Force Science News #46:

New Law Shifts Burden of Proving Justification in Officer-Involved Shootings

In this issue:

 

I. New Law Shifts Burden of Proving Justification in Officer-Involved Shootings

 

II. Force Science is Hot in Britain

 

III. FSRC Board Member Helps Aussies After Police Fatalities

 

IV. The Seminar You’ll Wish You Attended If A Shooting Erupts

 

I. AZ COPS WIN AS NEW LAW SHIFTS BURDEN OF PROVING JUSTIFICATION

IN OFFICER-INVOLVED SHOOTINGS

 

What is described as a “huge” legislative shift in favor of POs has taken place in Arizona, where the rules about justifying the use of deadly force have been significantly changed.

 

This spring ['06], the governor signed into law Senate Bill 1145 which, in effect, removes the burden of proving justification in an OIS shooting from the officer who pulled the trigger. Anyone who uses deadly force against an LEO, however, still must prove justification or face criminal punishment.

 

 

Under the state’s previous law, according to Dale Norris, executive director of the Arizona Police Assn., an officer delivering lethal force bore the burden of proving by “a preponderance of evidence” that he or she acted with justification. “Now so long as there is some credible evidence that an officer’s action was justified–a witness saying that the suspect pointed a gun at the officer and refused to drop it, for example–the burden is shifted to the state to prove beyond a reasonable doubt that the officer acted unjustifiably,” Norris explains. “That changes the whole complexion of things.”

 

Norris would like to have seen an even stronger new law, in which a “rebuttable presumption” would be made that any force used by an officer is reasonable per se. But, he told Force Science News, “You don’t look a gift horse in the mouth, and the new law as passed and signed is a huge change.”

 

Indeed, he says, if the new law had been in effect at the time of one of Arizona’s most infamous prosecutions of a police officer, “I doubt seriously that the officer would even have been charged.” He’s referring to the shooting by Dan Lovelace of a female suspect who attempted to drive into him as he was investigating her submitting a forged prescription at a drug store’s drive-up window.

 

Lovelace, then a motor officer in a Phoenix suburb, was charged with second-degree murder and manslaughter and brought to trial 2 years ago with the prospect of a 24-year prison sentence. He was acquitted after research experiments by the Force Science Research Center at Minnesota State University-Mankato established that forensic evidence introduced against him in the trial was, in fact, scientifically invalid. [For more details on the Lovelace case and these experiments, which concerned spent shell ejection patterns, see FSN Transmission #1, sent 9/28/04.]

 

Background on the new law: A year or so ago, Lt. Mark Hafkey, president of the Phoenix Police Sergeants and Lieutenants Assn., attended a seminar presented by Dr. Alexis Artwohl, a member of FSRC’s national advisory board and a former police psychologist. During her program, she deplored the fact that POs are often treated like criminal felony suspects after they’ve been involved in a shooting, even though their use of deadly force to defend themselves or someone else is an acknowledged responsibility of their job.

 

Arizona statute at the time said that “anyone who shoots anyone else, whether the shooter is an officer or a civilian, has the burden personally to justify their actions,” Hafkey says. And in his mind, “the fact that an officer would be made a suspect in a felony just for doing his job would impair the officer’s ability to overcome this mentally” and use deadly force when necessary.

 

Motivated by Artwohl’s presentation, he went to the PPSLA board and got its approval to work to change the law. He then took the matter to Norris at the APA. Norris, an attorney and former Phoenix officer, was researching the matter when the gun lobby proposed and pushed for SB1145, which was enacted last April. As signed, the law benefits not only law enforcement but also civilians who shoot home invaders, for example, in self-defense.

 

“We were approached repeatedly by prosecutors to oppose changing the law,” Norris says, but the association declined to do so.

 

Because the matter was still being researched by his office when the Senate bill was introduced, Norris is not certain the extent to which other states burden officer shooters with proving justification. But he believes such statutes are common at least in the Western part of the US.

