| Use of Force (2107) |
Lesson 4 - Deadly Force (pt1) |
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Learning Objectives 4.1 The student will be able to identify issues that should be addressed in an agency's deadly force policy. 4.2 The student will be able to identify the fleeing felon rule established in common law. 4.3 The student will be able to identify key elements of the most significant court case(s) concerning the use of deadly force. 4.4 The student will be able to identify three psychological reactions that officers often experience following a shooting incident. 4.5 The student will be able to identify the five phases of transition that persons who experience traumatic events typically go through. 4.6 The student will be able to identify various post-shooting services available to officers. 4.7 The student will be able to identify typical procedures that are followed after an officer is involved in a shooting. 4.8 The student will be able to identify typical procedures that are followed in an internal affairs investigation of excessive force. Lesson Four - Deadly Force Defense of Life An officer may use deadly force to protect himself or others when and to the degrees he reasonably believes an immediate threat of death or serious bodily injury exists to himself or others.Review your Texas Penal Code, Chapter 9. "Fleeing Felon" Rule Limited by Tennessee vs. Garner, 105 S. Ct. 1694 (1985). The rule has been modified by the Supreme Court, but not eliminated. This case will be more carefully examined later in the lesson. Risk to Innocent Bystanders An officer should not use deadly force if there is a risk that an innocent person could be killed or injured. While an officer might be justified in the discharge of his weapon, the law requires that he do so with reasonable prudence to avoid injury to others and that he exercise care commensurate with the danger involved. Cases dealing with risk to innocent bystanders:
Shots at or from a Motor Vehicle Shooting at or from a motor vehicle raises these issues:
Warning Shots Most departments have policies against warning shots or shots to summon assistance. Below are some of the reasons not to use warning shots:
Shots to Destroy Animals A. The killing of an animal is justified for:
Back-up or Secondary On-Duty Weapon Many peace officers carry a concealed secondary weapon. The reason for this practice is that officers are concerned about being disarmed during a confrontation. A major criticism of the back-up weapon is that it may be intended or used as a "throw-down" gun in the event that an officer shoots an unarmed suspect. In order to protect officers from such allegations, a strict policy of registering all back-up weapons carried must be followed. The officer should qualify with all weapons carried in an official capacity. Chap. 415, Gov't Code Sect. 415.035 and TCLEOSE Rule 211.104. Another relevant case is: Webster vs. City of Houston, 735 F. 2d 838 (5th Cir.) (en banc), rev'd on other grounds, 739 F. 2d 993 (5th Circuit 1984) (en banc). Off-Duty Weapons Law enforcement agencies vary in their requirements that officers carry firearms while off-duty. Some departments require their officers to carry weapons off-duty, others give the officer the option, and still others prohibit the practice. Be sure and research your department and find out which policy is required. Research shows that off-duty law enforcement officers account for about 20 to 25% of total justifiable homicides. Departments which make it mandatory to carry an off-duty weapon experience a higher percentage of off-duty deaths of both officers and citizens than do departments with an optional off-duty weapon policy. The officer should register and qualify with all weapons carried off-duty pursuant to agency policy. The following are suggestions which could be provided in an agency's deadly force policy:
Fleeing Felon Rule Established In Common Law. The common law rule was that law enforcement officers could use deadly force to arrest for a felony or to prevent the escape of any fleeing felon. A. The officer did not have to be in any danger in order to shoot a fleeing felon. B. It did have a reasonably necessary to prevent the escape, to effect the arrest, or to prevent the eminent occurrence of a felony. C. Arose at a time when almost all felonies were punishable by capital punishment. D. Deadly force could not be used to apprehend a misdemeanant. The majority of law enforcement agencies had already rejected the fleeing felon rule by their policy. Only 7.5% of departments explicitly allowed the fleeing felon rule at the time of the Garner decision, which was modified by Tennessee vs. Garner, 105 S. Ct. 1964 (1985). Elements of the most significant court cases concerning the use of deadly force: Tennessee vs. Garner: Previous charges of excessive force via the U.S. Constitution focused on lack of due process (6th and 14th amendments) and/or cruel and unusual punishment (8th amendment). The Garner case focused on the 4th Amendment constitutional right to be free of unreasonable seizure (i.e. "A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.") The following points represent some unclarity in the Garner case. For example: Language in that case stated that: Deadly force "may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." And, "It is not unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not unconstitutionally unreasonable either to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is 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." Statement 1-a focuses on present dangerousness while statement 1-b seems to focus on the crime that was just committed. Section 9.51(c) Texas Penal Code focuses on the crime