In today's litigation-happy environment, you have to be able to explain be able to explain why you used force. (iStockphoto)
This grid lists the circumstances under which an officer may use force on the left, and the justification on the right.
FEATURED IN TACTICS AND WEAPONS
If you are a police officer in the City of Long Beach (CA), you will get to see it all in a short manner of time. The officers assigned to the first watch maintain a very high level of activity and calls for service even though much of the law-abiding citizenry sleeps safely through the early morning hours.
It was not unusual or surprising when the police dispatcher assigned multiple patrol units to investigate a SHOTS FIRED call in a neighborhood known for gang-on-gang gun violence. The early morning patrol officers knew the area well and recognized the dangers of a less-than tactical approach to such a call. As had been trained and practiced, the patrol units first responded to perimeter positions, thus building a BOX around the affected area. The tactic was controlled, coordinated and disciplined. Four two-officer units took up preliminary positions in the darkened alleys paralleling both sides of the involved narrow street. Two units were to the north of the call and two units were to the south. The alleys were thought to be a safer and more effective deployment than simply driving down the street and being exposed to densely parked cars, three-story apartment buildings and an abundant series of overhead streetlights. As planned and executed, the officers' covert approach was more than prudent.
Coordinating over a tactical radio frequency, each of the four patrol units began to move into the area, two driving in from the north and two driving in from the south. Quietly, the blacked out radio cars closed on the location of the reported SHOTS FIRED. As was expected, one unit came upon four male gang-bangers moving on foot in the alley. The four baggy-clothed males were immediately detained at gunpoint and the second patrol unit was brought up to further contain the subjects. The early morning drama now consisted of two radio cars, four uniformed police officers and four suspects who had yet to be searched for weapons. The other two patrol units held their parallel positions in the alley on the opposite side of the involved narrow street.
The four male detainees were placed between the two radio cars. One police officer was designated to be the contact officer and began to methodically search the suspects while his partner stood guard. The two cover officers assumed positions securing the search operation as well as the immediately surrounding area.
The plot thickens
Then Murphy's Law kicked in. A fifth gang-banger was first heard by the alert officers and then seen walking and stumbling down the alleyway. Thus, a new character was added to the early morning drama. Intentionally or not, the fifth subject continued to approach at a normal walking pace, seemingly unaware of the police presence. To the trained eye of the cover officers, the fifth subject initially appeared intoxicated and rather casual, particularly in the context of the SHOTS FIRED information. Nonetheless, one of the cover officers alerted on the approaching subject and quickly lit him up with a powerful spotlight. The bright spotlight, coupled with a loud verbal command to FREEZE, startled the approaching subject. He stopped, contemplated, and then rotated to his right preparatory to a foot pursuit between the apartment buildings. As he turned, at least two of the police officers observed a large-frame autoloader handgun protruding from the subject's right rear pants pocket. One officer yelled, "GUN!"
The first set of officers increased their control over the four original detainees. The cover officers initiated a foot pursuit of the armed suspect while using their portable radios to alert the other two other patrol units that the suspect was running towards their containment positions. The foot pursuit took a straight course as the armed suspect ran between two large apartment buildings, thus making way from the alley at the rear and towards the street on the front of the large structures. The armed suspect continued running while the two police officers gave chase. The narrow passageway between the apartment buildings forced the officers to pursue in a straight line, one behind the other. The first officer had the best visual perspective. The first officer had the best targeting potential. The first officer continued to shout loud verbal commands to the fleeing gunman. The second officer followed to cover his partner. Both of the pursuing officers had unholstered their service weapons and carried them at the ready as the pursuit continued. The armed suspect ignored the repeated verbal commands to STOP!
The armed suspect ran rather poorly, but looked back occasionally as if tracking the progress of the pursuing officers. This observation further heightened the first officer's concern for safety and the obvious lack of suitable positions of cover. The first officer observed the subject reach back with his right hand and draw the large-framed autoloader handgun from his rear pants pocket and then bring the gun up from waist level to shoulder height while rotating his body clockwise. The first officer understood the suspect's body dynamics to be a precursor to a DEADLY ASSAULT. In response, the first officer fired multiple rounds striking the suspect and causing his death.
Question: As a trained law enforcement officer, would you have deployed DEADLY FORCE in the same circumstances faced by the involved Long Beach officer? Clearly, your training, background, experience and survival instincts answer this question in the affirmative. The point to be observed here is that the involved Long Beach officer acted in a manner consistent with widely taught and accepted police practices. This is the essence of the objectively reasonable standard of care found in the U.S. Supreme Court rulings. And yet, this paramount standard was all but overlooked during the post-shooting investigations and administrative reviews. The criminal investigation conducted by the department and the district attorney found no fault with the conduct of the officers. The administrative review concluded that the use of DEADLY FORCE was "justified" and "within policy."
In this case, we see the typical "two hat" approach to the post-shooting evaluation. The first "hat" is the criminal investigation and the second is the administrative review. While valid and necessary, this two hat approach often fails to address the expected civil liability issues.
The Third Hat
In the Long Beach officer involved shooting, the officers survived the life-threatening encounter with the armed suspect and they successfully endured the criminal investigation and the administrative review. However, the officers and the department then faced a new set of challenges when a plaintiff appeared and brought forth a federal civil rights lawsuit claiming that the officers responded with excessive and unreasonable force. In contemporary times, such civil liability is to be expected and necessarily demands that law enforcement augment the post-shooting protocols to include the third "hat" to adequately address the civil liability exposures.
In the earlier question, you were asked if you would have fired on the armed and threatening suspect as did the Long Beach officer. If your answer was "NO," it might be wise for you to seek other employment. If your answer was "YES," then your training, background and judgment is absolutely consistent with the professional law enforcement community.
Shoot or Don't Shoot
The essence of a federal civil rights excessive and unreasonable force complaint involves the WHY question. In the Long Beach shooting, a tremendous amount of information was expertly discovered and documented to clearly establish WHAT actually occurred. Hence, the fact pattern was well-defined. The critically missing element was WHY the involved officer found it necessary to deploy DEADLY FORCE. Within the professional law enforcement community, the WHY element is self-evident and needs no further explanation. Unfortunately, jury panels are comprised of civilians, not police officers. Try as they may, civilian jurors lack the training, experience or judgment to adequately appreciate the police reasoning during a nighttime foot pursuit of an armed and threatening felon.
So, if you answered "YES" to the question, "Would you have fired?", be prepared for the next question: "WHY would you do that?" Again, it is the WHY question that more directly addresses the objectively reasonable standard. The answer to this question must be based on the so-called "rules of engagement."
Rules of engagement
Without attempting to offer an unqualified legal dissertation, there are FIVE legitimate reasons or purposes that may permit a law enforcement officer to deploy force, up to and including DEADLY FORCE. Understanding these FIVE special circumstances is critical to the officer's survival in the field and in the courtroom. Ignorance or abandonment of these rules of engagement represents an enormous escalation of risk to the safety of the officer and the security of the officer's family.
In practical police terms, the so-called rules of engagement incorporate an advanced evolution of legal authorities, scholarly research, practical field experience, and highly defined constitutional guidelines. Regardless of the agency or jurisdiction, professionally trained law enforcement officers understand that the use of force or deadly force is limited to certain specific police duties. The rules of engagement are well-settled and practical concepts that identify the following five conditions under which the police use of force may be appropriate (see table in photo gallery).