The use of deadly force by the police remains a national issue. The deadly force issue has found its way to the U.S. Supreme Court, and Court decisions have altered related laws across the nation. Ironically, criminal law itself could not resolve the emerging issues and problems revolving around the “fleeing felon statutes” in various state jurisdictions. Eventually, citizens sought civil damages under 42 U.S.C. 1983 and other landmark decisions that restructured criminal statutes, the police use of deadly force, and law enforcement protocols.
The following scenario was part of a larger pattern and problem unfolding across America prior to the 1983 Supreme Court case. An officer in one car calls, “Send some backup, a possible burglary in progress.” Another officer following closely behind responds to the announcement, “Car 239 responding as backup.” An unarmed suspect attempts to flee the scene by running away from the rear exit of the building. The first arriving officer warns the offender, “Halt, or I will shoot”; the burglar continues to run at an even faster pace. The officer fires his revolver and kills the fleeing suspect.
This kind of shooting occurred within the legal guidance across the United States. This was a legal shooting under the state “Fleeing Felon Statute.” Eventually, the U.S. Supreme Court decisions modified the legalities of the use of deadly force and formulated new policies concerning constitutional standards. As a result, the justification and application of deadly force by law enforcement officers revolves around two basic components: (1) dangerousness and (2) necessity.
Supreme Court Intervention: Deadly Force
It would take years for the U.S. Supreme Court to address this kind of deadly force. It took the legal controversy surrounding the fatal police shooting of an unarmed teenage boy to precipitate the Court’s consideration. A Tennessee police officer responded to the scene of a residential burglary and intercepted the juvenile who was fleeing from an unoccupied house at the time of the crime. The officer ordered the suspect to stop, then fired his weapon and killed the juvenile as he attempted to escape.
In this landmark 1985 case, Tennessee v. Garner (105 S. Ct. 1694), the U.S. Supreme Court reviewed the following facts of the case: While Garner (the fleeing juvenile) was crouched at the base of the fence, the officer called out “Police! Halt!” and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence, he would elude capture, the officer shot him. The responding ambulance crew quickly transported Garner to a local hospital, where he died on the operating table.
The Supreme Court ruled that laws authorizing the police use of deadly force against unarmed and nonviolent felony suspects violated the Fourth Amendment’s guarantees against unreasonable seizure. The U.S. Supreme Court cited as unconstitutional the use of deadly force laws of numerous states. The thirty-one states and law enforcement agencies followed the legal guidance provided by the U.S. Supreme Court. Police departmental policies authorizing deadly force to apprehend nonviolent fleeing felony suspects changed significantly.
Before the Tennessee case, state law guided the use of deadly force by law enforcement officers. The Tennessee statute required police officers to warn a fleeing felon that they would shoot if they continued their flight. The officer could then use all necessary means to make an arrest. The main weakness of these state statutes centered on the fleeing felon sections. Many statutes stemmed from the old common law rule concerning fleeing felons. The law was antiquated and failed to meet contemporary standards.
Many law enforcement agencies developed guidelines that stated that “deadly force” may not be used unless (1) necessary to prevent escape and the officer has probable cause to believe that the fleeing felon poses significant threat of death or serious physical injury to officers or others, and, (2) if practical and feasible, a warning should precede using deadly force. However, firing verbal warning shots is a controversial practice and can lead to unintended consequences. Many law enforcement agencies are concerned about injuries that may result from stray bullets.
Law enforcement agencies responded to these concerns by implementing new policies and protocols to address the use of deadly force. As a consequence, the use of deadly force was restricted to instances in which the offender had (1) the ability and capacity to kill the officer or another, (2) the ability and capacity to cause great bodily harm, and (3) the opportunity to cause great bodily harm to the officer or another. Additionally, the threat must be imminent, and the preclusion factor requires the exhaustion of other avenues of action. Deadly force against violent fleeing felons who do not meet these requirements are not within the protection of the law, and the emphasis is on using the least amount of force necessary to stop the aggressor’s violence.
Supreme Court Intervention: Nondeadly Force
Officers must be able to distinguish between nondeadly and deadly force. In police street confrontations this is no easy task, especially when dealing with intense emotional situations. Generally, nondeadly force requires nondeadly strategies; for example, when a citizen engages in passive resistance during a demonstration, generally two officers simply restrain and handcuff the individual and place him or her in the police van to be transported to jail.
Active resistance requires the appropriate level of force for the situation; for example, if a suspect tears the badge off the officer’s uniform, the officer may respond with a nondeadly physical response that requires restraining techniques. If the resistance continues to escalate, the officer’s response may include the use of mace, a nightstick, or other nondeadly strategies. However, after the subject is subdued, a nondeadly or deadly force response would not be appropriate. Once resistance ceases and the subject is handcuffed, the use of additional force would be illegal.