committed and/or the risk to the officer or other is the arrest is delayed. The Garner case does not clearly modify Section 9.51. Officers should look to their departments and procedure or rules for guidance. Psychological Reactions of Officers Following a Shooting A. The Shooting A common experience of officers who use deadly force is the viewing of the event in "slow motion." Because of being under physiological stress, the officer's senses are keenly attuned to the event. Some officers have reported seeing the bullet leave their gun and enter the suspect. They see blood come out of the suspect's body and his body bend and slowly fall to the ground and hear the suspect's screams. B. The Flashbacks Sometimes the shooting is relived in dreams and nightmares. Many officers involved in shootings have nightmares that reflect their unexpressed feelings about the violent event. Sometimes conscious recognition of past shooting incidents occurs. For example: When driving by the location of a past shooting, the officer may relive the event. C. The Fear Whenever an officer relives a shooting incident, fear is experienced. Not just fear associated with the violent aspect of the event, but also fear related to being unable to forget the traumatic incident. Some officers begin to fear insanity when they cannot "shake" memories of the shooting. Fear may also revolve around real or imaginary retribution. Most commonly, officers fear having criminal or civil charges filed against them. While officers only have seconds to make decisions, prosecuting and plaintiff's attorneys have months to examine every possible alternative in a situation. Even if completely exonerated from any wrong doing, the officer recognizes that their future involvement in such an incident may result in an attempt to show a "pattern of unjustified violence." Fear may cause an officer to avoid violent confrontation or react too slowly because of the consequences. Five phases of transition that persons who experience traumatic events typically go through:
We wish to recognize the authors of the publications: James H. Shaw, FBI Bulletin, Nov. 1985, and The Washington Policeman, Vol. 11, No. 4, March 1983, and Anne Cohen, Police Magazine, July 1980. JAMES H. SHAW, 7519 Atchison Dr. S.E., Olympia, Washington 98503, is a licensed psychologist who has been employed as a police psychologist with the King County Department of Public Safety, Seattle, Washington, since November 1963. In addition to conducting extensive research in the field of police officer stress, he has specialized in the selection and training of police officers, and is currently a member of the Washington State Board of Law Enforcement Education and Training Standards. Post-Shooting Trauma Effective measures to deal with the delayed stress reaction. By JAMES H. SHAW Whenever a police officer is involved in a stressful situation, certain mental and physiological reactions take place. In very stressful situations such as a shooting where the police officer kills or seriously injures another person, the stress can be so severe that much of the trauma is internalized to avoid the immediate pain. It is this internalization of stress which results in a delayed stress reaction known as a "post-traumatic stress disorder." Prior to discussing this disorder it is necessary to review the elements common to a police shooting. The Situation Shootings generally occur between a suspect and a police officer without warning, and so, without the opportunity for the officer to take alternate action. The victim of the shooting is generally a youthful member of the community; and, therefore, his death or injury evokes community compassion and support. This is especially evident in instances where the person injured or killed is of a minority race. The affected police officer generally is characterized as a person having a "boy scout syndrome." That is, he is in the law enforcement profession because of his desire to be a helper and stabilizing influence in the community. Acts of violence are foreign to his nature, and he generally cares for the well-being of those he serves. Immediately following the shooting, it is typical for the officer to be treated as a homicide suspect and the shooting to be investigated in that manner. The officer is stripped of his weapon and sometimes his authority until the shooting is resolved through review proceedings. It is standard policy in some departments to isolate the officer further by automatically suspending him from duty for up to 10 days. Typically, the officer receives some support from his peers immediately after the shooting, but their remarks are not generally interpreted as supportive and often add to the officer's feeling of guilt concerning the shooting. The stress from the above is sometimes overwhelming as the officer feels betrayed by the department he serves. In addition, he faces administrative and legal proceedings which can well result in his being disciplined, terminated, sued, or even criminally charged. The officer, as he prepares reports concerning the shooting, knows the information contained therein can be used against him. His requests for legal advice during the investigation are frequently seen as attempts to cover up some aspect of the shooting. Both the internal shooting review board and the inquest are stressful. Then inquest however, is especially stressful because the officer is confronted by the victim's family and their legal representative; and often efforts are made to show that the officer was wrong in taking a life. It is not uncommon for the officer to be called names such as murderer, assassin, etc., by the family or legal representative. In addition, medical coverage of inquests is generally comprehensive. Delayed Stress After the initial stress reaction begins subside, the delayed stress reaction taking place. This reaction may surface within a few days or it may continue for years. The symptoms of the post-traumatic stress of the order are:
