There are five recognized and accepted purposes for which a legitimate use of force might be justified. These five well-defined and established purposes are frequently referred to as the Rules of Engagement and are categorized as:
- Self defense:a right common to all persons
- Defense of others:a duty assigned to police personnel
- Effectuate an arrest:a vested authority granted by law
- Prevent an escape:a vested authority granted by law
- Overcome resistance:a vested authority granted by law
On balance, perhaps the most frequently applied and least understood is the fifth rule of engagement. Often, the use of force by professional law enforcement officers is simply calculated toovercome resistance.Such force applications might involve verbal commands, physical control techniques or the use of a weapons system up to and including the use of deadly force. The difficulty with this basic police duty is the wide variety of resistance levels either presented to or perceived by the involved officer. There is no single correct force option or technique that might be applied to or effective in all circumstances. Hence, the involved officer must exercise judgment and discretion. What might be effective in one situation may not be effective in the next. Use-of-force incidents by their very nature are dynamic encounters that require the officer continuously evaluate and reevaluate the changing conditions as they unfold.
To better understand the fluidity of such incidents, tap into your memory of the March 1999, Rodney King incident in Los Angeles. Following a lengthy and high-speed vehicle pursuit, the involved officers fended off the suspect s active resistance with baton strikes, food kicks and taser applications. At some point, the suspect was down and injured and a significant number of police officers and highway patrol officers were on scene. And yet, the baton strikes, taser and foot kicks continued. The final stages of the incident were video recorded, 88 seconds in length, from a distance across the street by an uninvolved civilian witness. That amateur video eventually gained a worldwide most watched status and now serves to support the popular belief in police brutality as an everyday occurrence.
The lesson learned in the Rodney King incident was best presented by the federal judge overseeing the criminal prosecution of the involved officers. The court correctly determined that the force initially deployed during the first 80 seconds of the tape wasobjectively reasonable,but that the continued use of force after that point became unreasonable because the suspect was down, injured and seemingly unable to offer any viable threat to the numerous on scene officers. What was onceobjectively reasonablehad evolved into unconstitutional conduct on the part of the involved police officers. Criminal convictions followed for two of the four officers charged.
Moving forward 10 years, the May 2009 execution-style shooting of a juvenile robbery suspect by a pharmacist in Oklahoma City again demonstrates the fluidity of such incidents. Although the incident didn t involve a professionally trained law enforcement officer, the video recorded incident again illustrates the objectively reasonable standard of care and culpability associated with use of force incidents.
In the well-known Oklahoma City drug store robbery, two male juveniles entered the location armed with handguns and wearing ski masks. They quickly proceeded to threaten the on duty pharmacist at close quarter s gunpoint. The security video offers a chilling example of a life-threatening circumstance that was tense, uncertain, and rapidly evolving. [1] Focused on the goods and money as their objective, the two young robbers failed to notice that the pharmacist retreated deeper into his workstation and retrieved his own handgun. The security video clearly depicts the pharmacist bringing his handgun up on target and initiating a firefight that immediately dropped one of the robbers to the floor with a head wound. The second robber turned and ran in a frenzy of fear. The pharmacist pursued the second robber outside of the drug store and continued to fire until the weapon emptied.
The security video then depicts the pharmacist returning inside the drug store, stepping past the downed robber and returning again deep into his workstation where he obtained a second handgun containing an additional supply of live ammunition. During this rearming phase, the pharmacist faced away from the downed robbery suspect, possibly indicating that the earlier threat level had abated. The pharmacist moved purposefully to a standing position over the downed robber and then fired five more bullets into the torso of the 16-year old robbery suspect, as he lay motionless on the drug store floor. At autopsy, the medical examiner opined that the five final bullets to the chest and abdomen were the fatal wounds that caused the suspect s death.
Both the Rodney King incident and the Oklahoma City robbery incident demonstrate the fluidity of such violent encounters. In both cases, the threat levels fluctuated wildly from serious and life threatening to more subdued, even controlled. Hence, logic and law dictates that the response to the threat must be both proportionate and measured.
When a use of force is competently analyzed, the termproportionatemeans that the force level (orforce option) employed is consistent with the crime and the resistance projected. The termmeasuredsimply means that the force applied doesn t continue beyond that which is reasonable to the circumstance. It s this understanding that gives rise to the well-settled Use of Force Continuum [2]
In both of the examples presented here, the actual field conditions changed in very significant and observable ways, but the use of force continued well after the apparent threats had abated. The use of baton strikes, foot kicks and taser applications were proportionate to the initial non-compliance and active resistance offered by Rodney King. The use of a firearm to repel two armed robbers was proportionate to the immediate life-threatening scenario. At some point, Rodney King was forced down to the ground, was injured and was essentially surrounded by numerous law enforcement officers. And yet, the baton strikes and foot kicks continued, meaning that the use of force was not measured. From a critical standpoint, the force options used in the apprehension of Rodney King were not excessive or too great in the initial contact. But as the situation continued and significant changes in the subject s condition became apparent, the static use-of-force techniques became excessive, unreasonable and unlawful.
Consider the plight of the Oklahoma City pharmacist: His pre-engagement preparation included the strategic placement of not one, but two loaded firearms. Such preparation might suggest intent and forethought, elements necessary to a criminal prosecution. The pharmacist s resolve in the face of the armed robbers and his demonstrated tactical maneuvers were remarkable, but might also infer specific intent. The first shot fired by the pharmacist was clearly a use of deadly force reasonably asserted as an act of self-defense. With one suspect down and another suspect running, the pharmacist gave chase and fired repeatedly at the fleeing suspect. Here again, the underlying right of self-defense would seemingly apply.
