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

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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 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.

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