The officer with the delayed stress reaction is generally an emotionally sensitive person who tends to experience anxiety and guilt from normal situations. He is capable of experiencing genuine emotional feelings and has not experienced past self-destructive, self-defeating, or anti-social behavior. The stress reaction has within it elements of many psychiatric disorders, but it should be kept in mind that the officer is not psychotic. He is simply reacting to a unique syndrome of adjustment to a traumatic and stressful situation. Therapy and Counseling The officer with this reaction generally will respond well to therapy sessions and peer support counseling. However, it is critical that assistance begin immediately and with the consent of the officer. Experience indicates immediate therapy after the shooting to allow full discussion in a non-threatening situation, and counseling with other officers who have experience in the administrative and legal process will go far in assisting the officer. A word of caution concerning therapists in these situations. It is indeed a bitter experience for a department to send an officer to a therapist who does not understand law enforcement responsibilities and after the therapy find the therapist had counseled the officer out of the department or, worse yet, has compounded the officer's existing guilt feelings. Counseling should also be offered to the officer's wife to enable her to better understand the ordeal her husband will face and to allow her to work through her feelings concerning the shooting. The formation of a crisis assistance team to be used in traumatic situations has been helpful in some departments. The team is generally comprised of a legal advisor, mental health professional, and a police officer who has been involved in a prior shooting situation. Ideally, the team gives initial assurance and advice on a strictly confidential basis. Recommendations As the officer may be feeling isolated during mandatory suspension from the department, and/or suspension of arrest authority may cause further feelings of rejection and isolation. It is recommended that any suspension, transfer, or other personnel action be handled on an individual basis. Although the firearm must be taken as part of the investigation, it is recommended that it be immediately replaced. In at least one department, the supervisor of the officer, at the time he impounds the officer's weapon, loans his weapon to the officer until a replacement can be obtained. Legal assistance from outside the department may be advisable. Depending on the nature of the shooting, the department may be taking disciplinary action against the officer. Independent legal advice may substantially reduce stress and preserve the officer's sense of worth to the department. The above information has been taken from actual experience and is presented to police administrators to assist in their recognition of post-shooting trauma and to suggest programs to assist the victim of the post-shooting trauma. The Washington Policeman, Vol. 11, No.4, March, 1983. POST-SHOOTING TRAUMA: A CONSIDERATION IN OFFICER SURVIVAL By JAMES H. SHAW, Ph. D. EDITOR'S NOTE: Dr. Shaw is a renown psychologist, having worked extremely close with law enforcement since 1963. Also considered unusually rare is that he has held a police commission since 1965. Because of his profession and extensive police experience, Dr. Shaw serves numerous roles with the legislature which prove highly beneficial to law enforcement officers.Officer A was responding to a "neighbor problem" on a sunny summer morning. The officer pulled up in front of a well-kept home in a middle-class urban neighborhood. Upon exiting the patrol vehicle, the officer noted a man approaching him with an ax in his hands. He backed the officer around his vehicle in a clockwise manner, striking the vehicle and breaking out the windows. As the officer attempted to talk the man into putting down the ax, he continued to back around the vehicle coming to a stop between the open driver's door and the vehicle body. The man raised the ax, the officer drew his revolver and as the ax began to fall, the officer fired a round which struck the man in the chest, killing him instantly. Officer B and his partner were called to the scene of a burglary in progress. Upon arrival at the scene, Officer B took the front door of the residence while his partner went around to the back door. The partner suddenly called for assistance and Officer B ran around the house and saw the suspect wrest the shotgun from his partner and begin to point it at him. Officer B fired, the bullet striking the suspect in the buttock. The suspect was later convicted of burglary and sentenced to prison. Officer C was assigned to a stake-out. A known felon was identified and flushed out of the building. Officer C drew his revolver as the suspect ran toward him with a revolver in his hand. The suspect stopped approximately ten feet from Officer C and slowly raised the revolver until it was pointed directly at the officer. Officer C was attempting to talk the suspect into lowering the revolver, however, he noticed the suspect's finger tightening on the trigger. Officer C, fearing for his life, fired a round and wounded the suspect. The suspect recovered completely from the shoulder wound, was convicted and is currently serving a sentence at Walla Walla. What are the similarities involved in these three shootings?
