An officer arrives on the scene of an active shooter. As he enters a school building, he sees bloodied victims on the floor and runs toward the gunfire. He clears a corner and sees a man with a rifle firing at children who run down a hallway. The officer raises his patrol rifle and, without a word, shoots the offender.
In another deadly event, an officer arrives at a traffic accident. One of the drivers is armed with a handgun and, unknown to the officer, was on his way to murder his girlfriend. A citizen shouts to the officer that the driver is holding a pistol. The officer shouts to the armed man to step away from his pickup truck and show his hands. The offender steps from the vehicle, and the officer shouts repeatedly for him to drop the gun. The gunman lowers his handgun and then, without warning, snaps his arm up and fires. The bullet creases the officer s head from 60 feet away. A gunfight ensues, and the officer kills the offender.
In one case, no warning is issued, and the threat stopped immediately. In another, there's a warning with a near disastrous result. Are police officers required to always give warning before the use of deadly force? If not, what are the rules?
Consider Your Basic Training
Every police officer is taught from day one that communication skills are key to successful law enforcement. We learn to speak in a manner that commands attention in order to gain compliance, or simply to give and get information.
In all we do, speech is in play and this is very much true in use-of-force incidents. In the vast majority of confrontations, officers are identifying themselves, giving lawful commands and making custodial arrests. Verbal commands are ingrained into the fabric of who we are and what we do.
We prize good communications but must recognize that there will be times that demand action, not talk. In the classes I instruct that focus on police use of deadly force, officers view on-scene film where verbal commands went unheeded by the armed offender. Instead, the gunman fired first and murdered the officer. The use of verbal commands when facing an immediate threat to life yours or others is, at times, a deadly vestige of our training.
Under high stress, correct and proper verbalization can be difficult. What I call peanut butter mouth kicks in, and all that comes out is a confused jumble of words at high volume, followed by profanity. Remember your first foot or auto pursuit? It takes realistic training and correct practice to slow down, and keep a cool head and clear tongue.
Achieve Control & Win
Sgt. Phil Messina (NYPD, ret.) is the founder of Modern Warrior, a highly regarded school that trains officers for the hardcore reality of fights they ll face in their careers. As a regular presenter at the Illinois Tactical Officers Training Association Conference, Messina has proven to us that achieving control and winning against violent offenders is a time-driven process.
Similar in concept to Col. John R. Boyd s OODA (observe, orient, decide and act) loop, Messina dissects the fight sequence in terms of positive and negative time-framing. Negative time works against the officer as he s seeking to catch up to the actions of the offender. A basic truth is that action beats reaction. When the command is drop the gun, it's implicit in the timeframe that the offender is armed and capable of firing. He ll either put the gun down as commanded or use the time allowed by the officer to fire on him. This issue of presumed compliance has been well explained by combatives trainer Tony Blauer, who details the risk we take when issuing verbal commands and then waiting for the response. We surrender the timeframe to the offender and stand at great risk unless we are doing more than simply speaking and waiting.
As we work through the tactics and responses, first we must understand the law. The foundation of warning an offender before the use of deadly force is the 1985 case of Tennessee v. Garner. This landmark decision addressed the use of deadly force against fleeing felony offenders, and the court considered giving warning, but didn t make it mandatory. Specifically: Thus, if the suspect threatens the officer with a weapon or there s probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Feasibility must be based on the considerations of the officer on scene. There's no legal requirement that an officer allow a violent offender to gain a deadly advantage, whereby a verbal warning exposes the officer to greater dangers by allowing the offender to target the officer or others on scene.
Example: An officer arrives on scene at a bank robbery in progress. The offender, armed with a long-barreled revolver pressed to the neck of a teller, attempts to use her as a shield to escape. The kidnapper drags his hostage along an outer wall, not seeing the police officer hidden around the 90 corner who immediately fires on the offender as he breaks the corner line. No words of warning or surrender were issued. Why? In the language of the court, it wasn t feasible. To do so puts the life of the hostage and officer at high risk. The untrained and unknowing may argue that words must come first. They, of course, are the observers and backseat drivers who don t have to live with or suffer the consequences of failure and death.
This isn t television where the good guy always wins. Fail to act at the moment where death or great harm is immediate and all may be lost. As police officers, we re sworn to protect the life and safety of our citizens first and foremost. We must not elevate the safety concerns for the criminal/terrorist offender above those of our citizens and ourselves. This isn't about a fair fight; this is about winning against violent dangerous offenders. Only law enforcement is empowered to do so, and we ll stand or fall based on not only what we can do but most importantly on what we believe is accepted and needed conduct.
What happens when law enforcement officers are faced with the elevated threats of terrorist actions? I review with my officers a video of a homicide bomber in Israel who s wounded by the blast of an accomplice bomber. He's on the ground attempting to press the detonator of his bomb vest when a border patrol commander bravely moves in close with his pistol and shoots him in the head, ending the threat. Words had no place in that moment and scene.
When weapons of mass destruction are threatened or used by terrorists, part of their strategy has been to use negotiation to gain time to either reinforce their stronghold or carry out the attack.
What can be done to better train and prepare our officers for what may be a once-in-a-career event? First, we must make clear that the law is understood. To do so, department trainers must incorporate the book learning issues in an understandable block of instruction. Add to the classroom time the videos of these events so that there s a focus on reality.
Follow the classroom with hands-on training. Produce realistic training scenarios. Demonstrate the use of verbal warnings in situations where it s feasible and where it isn't. I've shot many officers in training who truly believed that because they had a firearm pointed at me, they controlled me. I shot them in the head from close range even though I had my muzzle depressed. They had to experience this to truly understand the action-vs.-reaction cycle.
We must ensure that there s consistency with the law and the department policy. I haven t seen a policy that mandates a verbal warning in all matters of police use of force. Yet, such may exist and, if so, the chief or sheriff needs to be informed and educated on the matter. Officers must understand clearly that there will be a time for talk but also a time for direct action. When shots are fired and life is at risk is not the time for confusion or unreasonable high-risk conduct.
1. Tennessee v. Garner 471 U.S. 1 (1985)
2. 471 U.S. 1, 12