Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police
A successful civil rights case brought under 42 USC § 1983 requires the plaintiff to show a violation of their constitutional rights or a right guaranteed under federal law. Simply showing that an officer violated department policy is insufficient.
So, you might ask, “Why can’t we make our police use of force policies more restrictive than what’s required by law?
A case in New York is a good illustration of the risks departments face when they author overly restrictive policy language. Although this case involved New York’s “professional judgment” rule—which can immunize municipalities from liability in state tort law negligence cases—the overall principles may still have relevance in your state.
Johnson v. City of New York
In the New York Court of Appeals case Johnson v. City of New York (15 N.Y.3d 676 (2010)), officers responded to a complaint of an armed robbery. When officers ordered the suspect to drop his weapon, he started firing at them. Three officers returned fire at the suspect, who was eventually hit and fell to the ground. In subsequent pretrial testimony, none of the officers reported observing any pedestrians or bystanders on the street. The plaintiff, Tammy Johnson, was struck in the elbow by a bullet while lying on the ground with her daughter behind an SUV. She brought a negligence action claiming, in part, that the officers violated department guidelines and so negligently discharged their firearms.
The relevant section of the department policy was No. 203-12, “Deadly Physical Force,” which states in part:
a. Police officers shall not use deadly physical force against another person unless they have probable cause to believe that they must protect themselves or another person present from imminent death or serious physical injury.
b. Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons. (emphasis added)
The plaintiff claimed the officers violated policy subsection b. The city moved for summary judgement on grounds that the officers “exercised their professional judgment” and overall acted reasonably since they were under fire. The N.Y. Supreme Court denied that motion.
The professional judgment rule effectively insulates a municipality from liability for the actions of an employee “‘where the conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions” (Kenavan v. City of New York, 70 N.Y.2d 558, 569 (1987)). This rule, however, does not extend to those situations where the municipal employees violate their own internal rules and exercise no judgment or discretion (Haddock v. City of New York, 75 N.Y.2d 478, 485 (1990)).
In the Johnson case, the city was ultimately granted immunity under the professional judgment rule, but not before a series of close decisions underscoring the importance of precision in police use of force policy language. Here’s a quick breakdown:
• The Appellate Division dismissed the complaint, holding in a 3-2 decision that the plaintiff failed to demonstrate that the officers violated the guidelines. Without proof there were pedestrians in view, the three-judge majority stated, there were no questions of fact in dispute.
• The Court of Appeals affirmed the Appellate Division in a 4-3 decision. The majority focused on the specific language “unnecessarily endanger innocent persons,” holding that the procedure does grant discretion to officers to make a judgment call as to when it is necessary to fire their weapons. The court found that the record supported the fact that all the officers did not see any bystanders in the area while firing and “it cannot be said that the officers failed to exercise discretion in discharging their weapons.” There also was no evidence that the plaintiff was in the line of fire during the exchange of gunfire. Therefore, the court reasoned, the officers exercised their discretion and there was no question of fact as to whether the officers violated their guidelines by firing their weapons.
Although both rulings were in favor of the city and the officers, it’s important to note the reasons given by the dissent. In both rulings, the dissenting judges relied on the officers’ depositions stating they did not look for bystanders. Not looking is not the same as not seeing, the dissenting judges argued.
So, six judges—the Supreme Court judge, two appellate judges and three Court of Appeals judges—all felt there was a triable issue of fact of whether the officers violated the department guideline that prohibits them from unnecessarily endangering innocent persons, and, therefore, may have been negligent in their actions. This compares with seven judges who granted immunity to the city under the professional judgment rule. This case could have easily gone before a jury, with the issue essentially being whether the officers complied with their own department policy.
Policy can never spell everything out in black-and-white; there will always be room for interpretation in court. What if the record did show bystanders were present and/or Johnson was obviously in the line of fire? Would the officers’ action have been seen as “unnecessarily” endangering innocent bystanders then? Or consider the situation of an active shooter indiscriminately shooting at people in a public area. It could be objectively reasonable (e.g., the Graham standard) for an officer to shoot at the suspect, even though it may place bystanders at risk, because of the overwhelming ongoing risk the shooter is creating. But “shall not” is definitive and leaves no discretion. So would the department’s policy in this case create an additional layer of legal debate over whether the specific actions taken “unnecessarily endanger innocent persons” as compared to other options?
I am not remotely suggesting that we should encourage or allow officers to indiscriminately spray bullets whenever they reasonably perceive a threat. But is it wise for departments to rely on additional restrictions in policy as the way to get officers to exercise discretion in police use of force incidents?
I would argue no, for two reasons.
1. First, as I discussed in an earlier article, basic human physiology may make officers incapable of adhering to a guideline such as the one in this case. Stress can cause selective attention (tunnel vision) and auditory exclusion, which can impair hearing. In addition, even under normal conditions a person has a limited attentional load—there are only so many things we can attend to at once. A police officer, under stress and in a complicated and dangerous situation, may focus all attention on the immediate threat. Vision is centered on the suspect and visual stimuli on the periphery may become a blur. Policy is sometimes drafted to meet potentially unattainable results. It may sound good in a perfect world, but it’s not always achievable.
2. Further, written policy or procedure alone cannot sufficiently impact officers’ performance under stress. Creating a list of prohibited behaviors will not ensure officers make the right decisions. Because of limited attentional load, an officer will unlikely be able to retrieve that list from memory and make the appropriate decision in the fraction of a second in which he/she must make a use of force decision. Instead, scenario-based training must be used to reinforce legally sound and attainable policy provisions.
This is why Lexipol policy is based on Fourth Amendment principles rather than more restrictive and possibly unattainable standards. The policy is designed to help protect officers and municipalities from all possible legal challenges—civil (federal and state), criminal and administrative. Why draft policy that will only protect an officer in one legal forum?
Making policy and conducting training consistent with the Fourth Amendment standard is the simplest way to try to satisfy all the legal hurdles in all possible forums, but it also a difficult task. No policy, no matter how carefully drafted, will insulate any agency from all liability. There will always be questions of interpretation of the application of a policy to a case, and litigation is always a potential. But staying true to the Fourth Amendment standards is the place to start.
Note: For more information on the impact of stress on human physiology, see Chabris, C. & Simons, D. (2010) The Invisible Gorilla: How Our Intuitions Deceive Us. New York, Crown Publishing Group; Schmidt, Richard A. and Lee, Timothy D. (2014) Motor Performance and Learning, 5th Edition. Champaign, IL: Human Kinetics, Chapter 3. There are also numerous other sources on the topic and some can be find through the Force Science Institute website at www.forcescience.org.