The risk of keeping a finger on the trigger when not intending to shoot has long been emphasized in Force Science research reports.
The potential human toll–and the liability burden–are vividly illustrated in a recent Appellate Court decision in which justices ruled that officers are not guaranteed qualified immunity from legal action when a shooting is purely unintentional and accidental.
The case arose from a midnight raid by a municipal SWAT team on an apartment in Massachusetts suspected of harboring several youthful crack dealers with records of violent offenses and ties to street gangs.
In a pre-action briefing, the operators were told that when they crashed into the place they would likely encounter the lessee, a 68-year-old step-father of one of the raid targets, who was “not suspected of any involvement in the illegal activity underlying” the search warrant. They were advised that the elderly man had “no history of violent crime or of owning or possessing a weapon and…posed no known threat to the officers.”
Indeed, the team confronted him in a hallway, roused from bed and startled at what was happening. He immediately complied with orders to lie face down on the floor, hands above his head. An operator was told to watch him while others canvassed the premises.
The officer did so by pointing a loaded M-4 carbine, “with the safety off and his finger on the trigger,” at the old man’s head, according to the court’s recap of the incident.
“At some point,” the court recounted, the operator “pulled the trigger of his rifle and shot” the detainee. The single round fatally pierced the man’s head, neck, and chest.
The officer claimed the rifle unintentionally discharged when he lost his balance and fell back while trying to handcuff the victim. Everyone acknowledged that he had “no intention of shooting”; the shot “was an accident.”
When the dead man’s estate brought a 1983 civil rights suit against the operator and his department, the defense argued in federal district court that the nature of the shooting should be a pivotal consideration.
Because it was an accident and not a deliberate act, defense attorneys reasoned, the officer was entitled to the protection of qualified immunity. They moved for summary judgment to dismiss the case.
The district judge denied the motion, holding that a reasonable jury could find that the officer had violated the victim’s 4th Amendment rights. The law was “clearly established,” the judge ruled, “that pointing a loaded firearm at the head of an innocent and compliant person, with the safety off and a finger on the trigger, is not constitutionally permissible.”
Even the “accidental use of deadly force in the course of an intentional seizure may violate the Fourth Amendment if the officer’s actions…were objectively unreasonable,” the court explained. And in this case, there were grounds to conclude that “the officer’s actions leading up to the shooting” were unreasonable and constituted the use of excessive force.
Last month, a three-judge panel of 1st Circuit US Court of Appeals sustained the District Court’s decision, agreeing that the case must go to trial.
“Where an officer creates conditions that are highly likely to cause harm and unnecessarily so, and the risk so created actually, but accidentally, causes harm, the case is not removed [by qualified immunity] from Fourth Amendment scrutiny,” the justices declared. “It is close to self-evident that a jury could find as a matter of fact that [the operator’s] actions were not reasonable….
“[T]his is especially true where, as here, a jury could find that the officer is not forced to act based on a split-second judgment about the appropriate level of force to employ….[This officer] had adequate time to determine that there was no reasonable threat…and to calibrate his use of force accordingly.”
The appellate decision puts “police officers on notice that a warrant to conduct a SWAT raid does not grant them license to aim their weapons at the heads of submissive and nonthreatening bystanders,” the justices wrote.
Case law indicates that there is “widespread agreement” with this position among the nation’s other circuits, the panel said.
Appropriately, the Court noted, the operator should have kept his finger outside the trigger guard, the safety engaged unless the detainee was perceived as a threat, and the muzzle pointed in a safe direction, employing the contact/cover tactic in cooperation with another officer for the cuffing procedure.
The Court’s decision can be accessed in full by clicking here.