Force Science News #257:

Supreme Court oks deadly force to stop dangerous pursuit

Congratulations to the graduates of the most recent Force Science Certification Course! This excellent group proudly represented 40 agencies from 12 states and we're proud to add them to the ranks of Certified Force Science Analysts. Many thanks to the Glenview, IL Police Department who served as an excellent host and to Sgt. Jim Foley, a graduate of the Certification Course in March, who served as an outstanding point man for this and prior classes held at Glenview PD. For upcoming FS Certification Course dates and locations please visit: www.forcescience.org or click here.

 

In this issue:

I. Supreme Court oks deadly force to stop dangerous pursuit

II. A trainer's question about high-risk vehicle stops

 

I. Supreme Court oks deadly force to stop dangerous pursuit

 

A new Supreme Court decision has been added to the ongoing controversy in law enforcement circles about whether officers should be permitted by policy to shoot at moving vehicles.

 

Last week, the U.S. Supreme Court ruled that officers were justified in firing fatal rounds at a driver to end a dangerous high-speed chase. Further, the court declared, the officers were not guilty of excessive force for sending a fusillade at the offender's vehicle--15 shots in all.

 

"The Supreme Court is making it clear that the Fourth amendment allows the use of deadly force to stop drivers in those exceptional cases when their actions pose a very serious threat to public safety," says police attorney Bill Everett, a legal consultant to the Force Science Institute. "By limiting legal liability in these circumstances, the Court is allowing agencies to put more emphasis on keeping the public safe when developing their policies."

 

A summary of this case (Plumhoff v. Rickard) and the decision in full can be read by clicking here

 

Here's the essence of the matter:

 

DESPERATE FLIGHT. The case began, the Court's decision explains, near midnight on a hot July night in 2004 when a lieutenant with the West Memphis (AR) PD pulled over a white Honda Accord "because the car had only one operating headlight." Closer contact revealed that the windshield bore an indentation "roughly the size of a head," as if the vehicle had struck a pedestrian.

 

The nervous driver denied any recent drinking but failed to produce a driver's license. When the lieutenant asked him to step out of the car, he sped away instead. Quickly, the lieutenant was joined in hot pursuit by a phalanx of five other squad cars as the suspect, with a front-seat passenger, headed on Interstate 40 for a bridge that spans the Mississippi River into Memphis, TN.

 

An attempt at a "rolling roadblock" proved unsuccessful. Undeterred, the driver swerved through traffic at speeds over 100 mph, passing more than two dozen vehicles.

 

Across the bridge, he exited onto a Memphis street and shortly made a sudden right turn, colliding with one of the chase squads closing in. The Honda "spun out into a parking lot" and there crashed into another cruiser. "Now in danger of being cornered," the suspect slammed his car into reverse "in an attempt to escape."

 

An officer and a sergeant exited their units and ran to the vehicle. "Gun in hand," the sergeant "pounded on the passenger-side window." Desperation mounting, the suspect steered into yet another police car. With his bumper "flush against a cruiser," he tromped on the accelerator, spinning tires and rocking his car back and forth, trying to break free.

 

"At that point," the Court recounts, the sergeant "fired three shots into [the suspect's] car." Undaunted, the driver "reversed in a 180-degree arc" and "maneuvered onto" another street, nearly striking another officer on foot in the process.

 

As the suspect continued "fleeing down" the street, two other officers now fired 12 shots toward the Honda, striking the driver and his passenger. The driver "lost control of the car and crashed into a building." Both he and his passenger, in the Court's words, "died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase."

 

The pursuit had lasted "more than five minutes." All the shots were fired within a span of 10 seconds.

 

EXCESSIVE FORCE? A 1983 action was brought in federal court on behalf of the dead driver's minor daughter, alleging excessive force that violated the suspect's constitutional rights. The six West Memphis officers involved in the chase (including the three who fired shots), their chief, and the town's mayor were named as defendants.

 

Specifically, the civil suit contended that the 4th Amendment "did not allow [the officers] to use deadly force to terminate the chase," and that, "even if they were permitted to fire their weapons, they went too far when they fired as many rounds as they did."

 

The district court agreed with the plaintiff. It denied a defense motion for summary judgment based on qualified immunity, holding that "the officers' conduct...was contrary to law that was clearly established" at the time of the shootings. An appellate panel affirmed this decision.

 

The Supreme Court Justices, however, unanimously struck down these findings.

 

OFFICERS VINDICATED. First the Court's decision notes that 4th Amendment claims must be analyzed in accordance with its landmark Graham v. Connor decision; i.e., with the "totality of the circumstances" considered from the perspective of "a reasonable officer on the scene."

 

Then the Court points out that in a previous case in 2007 it held that a "police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." [That case, Scott v. Harris, can be accessed in full by clicking here]

 

The Court concludes there's no reason to depart from that precedent. In the case at hand, the suspect's "outrageously reckless driving posed a grave public safety risk," says the decision, written by Justice Samuel Alito Jr.

 

Collision with police vehicles may have brought the pursuit "temporarily to a near standstill, [but] that did not end the chase.... [A]t the moment when the shots were fired, all that a reasonable police officer could have concluded was that [the driver] was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.... [T]he police acted reasonably in using deadly force to end that risk."

 

As for the lawsuit's claim that 15 shots were too many, the Court says: "We reject that argument. It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."

 

During the brief span when all the shots were fired, the suspect "never abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed...to continue driving until he crashed.

 

"This would be a different case if [officers] had initiated a second round of shots after an initial round had clearly incapacitated [the suspect] and had ended any threat of continued flight, or if [he] had clearly given himself up. But that is not what happened."