A scenario involving nondeadly force may escalate to deadly force under certain circumstances; for example, an offender may attempt to seize the arresting officer’s weapon during a struggle. What appears to be a nonviolent situation can quickly turn into a deadly force incident. Consider, for example, the following scenario: An off-duty officer responds to a scene of disorderly conduct, identifies himself as a police officer, and attempts to detain one of the suspects. The officer enters into a physical struggle with the suspect, now the arrestee, who soon overpowers and begins to strangle the officer. The officer starts to lose consciousness and fears that he may lose his weapon and die in the struggle. In the twilight of semiconscious, the officer reaches for his revolver, shoots the resisting subject, who falls over and dies.
As noted above, deadly force is appropriate if the officer has probable cause to believe that the suspect poses significant threat of death or serious physical injury to officers or others. In addition, the severity of the crime, uncertain conditions or rapidly evolving circumstances, and a suspect actively resisting arrest may enter into the ”objective reasonableness” standard. In other words, the Court views the situation from the officer’s perspective, evaluating the objective reasonableness of the officer’s response to the unfolding events.
Directly related to the police deadly force issue is nondeadly force, occasionally interconnected and evolving from the same scenario. In 1989, the issue of non-deadly force emerged in Graham v. Connor, 490 U.S. 386. The U.S. Supreme Court established the standard of ”objective reasonableness” where the use of deadly force applied by an officer could be evaluated by the ”reasonableness at the moment.” The Court ruled that the evaluation of the decision to use force should be judged from the perspective of a reasonable officer on the scene, not with the benefit of retrospective analysis.
The following example from the case illustrates the objective reasonableness standard. The police officer focused on what he believed to be suspicious behavior.
The officer conducted an investigative stop of the vehicle operated by Graham’s friend. During the stop, a physical altercation developed between the officer and Graham. The officer checked with the employees of a store where Graham had been prior to the stop, discovered that there was no criminal activity, and released Graham. However, during the investigative stop, Graham sustained injuries and filed suit, 42 U.S.C. 1983. Graham’s argument alleged that excessive force was applied maliciously and sadistically to cause harm. The U.S. Supreme Court applied the Johnson v. Glick test, 481 F.2nd 1028 to his case evidence and did not find that the force applied was constitutionally excessive. The objective reasonableness test justified the officer’s vehicle stop and the questioning of its occupants.
Event Phase: Deadly Force
While the media and public focus on victims of police shootings, comparatively less concern is shown for police victims of deadly force. The exception was the televised Los Angles bank robbery shootout in which suspects fired high-powered automatic weapons and wore bulletproof vests. While most shootings of police officers are not as dramatic or highly publicized as this event, approximately fifty officers lose their lives in deadly force confrontations every year.
The public becomes outraged when a citizen encounters physical abuse from a police officer. The officer is in a position of trust and the criticism is justified and fair. However, a considerable amount of non-deadly force is directed at police officers, though the same level of outrage is rarely forthcoming.
Wearing a police uniform and making arrests increase an officer’s risk for becoming a victim. Officers may become complacent (less vigilant) and expose their weapon. Criminals may seize an officer’s weapon, without warning, and escape by shooting the officer or threatening to use violence. Unfortunately, such incidents often turn deadly for the officer. Appropriate training and recognizing identifiable behaviors enhance survival skills and help officers anticipate unfortunate dangerous field experiences.
Postevent Phase: Deadly Force
Even if an officer survives a deadly assault and prevails over an attacker, there often remains a price to be paid after the shooting incident. The emotional response of an officer who uses deadly force may secondarily impact the officer psychologically. Posttraumatic stress disorder (PTSD) may follow the event phase, and the emotional aftermath may create problems for the officer, the officer’s family, and the law enforcement agency.
The officer may experience a heightened sense of danger, vulnerability, fear, and anxiety about future encounters. PTSD has been linked to combat and violent personal assault. Aftereffects of such traumatic events can be experienced in various ways. Most often, the officer suffering from PTSD has recurring and intrusive recollections of the shooting event.
An officer who has been at either end of a shooting may develop a pattern of employment problems that did not exist before the incident, exhibit signs of the trauma and noticeable behaviors that require professional intervention, and experience nightmares, flashbacks, and disruptive sleep patterns.
PTSD requires early proactive intervention to avoid additional violence and post-trauma-related problems. Officers need appropriate information and referral services. Psychological defenses may develop in post-shooting incidents. Counseling and the retraining of these officers may assist in the adjustment process.
Research: Use of Force
Gathering and analyzing use-of-force statistics and related data in the United States remains problematic; however, the methodology has been improving in recent years. Additional research would prove helpful in identifying how often use-of-force incidents, as well as possible legal or policy transgressions, occur. According to the National Institute of Justice (NIJ) and the Bureau of Justice Statistics (BJS) in Use-of-Force by Police: Overview National and Local Data, research is critically needed to determine the reliability and validity of use-of-force data. The weakness of the current data is that police agencies often self-report. The main argument against police self-reporting is that filtering and bias may cause underreporting. According to NIJ and BJS (1999), 2.1% of the 7,512 arrests studied involved the use of weapons by the police.