 

If your state takes that position, you may want to consider lobbying for a change.

 

II. FORCE SCIENCE RESEARCH A HOT TOPIC IN BRITISH POLICING

 

The Force Science Research Center is gaining major visibility among British law enforcement, thanks to the key role the organization played in freeing 2 officers from criminal charges in a controversial fatal shooting and to a significant research project the Center has underway in England that is expected to break new ground in understanding tunnel vision and tunnel hearing.

 

Last month [5/06] FSRC’s executive director, Dr. Bill Lewinski, appeared before 2,500 officers at a National Police Federation Conference in Bournemouth, England, to explain the mission of the Center, the research it has conducted to date and specifically the application of some of this science to the highest profile OIS case in Britain in decades.

 

In that case, an inspector and a constable with the London Metropolitan Police shot and killed a drunken grandfather who pointed what they believed was a sawed-off shotgun at them during a street confrontation. The “weapon” turned out to be a table leg wrapped in a blue plastic bag, and after an investigation concluded that the officers had deliberately shot the man in the back, they were arrested on a variety of criminal charges, including gross negligence manslaughter, perjury, conspiracy to pervert justice, and suspicion of murder

 

The case dragged on for 6 years, with the officers facing potential long prison terms, until Lewinski was called in at the eleventh hour and applied findings from FSRC’s research regarding time and motion in shooting encounters to establish that the officers had been falsely accused. This was the first time Force Science findings had been introduced into the British court system. [See Transmission #33, sent 12/2/05, for a full narrative of this incident and its aftermath.]

 

Lewinski’s Conference appearance followed a 2-day presentation he and FSRC national advisory board member Dr. Alexis Artwohl made at England’s Leadership Academy for Policing, along with notable British experts on use of force. The Leadership Academy at Centrex/Bramshill is similar to the FBI Academy at Quantico, VA, in the US. The presentation was focused primarily for law enforcement command staff personnel.

 

In October, Lewinski and Artwohl will again appear as featured speakers at a seminar on “Death Following Police Contact,” sponsored by the Constables Branch Board of the London Metro police. They will present the latest FSRC findings on human performance in officer-involved shootings.

 

During that visit, Lewinski will appear before the Policing Affairs Committee of the House of Parliament. This is an oversight group on law enforcement, akin to the Committee on Homeland Security of the US House of Representatives.

 

Meanwhile, the BBC (British Broadcasting Corporation) has funded the filming of a 1-hour science documentary by the production group Films of Record on the research of FSRC. This is projected to air on the British television program Panorama next fall.

 

The producers hope the film will “ultimately increase public confidence in police by informing them of the reality of what happens in the brain and on the ground when [officers] draw their guns and shoot,” according to a Panorama spokesperson.

 

The program, which is expected to deal heavily with the “shot-in-the-back” case mentioned above, will also explore one of the Center’s current research projects, now underway with the cooperation of London police.

 

This concerns identifying the brain processes involved in tunnel vision and tunnel hearing, with the hope of better understanding and possibly compensating for these phenomena during high-stress encounters. An initial phase of the research involves measuring officers’ brain activity during high-speed and pursuit driving.

 

The study, funded by the Constables Branch Board, is headed by Dr. Jonathan Page, a member of FSRC’s technical advisory board and a cognitive psychologist at Minnesota State University-Mankato where the Center is headquartered.

 

III. FSRC BOARD MEMBER HELPS AUSSIES AFTER POLICE FATALITIES

 

Police in the state of Victoria in Australia suffered back-to-back tragedies last year, and now have turned to a Force Science Research Center board member for help in an effort to prevent recurrences.

 

In the first incident, a constable was overpowered and disarmed during a post-midnight traffic stop, then murdered with his own gun. The suspect stole his patrol car, drove to a field a few miles away and there took his own life with the constable’s sidearm as other officers closed in on him. Just 2 days later, a second constable was run down and killed during a vehicle stop.