What is post-shooting trauma? It is another name for the psychiatric classification of post-traumatic stress disorder and is very common with officers who have been involved in shooting incidents where an officer or another person were seriously injured or killed. The purpose of this article is to discuss the causes, symptoms, treatment and prevention of post-shooting trauma based upon actual experience. The primary factor in this reaction is a traumatic event, the shooting, which is not strongly considered by the officer until after the shooting has taken place. For example, from the recruit academy to the locker room we are exposed to and use such terms as "waste, snuff, smoke, etc." in describing the shooting of a suspect by an officer. It is not unusual to hear joking concerning the possibility of a shooting such as if we were going on a sporting hunting trip. When we considered the possibility of our shooting someone, it was usually in the context of a "John Wayne" shooting which is "by the book." The possibility of becoming actually involved in a shooting was generally considered in the same vein as the consideration of our own untimely death. We realize it is a possibility but not something to dwell on. If you are unlucky enough to be involved in a shooting, it most likely will be a spontaneous action with little or no time to consider other options. Your judgments, made in the space of a few seconds, will be studied in detail be department superiors and if a death occurs or a lawsuit is filed, it will also be studied by jurors who know little of your motivations at the time of the shooting. Your training courses have mentioned that as a result of a shooting you could be disciplined, terminated, charged with a crime or become a defendant in a civil suit. Let's walk through a typical police shooting, if there is such a thing. You are on patrol in an urban area, shortly after midnight, when dispatch advises you of an armed robbery in progress at a near-by all night grocery store. You arrive at the store just as two young males run from the store. As you command them to stop, one suspect turns and points a revolver in your direction. You believe your life to be in danger and fire two rounds, fatally wounding the suspect. As you reach the suspect, he swears at you and states "you have killed me." An ambulance is called and your sergeant arrives on the scene. Your sergeant then takes your revolver leaving you with an empty holster. This act, though not unexpected, leaves you with a strange feeling, you begin to realize the serious consequences of your situation, feel considerable anxiety and perhaps a little nauseous. You are ordered away from the scene and back to the station to write reports and give statements while the scene is being processed. While writing the reports other officers come by and congratulate you for "eradicating the scum bag," however, their supportive comments are not comforting and seem somewhat offensive. After submitting the reports to the sergeant, he advises you of your suspension until the investigation is completed. The sergeant then asks you for your badge and police identification. You then hurry home in hopes of arriving before your wife has heard about the shooting on the morning news. You attempt to sleep but your mind is too active reliving the events of the previous night. Being unable to sleep you turn on the radio and hear the details of the shooting. The morning paper also has an article. Already questions are being asked by the media concerning the necessity for the shooting. You call your department and ask about the progress of the investigation and are advised it is continuing and they will get back to you later. You get the feeling the department may not support you and after realizing the content of your reports and statements the previous night can be used against you, an attorney is consulted. After the media, ACLU and community groups have thoroughly expressed their opinions regarding the shooting, an inquest is held. The inquest is not unlike the familiar court setting except that it is your actions which are on trial and the prosecutor as well as your fellow officers are presenting the case. They are supportive of your actions but you cannot help but wonder about what the jurors are thinking especially after the suspect's family cursed you during your testimony and the suspect's mother screamed you had "murdered" her son. The inquest jury finds you acted in a reasonable manner and that the shooting was justified. You are ordered back to duty and your badge, identification and revolver are restored. The shooting is now considered by the department as history. But it is not history for you. The past weeks have been especially difficult for you and your family. Your sleep has not been sound, with recurring nightmares concerning the incident. The dreams are in slow motion and although the shooting victim mouths the words you hear no sounds. Sometimes a sound sleep is interrupted with the sharp reports of your revolver firing the two rounds. The flashbacks occurring during the day are similar to the dreams and occur at the most inopportune times such as when making love. Life at home has not been pleasant with your worry about the outcome and a feeling of helplessness has put an extra strain on your relationship. For example, your daughter, in tears, tells you her school classmates have taunted her stating that her father was a "killer." Looking forward to returning to work, you have some apprehension and question your actions concerning the "next" time. Will you have a tendency to shoot too soon or will you delay shooting and perhaps be shot yourself? Also, there are some fears about your working that same shift. These thoughts which had not occurred before the shooting now are recurrent and disturbing. A feeling of anger persists. This anger appears to be directed at the department and the system. You notice the development of cynicism and distract of the administration of the department in particular and the "system" in general. The feeling the chief "does not care" is strong. Sleeping continues to be a problem because of the dreams and although the flashbacks do not occur as often, they are still present and often triggered by T. V. scenes