 

Given the circumstances and the absence of any compelling prior cases that proscribe firing at a vehicle to terminate a dangerous car chase, the Court ruled that the accused parties were fully entitled to qualified immunity in the shooting "because they violated no clearly established law."

 

Atty. Everett told Force Science News: "One of the startling--and welcome--aspects of this opinion doesn't have so much to do with pursuits as it does with deadly force in general.

 

"The Court flatly rejected the plaintiffs' tactic of using the number of rounds fired to make a good decision look bad. The opinion doesn't mince words: Officers are justified, the Court says, in continuing to use deadly force until the threat has been stopped.

 

"This should give officers more confidence that their training will hold up in court, and should also give a lot of would-be plaintiffs serious pause when considering certain lawsuits."

 

HELP AHEAD. "In this case," notes FSI's executive director Dr. Bill Lewinski, "the circumstances were relatively straightforward. The Supreme Court determined that the suspect vehicle and its driver posed a clear threat and shooting to end that threat was both practical and appropriate.

 

"However, in a broader context, including situations in which vehicles are used as assault weapons against officers, shooting at a moving vehicle can become a more complex issue. Then a myriad of behavioral science factors may come into play, including speed and distance calculations, changing trajectories, unconsciously altered perceptions of threat, psychophysiological and perceptual phenomena like "looming," and so on.

 

"Confronted with contradictory forensic evidence, officers may find themselves challenged to articulate why they believed a high level of threat existed when, in fact, the actual threat seems to have been much lower. They may be puzzled as to why rounds they insist were fired directly at a car bearing down on them ended up suspiciously impacting in a remote part of the vehicle.

 

"The dynamics involved in shooting at moving vehicles affect policy makers, trainers, street officers, investigators, force reviewers, and legal representatives alike. All need to understand the sometimes surprising nuances of human behavior under stress in these high-intensity circumstances."

 

A near-term goal of Force Science, Lewinski says, is to thoroughly explore this area for law enforcement. Currently in discussion are groundbreaking research projects and instructional courses that will "help to unravel the perplexities of this issue and will equip all those involved to make better decisions."

 

FSN will report more details as these future plans take shape.

 

EDITOR'S NOTE: Three days after the Supreme Court decision, a grand jury in Cuyahoga County, OH, indicted six Cleveland PD officers on criminal charges for their roles in a controversial pursuit-related shooting in which two unarmed subjects were killed. A patrol officer, who had fired nearly 50 rounds in the incident, was charged with voluntary manslaughter and five supervisors with dereliction of duty.

 

In news reports, the county prosecutor contrasted this case with the one ruled on by the Supreme Court. In the Cleveland incident, the suspect vehicle "was fully stopped," prosecutor Timothy McGinty explained. "Escape was no longer even a remote possibility. The flight was over. The public was no longer in danger because the car was surrounded by police cars and 23 police officers in a schoolyard safely removed from pedestrians and traffic."

 

An attorney for the police union, however, lambasted the prosecutor and the indictment, charging that McGinty "had the benefit of hindsight," spending about 18 months dissecting decisions and actions made in seconds.

 

Click here for more details from a local news account.

 

II. A trainer's question about high-risk vehicle stops

 

A Canadian trainer who is certified in Force Science Analysis posed a tactical question about high-risk vehicle stops in a recent email:

 

My agency trains that on high-risk vehicle stops the suspects should be walked forward, facing the arresting officers. The reasoning is that if the subject draws a firearm from his/her waistband, the members will have more time to see and recognize the movement, as well as the object in hand, and react.

 

I disagree. Looking at your research, a subject can draw a firearm from a front or rear waistband remarkably fast, come up on target, and fire. I don't believe we could process that action, confirm identification of a firearm, and fire a round (let alone multiple rounds) before the subject could draw unimpeded and fire at us. Also, walking forward the subject will have time to focus on their target before drawing and thus could quickly deliver a more accurate shot.

 

If commanded to walk backward, however, a subject will have to spin before firing and will need time to process a potential target to be accurate. That would work to our advantage, I believe.

 

Are my thoughts on this consistent with your research? Have there been studies on this particular issue?

 

Dr. Bill Lewinski, executive director of the Force Science Institute, responds:

 

Yes, you are right: A suspect who is allowed to face officers as he is commanded to move toward them on a high-risk stop does gain a fractional time advantage in drawing and firing a gun tucked into his waistband.

 

Our research has shown that once a forward-facing offender's hand touches his gun, he can draw and fire at officers in an average of about a quarter-second. If, however, he must draw, spin around, and fire after reaching the gun, that typically takes from one-third to one-half second or longer depending upon the movement the person makes as they are turning and shooting. Plus, as you point out, with his back to officers he is not able to visually locate a target before making his move, which will hopefully impair his initial accuracy.

 

In practical terms, either way can be lightning fast and the assailant may well get shots off before officers can react.

 

A critical factor is where the suspect's hands are when he starts to make his move. If his hands are raised high above his head or stretched fully out to his side, reaching a waistband gun can take twice as long and require a more dramatic move. Also, a gun in a waistband is less stable than one that's holstered, so grasping and drawing the weapon in a fast drive-and-spin may be somewhat impeded.

 

Whatever tactic is used to bring a high-risk subject to a point of custody, it's critical that officers maintain the best cover possible during the process. This is particularly true for the officer issuing commands, because his or her voice can accurately betray location even to a suspect walking backward. [To send a comment or question to Force Science News please e-mail: editor@forcescience.org.

 

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