Confronted with this threat, what is the "objectively reasonable" thing to do? (iStockphoto)
FEATURED IN TACTICS AND WEAPONS
It was an unusually busy night shift and the Culver City, California Police Department was doing its best to deliver professional law enforcement services in spite of the heavy workload. In and amongst all of the radio traffic was a rather routine family disturbance call. The location of the call was a sprawling apartment complex consisting of multiple two-story buildings arranged in a pleasing site plan with abundant green belts and wandering walkways. Each of the buildings was exactly like all of the others in terms of exterior appearance and interior floor plans. The units were small, mostly one and two bedrooms with a single bathroom, apartment size kitchen and a living-dining room setup. The entire complex occupied several acres of generally flat terrain, although movement from the perimeter vehicle access road and carports involved a few steps and iron security gates. The grounds were meticulously groomed and well landscaped. The exterior lighting on the "look-alike" buildings and surrounding green belts created an eerie series of bright spots and darkened shadows. Nothing in the environment offered substantial cover or effective concealment. Simply said, there was no really safe way to insert police officers into the complex.
Two young and highly proficient officers answered the disturbance call. En route to the location, they talked about their prior knowledge of the apartment complex and the difficulties soon to face them. They agreed on a plan to make a stealth approach from a rear entrance of the complex and then deploy on foot quietly to search for the correct building and apartment. The two officers moved as a team and maintained a high state of awareness. They listened to the cornucopia of sounds emanating from the various two-story buildings that essentially surrounded them like canyon walls. To the residents, the complex was quite pleasant and safe. To a properly trained police officer, the complex was very uncomfortable.
Following their pre-arrival knowledge of the building numbering system, the two officers soon found the proper address and were keenly aware that it's exposed stairway to the second floor and small exterior deck adjacent the front and only access door represented yet another series of safety issues. Ascending the stairs, the officers took note of the very small but brightly illuminated landing that served two like doors, one of which led to the reported family disturbance. Some voices could be heard from inside the target location.
The first officer knocked on the door while the second officer stood back, relegated to a lower position on the stairs. The door opened and the first officer observed a young woman and a more mature woman inside the small apartment. The first officer entered and the second officer followed. The front door opening was a standard 30-inch wide aperture and represented the only way into or out of the apartment. The front room was perhaps 16 feet deep and 12 feet wide with a hallway on the left. Packed suitcases were stacked against the wall to the right and the furniture arrangement limited the officer's movement.
While talking to the two women, the officers learned that a third, older woman was inside the apartment and out of view. The officers learned that the older woman was the source of the disturbance call and she was reportedly acting out in a bizarre manner. The officers began to consider that the call now possibly involved a disturbed person who remained unseen.
Suddenly, the older woman emerged from a bedroom and dashed into the kitchen where she obtained a very large knife. Just as rapidly, she bolted out of the kitchen with the knife raised in a forward attack directly at the officers. She was no more than 15 feet away and closing, all the while yelling unintelligibly at the officers. The officers drew their firearms and attempted to seek distance while simultaneously trying to verbally calm the knife-wielding woman. The furniture and stacked suitcases prevented any possibly maneuver. The encounter now involved five adults in a critical dynamic, all within a small, cluttered apartment. The first officer stood ahead of the second officer, meaning that the second officer was without an effective field of fire. The first officer issued repeated verbal commands at gunpoint, but the angry knife-wielding woman did not stop her assaultive behavior or focused attack. At the point that the officers could retreat no further and the assailant was within a very few feet, the first officer discharged a controlled volley of handgun fire, dropping the attacker and ultimately causing her death.
How does the objectively reasonable standard apply to the case at hand? This particular officer-involved shooting incident gave rise to a federal lawsuit alleging that the officers used poor tactics, failed to follow proper guidelines concerning mentally disturbed persons, and deployed excessive and unnecessary deadly force rather than alternative means. In this case, the officers were well represented by a law firm that specializes in police litigation. Prior to an actual court trial, the officers' attorney filed a motion for summary judgment with the court asking the court to consider the objectively reasonable standard (Graham vs. Connor) as that standard might apply to the case at hand.