The research moderately supports that the use of force occurs more frequently when police officers encounter suspects who are under the influence of alcohol or drugs or individuals with mental health problems. Generally, the police use of force results while officers are attempting to make arrests and the suspects resist. The moment of arrest continues to be a hazardous time for citizens and officers. According to NIJ, BJS, and Kenneth Adams, the use of force appears to be unrelated to an officer’s age, gender, and ethnicity. However, other studies indicate that female officers tend to use less force.
The research on the type of officer who might be prone to use excessive force is beginning to focus on the problem officer and early warning signs. According to an NIJ 2001 research report, a small percentage of police officers constitute high-risk employees. Early warning signs might identify future police officers with problematic behaviors. According to police administrators, this population constitutes less than 10% of the officer corps, yet the group causes 90% of the problems. According to the research, these police officers are easily identified by supervisors, citizens, and peers as being conflict oriented.
Problematic police officers have a high grievance reporting level and discipline-oriented behaviors. The application of early warning systems assists law enforcement agencies in identification, monitoring, and intervention strategies. Some of the performance indicators of problematic behaviors include citizen complaints, use-of-force complaints, resisting arrest incidents, high-speed pursuits, and firearms discharge reports. In addition, civil litigation and civil rights violations are other strong indicators.
The predictive ability of the present warning tools has problems with reliability and validity. The danger is that contrary to what the data indicate, individual officers may be correct concerning their behaviors, especially if the officers are working in high-profile crime areas, with high-risk working conditions, or in socioeconomi-cally and culturally deprived neighborhoods. Moreover, the leadership in the agency may create a climate that produces hostile and aggressive behaviors.
A hostile work environment is not conducive to promoting an ethical climate and effective social bonds between officers and the communities they serve. The individual is part of a larger police culture; the starting point is with the organizational climate and its leadership. However, mentoring, counseling, and timely interventions can provide some of the solutions.
Mastery of diverse use-of-force situations is the result of excellent training. Excellent training increases an officer’s level of performance and confidence. Officers who control their emotions and practice critical tasks have a high probability of success. Moreover, they will increase the probability of survival in deadly confrontations. Realistic deadly force training saves lives, citizens, and officers.
The department’s use-of-force training philosophy provides the foundation for positive outcomes. The value of human life is of extreme importance in our society. Therefore, life is to be respected and protected by the police and serves as the foundation of law enforcement service. The philosophy of minimum force emphasizes the safety of citizens. Officer training serves as the basis for effective action. Teaching effective and ethical decision making improves clarity of thought concerning the use of force.
The Federal Law Enforcement Training Center (FLETC) has developed a use-of-force model. The FLECT use-of-force continuum describes a variety of circumstances relating to the ethical application of the use of nondeadly and deadly force. The FLECT learning-organizing center serves as a frame of reference, emphasis, and focal point for conceptualizing the application of force and describes the various levels of force applied to basic scenarios.
Police learning occurs most efficiently and effectively when the officer has the opportunity to engage in active learning behaviors. The learning simulation or practical scenario is the best format. The ultimate test for judging a learning experience demands evidence that the learning opportunity or instructional invention is actually creating the desired responses. All learning experiences should evoke desired change in the learner. If a given learning experience does not create the expected or desired outcomes, then the experience is considered invalid.
The FBI Hogan’s Alley deadly force shooting range is an excellent example of simulated shooting scenarios. This active learning simulation approximates field situations. This shooting range applies tactical training and is located at the FBI Training Academy. The simulated scenario includes the actors, such as terrorist bank robbers and drug dealers, and innocent bystanders in realistic town locations. Simulated gunfights add to the realism and lessons learned. In short, most officers learn best by doing, not by listening to long lectures that do not meet diverse learning needs.
Law enforcement agencies must train and execute well thought out training plans to achieve mission effectiveness. The element of surprise in certain situations will favor the offender. An officer may face superior firepower or encounter multiple criminals. For these officers, even excellent training may not help them survive. There will be inevitable causalities in the war against crime. However, excellent and realistic training may save many lives.
In summary, a significant part of the solution remains the psychology of violence and performance under stress. Training police officers to perform in stressful situations is a difficult task. Law enforcement officers must perform efficiently in situations that are a matter of life and death.
What does it take to survive a deadly confrontation or avoid civilian casualties? An officer must have the discipline and ability to stay focused in the moment and must anticipate the emotional response of citizens. Finally, excellent training is important, but the quality of the person behind the badge remains the deciding factor when faced with deadly force scenarios.