel and a forensic investigator transferred it to an indoor shooting range.
At the range, investigators rolled out the turf and mounted Evans weapon on a tripod at a 45-degree angle (consistent with the account given by the officer that he had fired at the foot). They fired 100 rounds through the weapon. After each firing, they measured the location of the spent cartridge case. Next they calculated the mean of the 100 cartridge-case ejections. They determined a mean distance of 2 feet, 4 inches.
Investigators used a software program to compile the evidence: the videotape of the shooting scene with a visual re-enactment depicting the movement of the suspect, the officer and the woman and children on the swing set; the location of the suspect s body; and the location of the spent-cartridge casing. They also used the software to create a timeline, inputting information from the recording of communications between the initial caller, the police dispatcher, Evans and the backup officer.
Several key facts build the case for establishing the officer had probable cause to believe the suspect posed a significant threat of death or serious physical injury to himself or others:
- The officer was confronted with a situation in which a man had just used a machete to kill a woman and was fleeing the scene carrying the woman s severed head and the machete.
- The suspect did not obey the officer s commands to drop the weapon. Instead, he began walking in the direction of a woman and two children playing on a swing set. When he was approximately 10 feet from the children and woman, the officer yelled, Stop, or I ll shoot! When the suspect did not stop, the officer fired and stopped the suspect.
- Forensic toxicology revealed the suspect had ingested a large amount of methamphetamines prior to the incident (the officer didn t know this during the incident).
- Crime-scene reconstruction placed the woman and children on the swing set less than 10 feet from where the suspect was shot.
- Crime-scene reconstruction placed the officer between 6 feet, 5 inches and 7 feet, 4 inches away from the suspect when he fired.
After review of the investigative report that contained the above information, the chief state attorney s office found the officer s use of deadly force was legally justified.
In the scenario discussed above, the investigation determined the officer was legally justified in using deadly force, but the officer did make one near-fatal error. It s difficult to argue with the good intentions of an officer who says, I didn t want to kill him, so I tried to shoot him in the foot. No one wants to second-guess a combat situation, but did the officer do what his department had trained him to do? No, he did not.
His intention to merely disable the suspect could have cost his life or that of others. We train officers to shoot at center mass for a reason. This officer was fortunate that it wasn t his day to die and that his response didn t injure or kill an innocent citizen.
The use of deadly force should be the subject of intensive departmental and judicial review. A comprehensive investigation mitigates claims of investigative bias and serves both the department and the public.