Should law enforcement officers be allowed to shoot at or into vehicles? The question has dominated discussion for more than a year now, rehashed with each new headline showing that officers sometimes unwisely use the tactic of shooting at vehicles, with tragic outcomes.
As with so many things in law enforcement, politics is at play here, with law enforcement agencies buffeted by contradictory recommendations from activist groups, elected officials, law enforcement research organizations and union representatives.
Fortunately, this does not have to be such a complex situation. Although there appears to be a lot of dissension about the issue of shooting at vehicles, on closer examination we all desire the same outcome: Law enforcement officers should be able to take action to protect themselves and the public against deadly threats, and law enforcement agencies need to find a way to reduce unnecessary shooting at vehicles. What we need is a sound policy approach to achieving those goals.
To Prohibit or Not?
The main policy point of discussion about shooting into vehicles revolves around whether department policy should strictly prohibit it. On the surface, a strict prohibition can seem like the way to go. Too many line-of-duty deaths and injuries, as well as unnecessary shootings of civilians, occur when officers shoot at moving vehicles rather than trying to move out of the way (see Philip D. Wright, FBI Law Enforcement Bulletin, Officer Survival Spotlight: The 4,000-Pound Bullet, April 2016).
Further, the U.S. Supreme Court has never issued a blanket ruling that it is permissible for officers to shoot at vehicles. They have instead only ruled it was allowed in certain cases and under specific sets of circumstances that meet the Graham v. Connor standard of objective reasonableness (see Plumhoff v. Rickard, 134 S.Ct. 2012 (2014) and Mullenix v. Luna, 136 S.Ct. 305 (2015)).
So, in addition to officers placing themselves at risk, shooting at a moving vehicle may also be placing other persons at risk under circumstances that would violate the Fourth Amendment.
But is strict prohibition really the answer? One example that often comes up from those who oppose strict prohibition is that it would prevent officers from stopping a vehicle-based terror attack like the ones in Nice or Berlin. NYPD recently made headlines when it clarified its policy to allow officers to shoot at vehicles in these circumstances.
But we don’t have to resort to theoretical situations. Let’s consider a real-life example: Following a brief pursuit, an offender pulls into his open garage with officers right behind him. One officer pulls his car close to the bumper of the suspect vehicle. The suspect locks himself in his car and refuses to open the door. The officer on the driver’s side decides to cross between the vehicles with the intent of breaking out a passenger-side window. The suspect puts the car in reverse as the officer is behind the car, pinning the officer’s legs between the bumpers. The suspect then slams on the gas and both vehicles proceed down the long driveway with the officer trapped between the cars, screaming for help and in pain.
Another officer is moving alongside the suspect’s window with his gun out, screaming for the suspect to stop. The suspect ignores the repeated warnings and the trapped officer is dropping down lower. The other officer fears the trapped officer is going to die if this continues. He fires three rounds into the suspect’s chest. The suspect’s foot immediately comes off the gas and the vehicles stop, allowing for the trapped officer to be extricated.
Remember, this is a real-life example. Witnesses stated they could not believe how long the officer waited until he shot the driver. As it was, the trapped officer was never able to return to full duty and had to retire. Without the actions of the other officer he would have lost his legs and/or his life. But under a strict prohibition on shooting at vehicles, this would be a violation of policy.
Shall vs. Should
Basically, this discussion boils down to whether you write policy with a strict prohibition and deal with exceptions to the rule when they happen, or write policy that allows for those exceptions while still holding officers accountable for expected behavior. At Lexipol, we favor the second approach. Policy language that definitively prohibits an action will inevitably result in a situation where an officer violates the policy under reasonable circumstances, which in turn can create issues that must be dealt with if litigation results. If you know this will reasonably happen, then policy should provide for such possibility. Additionally, administrators must understand that merely adopting a “shall not” policy doesn’t address the root causes that lead officers to shoot at vehicles inappropriately.
Consider the following language from the Lexipol Law Enforcement Policy Manual:
Shots fired at or from a moving vehicle are rarely effective. Officers should move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants. An officer should only discharge a firearm at a moving vehicle or its occupants when the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle, or if deadly force other than the vehicle is directed at the officer or others. Officers should not shoot at any part of a vehicle in an attempt to disable the vehicle. (emphasis added)
Note that the policy content is consistent with the Graham v. Connor standard while still conveying the policy preference to get out of the way and only use force when the officer reasonably believes it is necessary. Also, note the language used in the Lexipol content, specifically the use of “should” instead of mandatory language like “never,” “shall/shall not” or “must.”
Lexipol defines “should” as “indicates a generally required or expected action, absent a rational basis for failing to conform.” So the policy is not saying officers have discretion about whether to shoot at moving vehicles. Instead, the use of should recognizes that circumstances may arise in which an officer may reasonably believe that strict adherence to policy content will result in an outcome that is inconsistent with the mission and values of the agency and the public. Hundreds of law enforcement agencies have adopted this language and are using it to balance the demands for a policy that curtails unwarranted shootings with the need to protect the agency and the officer from litigation in situations that warrant shooting at a vehicle.
Achieving Behavioral Changes
Of course, the policy itself is just the beginning. Training and supervisory review are needed to ensure officer actions meet the intent of the policy. Use of force review boards play a key role in reviewing incidents and identifying appropriate policy clarifications or training topics. Frequent training on the policy itself, such as the daily scenario-based training offered by Lexipol, is also an important way to reinforce policy in small, memorable chunks. It is this combination—carefully worded policy that accommodates real-life situations, training that reinforces policy, and supervision that ensures policy is being followed—that will bring about the behavioral change we are seeking in the call for a prohibition on shooting at vehicles.
MIKE RANALLI, ESQ., is a Program Manager II for Lexipol. He retired in 2016 after 10 years as chief of the Glenville (N.Y.) Police Department. He began his career in 1984 with the Colonie (N.Y.) Police Department and held the ranks of patrol officer, sergeant, detective sergeant and lieutenant. Mike is also an attorney and is a frequent presenter on various legal issues including search and seizure, use of force, legal aspects of interrogations and confessions, wrongful convictions, and civil liability. He is a consultant and instructor on police legal issues to the New York State Division of Criminal Justice Services, and has taught officers around New York State for the last 11 years in that capacity. Mike is also a past president of the New York State Association of Chiefs of Police, a member of the IACP Professional Standards, Image & Ethics Committee, and the former Chairman of the New York State Police Law Enforcement Accreditation Council. He is a graduate of the 2009 F.B.I.-Mid-Atlantic Law Enforcement Executive Development Seminar and is a Certified Force Science Analyst.