The plaintiff's formal federal civil rights complaint relied on a long-since-retired chief of police from the State of Washington who reviewed the matter as a paid expert witness. The ex-chief essentially opined that the shooting death was unnecessary, unreasonable, excessive, avoidable and so far below professional police standards as to be negligent. After reviewing the ex-chiefs pontification and the defense attorney's motion for summary judgment, the court dismissed the lawsuit against the officers as a matter of law. In this ruling, the court found no dispute of facts that might justify a trial.
How did the federal court apply the objectively reasonable standard to the case at hand? In the first analysis, the court determined that the fact pattern was clear as to WHAT transpired. Then the court determined that the plaintiff's paid expert witness failed to comply with the U.S. Supreme Court's instructions concerning an objectively reasonable analysis. The opinions offered by the ex-chief were exclusively 20/20 hindsight, sometimes called the art of afterthought. The ex-chief pointed out alternative means that could have, should have, or might have been employed. Such an "after-action critique" was invalid because it ignored the reality that the involved officers were forced to make split-second judgments in a situation that was tense, uncertain, and rapidly evolving. It is relatively easy in the comfort of an office to second-guess the acts of others, particularly in police matters since there is no single-best way to handle any particular situation. More importantly, officers faced with an upturned knife do not enjoy the luxury of time or distance that might allow them to seek an independent expert opinion or request a feasibility study by a reputable consulting firm.
Of course, the brilliance of 20/20 hindsight practiced in a safe and secure setting would produce a myriad of alternatives to that which a police officer might perform in a peak stress event such as one in which a crazed and yelling woman charges forward with a BIG KNIFE in a small room.
Coulda, shoulda, woulda
In the case at hand, the ex-chief opined that the two officers could, should or might have been more prudent to simply retreat back through the door that they had just entered. This was a tactically flawed notion that certainly would leave the two reporting parties still inside the apartment with the knife-wielding woman. This incompetent recommendation would obviously expose the backside of the retreating officers to the knife attack and/or a continued attack out on the small landing or stairway. When the ex-chief was apprised that such a foolish maneuver was not possible because of the stacked suitcases blocking the proposed escape, the "expert" offered yet another ridiculous suggestion that the two police officers unlock and open a sliding glass door and sliding screen door and re-position themselves on the small, second floor patio deck without any further means of escape other than jumping off the balcony. If you have any police experience whatsoever, you certainly recognize how foolish and ineffective these proposed retreat tactics appeared. However, the judicial review was far less complicated. The court was keenly interested in what actually occurred and was not distracted by what a paid witness had to offer as speculative alternatives.
The plaintiff's case also relied on the proposed fact that the knife-wielding woman was mentally disturbed, incapable of forming a specific intent to harm anyone and could, should or might have been better managed with a softer, less threatening police response. The ex-chief adopted these factors in support of his position that the shooting was avoidable. Again following the objectively reasonable standard, the court was not distracted by the paid witness' attempt to proffer the state of mind of the knife-wielding woman; nor did the court believe that the responding police officers had any capacity whatsoever to make such a metaphysical determination.
Then there is the well-settled issue of self defense. Every person has an absolute right to self-defense. In the case at hand, the two police officers had not surrendered their individual right to self defense as a consequence of their professional occupation. The rules of self defense are clear:
- One need not be harmed before acting.
- One need not calculate and prioritize a hierarchy of alternatives.
- One need not determine the underlying intent, apparent motivation or potential impairment of the attacker.
- And if you are a law enforcement officer engaged in legitimate police activities, you need not retreat from your duty or endure unreasonable risks to your safety.
What was the woman thinking as she closed on the officers with the knife held out? Her thoughts and intentions became irrelevant to the objectively reasonable analysis. In the case at hand, the court ruled that, from the perspective of a trained and reasonable police officer, the woman's conduct and knife presentation constituted a reasonably perceived life-threatening dynamic and that a like officer in like circumstances would act in a like manner. If the officers had imprudently failed to act in self defense, the outcome of the incident would simply become a matter of fortune.
Given the measurements, confines and obstacles of the small apartment, the effective and disciplined use of deadly force was absolutely necessary, consistent with modern police practices, and legally determined to be objectively reasonable.