To this point in the drug store scenario, the pharmacist appears to have acted reasonably and even lawfully. His use-of-force decisions and applications seem appropriate to the circumstances, particularly in light of the fact that he was not a trained law enforcement officer. Had he only stopped after emptying the first handgun, his actions would not have brought about his exposure to a criminal prosecution and the certainty of a civil lawsuit. But he didn t stop. The pharmacist returned to the store, secured a second loaded firearm and then stood over the downed robbery suspect and fired five additional rounds that proved deadly. Again, the field conditions changed significantly because it was no longer tense, uncertain or rapidly evolving yet the use of deadly force continued.
Learning Point
The Rodney King incident didn t involve force that was too great in terms of the force options selected, but rather presented a protracted force application that went on too long and to the point that it was excessive, unreasonable and unlawful. To make this learning point clear, your authors refer to this particular incident as afailure to de-escalate.This same observation is valid in reviewing the Oklahoma drug store shooting. What was once objectively reasonable evolved into something unreasonable, unnecessary and illegitimate.
Evaluation
What are the standards of care that must be recognized when evaluating a police use of force incident? Some critics of law enforcement apply an outcome-based analysis, meaning that if the ultimate consequence of the incident is undesirable, then the police procedures must be flawed or substandard. This is illogical on many levels and demonstrates a complete failure to separate process from outcome. For example, a highly trained heart surgeon performing a complicated medical procedure at a respected coronary care hospital would not be judged incompetent or evil because some percentage of the patients treated did not survive the surgical procedure or go on to live healthy, happy lives. Your authors use this analogy because it illustrates the reality that heart surgeons practice medicine among a group of patients who are already afflicted with a potentially deadly heart condition. It s completely unrealistic to believe that such a well-meaning physician wouldn t have occasions in which the desirable outcome was not achieved. For a second example, consider commercial air travel. Airplanes represent a valid and viable means of transportation and commerce. Within the totality of air travel, there have been remarkably few accidents resulting in the tragic loss of human life. When such a statistically rare event does occur, the news media and public attention understandably escalates to the point that the everyday successful air travel operations are ignored. When have you ever seen a newspaper headline announcing, airplane flies and lands safely?
How do these analogies relate to police procedure? When a law enforcement agency experiences an officer involved shooting incident, the news media and public attention will understandably follow. The typical headline or broadcast tease will report, cop shoots man. Much like the heart surgeon and the airplane examples, the statistical rarity of the event is lost in the reporting and the public understanding. Have you ever witnessed a press conference in which city officials declare that their police department hasn t experienced a shooting incident in recent years? If a chief or a sheriff called for such a press conference, it s doubtful that it would garner much media response or attention.
Professionally trained law enforcement officers are routinely called into situations that are tense, uncertain, and rapidly evolving.[3] For the most part, these situations are responded to and controlled without the need for significant force applications. In a rare number of incidents, responding police officers are summoned into situations that are already out of control, violently dynamic or seriously threatening. If the applied police procedure proves to be successful, then the incident and the good police work will go unnoticed or simply fade away. If the applied police procedure results in a death or injury, then the incident will take on a disproportionate amount of new media and public attention. Rather than recognize the overwhelming preponderance of successful police operations, the naysayers and critics prefer to focus on the unusual outcome as evidence of flawed practices and/or policies.
The ultimate reality is not every call for police service will have a happy ending; nor will every surgery produce a healthy life or every airplane flight end in a safe landing.
The outcome based analysis method is a predictably inferior and ineffective means of evaluating use of force incidents. Supposing an officer incorrectly fired at a fleeing juvenile who just engaged in a beer run (petty theft) and the bullets completely missed the intended human target, thereby producing no injury or death consequence. Does the absence of injury or death then justify the decision to shoot? We think not. Conversely, the fatal shooting of an armed assailant by a police officer can t be judged on the fact that the suspect did or did not survive.
Learning Point
Using an officer-involved shooting scenario as a reference, one must identify and separate the process from the outcome. To properly evaluate an officer-involved shooting, one must identify and weigh the information then known to the involved officer as it relates to judgment and reasoning. Whether the bullets struck or did not strike the intended target doesn t indicate the reasonableness of the officer s decision to fire.
In the Rodney King incident, some of the injuries were thought to be associated with some of the earlier objectively reasonable force applications, while others were attributed to the continued beating and kicking. In the Oklahoma City drug store shooting, one gunshot wound (GSW) to the suspect s head was associated with the objectively reasonable shot fired in self-defense while the subsequent five gunshot wounds to the torso were attributed to the execution style finale.
The point to be observed here is that it s thereasonablenessthat precedes or corresponds to the force application that will be tested and not simply the outcome that followed. As essential as this point is legally, it remains frequently overlooked by the reporting officers. Given that the use of force is now measured against a Fourth Amendmentreasonablestandard, then it s critical that the police reports and investigative work products accurately and completely reflect the involved officer s observations, conclusions and judgments.
References:
- 1. U.S. Supreme Court (1989), Graham vs. Connor
- 2. Kevin Parsons, PhD (Appleton, Wis.)
- 3. U.S. Supreme Court (1989), Graham vs. Connor