or by reading. The family continues to deteriorate. Because of an "emotional insulation" you find yourself becoming more withdrawn and emotionally cold. You also notice you are drinking more and ignoring your old friends and activities. Periods of depression, feelings of guilt, thoughts of suicide and minor conflicts with the administration are now common. Fast driving and taking unnecessary chances or being very cautious which had been your style are now noted. You expect the emotional problems to diminish if you can just hold on for a little longer, however, approximately 18 - 24 months following the shooting, the stress is so great your peers are noticing a serious change in your behavior and are urging you to seek help. The above scenario is typical of the symptoms of officers involved in police shootings. Working with numerous officers involved in these shootings has resulted in a question as to which results in the most severe trauma, the shooting or the administrative handling of the shooting. I have often been asked why some officers are affected whereas other officers experience no problems as the result of a shooting. The statement that a shooting does not affect some officers simply does not stand up in light of experience. Officers who have been involved in shootings and are indicating no problems to the administration have unique profiles on psychological tests. Further, officers involved in shooting over twenty years ago continue to carry symptoms relating to those shootings. There are indications, however, that some officers seem to exhibit more significant symptoms as the result of a shooting incident. These officers are generally characterized as serious, warm, caring individuals who have considerable sensitivity toward the needs and feelings of others. They are also described as loyal, responsible and productive officers. While we are unable to do much to prevent the shooting incidents, there is considerable evidence to show that much of the trauma involved following a shooting can be prevented or at least significantly reduced. The key to this reduction appears to be the development of a department shooting policy directed at protecting the officer and utilized in a timely manner. The policy should include at least the following elements: 1. A procedure to immediately replace the officer's weapon taken at the time of the shooting. Preferably the officer's sergeant should offer the officer his weapon until a replacement is provided. It is important not to allow the holster to remain empty. Automatic suspension and the taking of credentials is also contraindicated. This is a time when the officer most needs the support of the department and the symbolism involved can be very destructive. Paid suspension and/or a transfer may have value, however, they should not be automatic but made with the officer's input. Perhaps the best solution would be to leave the officer in his present assignment should that be his wish. 2. Develop a cadre of officers who themselves have been involved in a shooting to offer support to the officer. A very valuable resource to the wife of the officer are the wives of the officers with prior experience. 3. Because of serious legal consequences which can follow a shooting, it is recommended the department pay for the initial consultation services of an attorney of the officer's choice. An attorney can be very beneficial in relieving the anxiety over possible legal consequences which can occur as a result of a shooting. Officers have indicated the legal officer assigned to the department is generally not acceptable because of a feeling by the officer that the attorney may have divided loyalties. 4. A mandatory interview with a psychologist or psychiatrist immediately following the shooting is recommended. The psychologist or psychiatrist must have experience in dealing with officers involved in shooting incidents. It is not unusual for officers to deny a need for therapy following a shooting, however, the option of therapy should be made available. Both the initial interview and follow-up therapy, if desired, must be absolutely confidential and paid by the department. I strongly recommend the wife of the involved officer also be included in both the initial interview and the therapy, although not necessarily at the same time as the officer. The fee for the wife should also be paid by the department as her concerns are job related. A word of caution regarding the qualifications of the psychotherapist. As indicated above, it is essential they have a knowledge of post-shooting procedure and are supportive of law enforcement as a profession. It is not unusual for an inexperienced therapist to counsel the officer out of law enforcement or worse to compound the existing symptoms. 5. A monitoring by the department for a recurrence of symptoms especially surrounding the anniversary of the shooting is recommended. Reassurance and supportive counseling has been found to be helpful during these times. The above describes factual situations which none of us expects to experience and thankfully most will never experience. Law enforcement officers, as a group, have a good support system which can be very effectively utilized in shooting incidents. The experience of other officers is invaluable to the understanding of trauma facing the officer who was involved in a shooting. For example, in my own experience, after sitting as a member of the firearms review board, my sensitivity of the feelings of the officers was significantly increased when I was directed to appear before the board following my involvement in a shooting incident. In closing, I would like to quote from a letter recently written to me by the wife of a police officer. It was her letter which prompted me to write this article. "I believe my husband is experiencing a delayed stress reaction as he was involved in a shooting incident this past year. I would find it most helpful to receive information on how the wife can help her husband adjust to and accept what happened so that he can overcome the flashbacks and emotional isolation and to help the wife to deal with the emotional withdrawal and overcome feeling isolated. The department does not offer any assistance." February, 1983 |
 © 2006 Shannon White |