Editor’s note: This article is the last in a series excerpted and adapted from an article originally printed in The Chief’s Chronicle; New York State Assn. of Chiefs of Police.
Article 1: Priority of Life: Building a Better Model for PERF’s First Guiding Principle
Article 2: Above and Beyond Graham v. Connor? Examining PERF’s Second Guiding Principle
Article 3: The Legitimacy Test: A More Practical Approach to De-Escalation
Law enforcement leaders today face significant pressure to change use of force policies and procedures. Much of this pressure comes from well-intended but often misinformed citizens, community leaders and the media. In March 2016, the Police Executive Research Forum (PERF) released the Guiding Principles on the Use of Force. This report listed 30 Guiding Principles that it said were “intended to take policing to a higher standard of performance and services, and to make policing safer for everyone.”
This series of articles reflects concerns about how some of the principles may be interpreted and haphazardly adopted and is designed to help law enforcement administrators understand the complexity of some of the principles. The PERF report is an important piece of the ongoing dialogue on police use of force, and a closer examination of some of its recommendations is warranted.
In this article, I’ll take a look at the eighth Guiding Principle, which calls for a prohibition on shooting at vehicles, and show why this recommendation may not get to the root of the real problem.
PERF Guiding Principle #8
Shooting at vehicles must be prohibited.
My concern with Guiding Principle #8 is simple: 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. In fact, the PERF report acknowledges in a quote on page 46: “A strict policy does not mean there will never be an exception to the rule.” If you know this will reasonably happen, then policy should provide for such possibility. Additionally, administrators must understand that the root cause of some issues cannot be addressed by merely adopting a “shall not” policy.
Consider two real-life examples to illustrate this point:
1. 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 using the PERF recommendation, this would be a violation of policy. Bottom line: Completely banning behavior may come back on you.
2. Compare this with another recent real-life example. An officer is investigating a noise complaint involving loud music coming from a vehicle parked on a street. The officer starts to interview the lone driver/occupant, who drives forward and then puts the car into reverse and backs into a roadway. The officer runs alongside the vehicle and then, once the vehicle is backed into the roadway, stands in front of the vehicle with his gun out, yelling at the driver to stop. The vehicle starts to move forward with the driver’s hands visible through the windshield. The officer steps to the side while the vehicle continues forward, veering right, away from the officer. As the car races past him, the officer fires several shots at the vehicle, striking and injuring the driver. During the subsequent radio transmissions, the officer indicates that the driver tried to hit him and that he barely got out of the way. By the context and tone of his transmission, it does appear that the officer truly perceived and believed this to be the case. The officer’s in-car video, however, appears to make it clear the driver could have very easily run over the officer, and yet apparently chose not to.
PERF is correct to identify shooting at vehicles as a problem. 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). Administrators should also understand that 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 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.
Legal vs. Legitimate
Now let’s compare our examples. The first involved an actual imminent threat to an officer, while the second involved a perceived threat to the officer. Were the officers’ actions legal? In the first case, it would be hard to imagine that a court would find the use of force objectively unreasonable, while in the second it could easily go the other way.
Were the actions legitimate (legal plus the right thing to do)? In the first example, an officer was at imminent risk of serious physical injury or death. The backup officer had no other viable options, so the use of force was legitimate, but we are left with important questions: Would an absolute ban on shooting at vehicles have prevented the backup officer from firing and terminating the threat? If not, could a ban have caused him to hesitate, perhaps allowing further injury or increased risk of death to the trapped officer?
In the second example, the officer’s actions are not legitimate. Firing at a vehicle as it is coming toward the officer and then as it drives away—when the primary objective of the officer should be to get out of the way—is not legitimate even if a court were to find the use of force objectively reasonable. Now let’s look at this situation from the officer’s perspective and assume he believed he was facing an imminent threat from the vehicle. Will policy alone be enough to prevent him from making that split-second decision, under high stress, to shoot? Will a strict ban on shooting at vehicles address the primary issue here–stopping officers from placing themselves or vehicle occupants at risk by attempting to stop vehicles by standing in front of them and/or shooting at them?
We could argue that it might, but we’d be missing the point. Our purpose here is twofold: reduce lethal use of force against subjects who may simply be fleeing or out of control, and prevent officers from getting killed and injured by subjects who are using vehicles as weapons. Whether policy bans shooting at vehicles does not address this purpose, because, as noted above, there are times when shooting at a moving vehicle is appropriate. A policy that bans shooting at vehicles out-right places the officer and the agency on the defensive should litigation develop from an incident.
Rather, what we’re after is behavioral change, which involves much more than policy; it involves training and culture. Officers must be trained that squaring up and shooting at a vehicle racing toward them does not make sense. That may be more easily accomplished with new recruits, but for officers already on the job, the reality is that they may be responding to years of range training that program them to shoot at the threat. Changing the policy is hardly enough; it will also require retraining and reinforcement through day-to-day supervision.
The other part to this equation is organizational culture. In the second example, the officer put rapid apprehension of the suspect above all other priorities, including his own safety. Changing this type of reaction requires a change in the organization’s culture, emphasizing that the apprehension of the suspect and/or seizure of evidence is not worth jeopardizing the safety of the officer or the safety of the occupants of the vehicle.
Carefully crafted policy language, combined with proper training, can meet the intent of PERF’s Guiding Principle #8 while accommodating exceptions. 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.
As with any policy, the policy itself is just the beginning. Training and supervisory review are needed to ensure officer actions meet the intent of the policy. The Lexipol Use of Force Review Board Policy requires the review board to be convened for every discharge of a firearm (excluding training) and whenever a use of force by a member results in very serious injury or death to another person. A primary responsibility of the board is to consider whether training should be developed or revised and whether policy should be reviewed. Such a review can help to identify whether the issue was with the officer or whether the issue is potentially an organizational problem, capable of being repeated by other officers. In such cases, training and policy issues can be identified and addressed.
Lexipol Daily Training Bulletins (DTBs) reinforce policy by providing daily review of policy with scenario-based training. Use of force is a topic that is repeatedly covered, along with other high-risk, low-frequency behaviors. Policies on other high-risk activities, such as deployment of control devices or electronic control weapons, initiating and/or continuing vehicle pursuits, initiating and/or continuing foot pursuits, and crisis intervention incidents and civil commitments all provide comprehensive guidance to officers with factors to consider to assist in the decision-making process. Further, reporting requirements result in supervisory review and reinforcement of policy.
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 sought after by PERF’s Guiding Principle #8.
For more on the topics discussed in this article, watch these on-demand webinars:
Still Clinging to a Use of Force Continuum or Labeling Force Levels? You’re at Risk!
Priority of Life: A Model for Improving Officer Safety and Reducing Risk
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 the immediate 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.