 

The Legal Services and Investigations Section of the Victoria Police in Melbourne asked FSRC national board member Dave Grossi to review the circumstances surrounding these deadly incidents, analyze why they occurred and offer recommendations on how to prevent similar occurrences in the future.

 

“While officer disarmings have dropped significantly in the US since the 1980s,” Grossi told Force Science News, “‘gun grabs’ have gone up in Australia, particularly over the last 8 years.” Victoria PD, which still uses revolvers, asked Grossi for a needs analysis on (among other things) weapon retention issues, ground-fighting training, and the possibility of going to “smart gun” technology.

 

In lengthy reports, including some 30 pages of reference material, sent off to Melbourne today [6/9/06], Grossi makes recommendations specific to each of the deaths. His suggestions for preventing future gun-grab fatalities include increasing weapon-retention skills, reactionary gap training, holster review and an improved ballistic vest policy.

 

As to the traffic fatality, he proposes tactics and increased training for conducting unknown-risk vehicle stops, passenger-side approaches, better police-vehicle positioning on Australia’s narrower, faster roads, reflectorized tape on squad cars’ inside door panels and reflectorized vests for officers, and the ordering of violators out of their vehicles to a location of mutual safety when appropriate.

 

IV. THE SEMINAR YOU’LL WISH YOU’D ATTENDED IF A SHOOTING ERUPTS

 

REMINDER: You can still register for the special seminar later this month in Clackamas, OR, on what you need to know about the physical, emotional, and legal aspects of controversial officer-involved shootings, featuring the latest findings from the Force Science Research Center.

 

The June 29-30 seminar, “Understanding and Investigating an Officer-Involved Shooting,” will focus particularly on high-profile shootings that provoke intense community unrest and active hostility toward LEOs and their agencies. The program is designed for patrol personnel, investigators, trainers, administrators, and others concerned professionally with lethal-force encounters.

 

A portion of the proceeds will be donated to FSRC to advance the Center’s unique research into the human dynamics of high-threat confrontations.

 

Highlights of the program include:

 

–A full day’s presentation by FSRC’s executive director, Dr. Bill Lewinski, on the Center’s critical research discoveries that can totally change the interpretation of many police shootings, plus his practical pointers for “Dealing with a Racially Charged Shooting.”

 

–A 1/2-day exploration by police psychologist Dr. Alexis Artwohl, FSRC national advisory board member, of perceptual problems that can affect your performance during a shooting and your memory afterwards. She’ll also offer her important recommendations of the proper procedures for conducting an OIS investigation.

 

–A luncheon address by Dr. Suzanne Best, senior research psychologist at the University of California-San Francisco and one of the nation’s top authorities on critical incident stress.

 

–A panel discussion on “Legal Representation of Officers Involved in a Shooting” and on “Employer and DA Perspectives,” featuring prominent LE labor attorneys, prosecutors and administrators.

 

The seminar, jointly sponsored by FSRC and the law firm of Snyder & Hoag, will take place at the Monarch Hotel and Conference Center, 12566 SE 93rd Ave., Clackamas, OR, just 15 minutes south of the Portland airport. Admission is $275, with discounts for 3 or more from the same agency.

 

For more information or to register, contact Kathy Pearson at 541-342-8100 or visit: www.snyderandhoagllc.com.

 

Next month, Lewinski will appear as a featured speaker at a joint meeting of the Arizona POST Board and the Arizona Chiefs Assn. in Tucson (July 10).

 

Also watch for a detailed account of FSRC research, scheduled to appear in the July issue of the Journal for the Association of Crime Scene Reconstruction. That article, “‘I Swear…I Don’t Know How I Shot Him In The Back’: An Examination Of Police Officer Mental Chronometry,” is authored by 3 PhDs affiliated with FSRC and Minnesota State University-Mankato, Dr. Jeffrey Bumgarner, Dr. Bill Hudson, and Lewinski.

 

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Written by Force Science Institute

June 9th, 2006 at 5:11 pm

© 2017 Force Science Institute Ltd.