The deadly dilemma: shoot or don't shoot?
When law enforcement officers fire their guns, the immediate consequences of their decisions are realized at the rate of 1,500 feet per second and are beyond reversal by any level of official review. (1) --Edward McErlain
Every day, law enforcement officers must draw their firearms for the defense of the public, fellow officers, and themselves. In the majority of situations, the officers fire no shots because the act of producing a firearm seems to stop the suspect's behavior. Sometimes, however, this is not the case, and the officer is forced to shoot. Because officers possess the authority under certain circumstances to deprive individuals of their freedom by arresting them, it should come as no surprise that sometimes they must use force, even deadly force, to obtain compliance. After all, in more simplistic terms, it often is not the officer's decision to use deadly force but the suspect's actions that require it. (2)
An example to help clarify this could involve a patrol officer who approached a private residence to investigate a trespassing complaint. From inside the house, a man fired several shots at him. Although seriously wounded, the officer returned fire and killed the shooter. However, even when the circumstances surrounding police shootings have clearly indicated that the only option available to officers was the use of their firearms, some segments of society have appeared very critical of such actions. While it is not unreasonable to question what law enforcement officers do, concerned citizens should endeavor to understand that the use of force, especially deadly force, constitutes a diverse issue--an emotional and controversial one. The immense responsibility placed upon law enforcement officers understandably necessitates the intense review of every incident involving the use of deadly force. However, it sometimes appears that these examinations stem from the misguided perspective of what the officer did wrong.
The courts seem to give officers wide deference with the use of deadly force and generally decide in their favor. As stated in Graham v. Connor, police "are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." (3) Add to this mix that if officers incorrectly assess the situation or fail to act, fellow officers, citizens, or the officers themselves may be seriously injured or killed. Officers often have to make decisions in a matter of seconds that others want to second-guess and critique for years. Whereas some segments of society may appear to prejudge officers' actions or question their responses, the same certainly cannot be said of the courts. (4)
In the often-cited case Sherrod v. Berry, the court stated, "When a jury measures the objective reasonableness of an officer's action, it must stand in his shoes and judge the reasonableness of his action based upon the information he possessed and the judgment he exercised in responding to that situation.... Knowledge of facts and circumstances gained after the fact (that the suspect was unarmed) has no place in the trial court's or jury's proper post-hoc analysis of the reasonableness of the actor's judgment." (5)
Police often shoot because they are forced to, and it is a decision usually formed in a very short time period. Interviews with officers who had used deadly force revealed, in most cases, that they made the decision quickly. But, of great importance, up to the point where they actually decided to fire their weapons, they had not considered using deadly force. And, equally interesting, most of these officers still seemed surprised that they had to do so. (6)
According to the FBI's annual Law Enforcement Officers Killed and Assaulted (LEOKA) report, police are assaulted about 60,000 times each year, with approximately 10,000 of these attacks involving weapons, of which 3,000 are firearms. (7) In some of these incidents, officers have had to shoot someone to save other lives, including their own.
Most people outside the law enforcement community generally do not realize that many officers, given circumstances where they could employ deadly force, refrain and hesitate until the last possible moment or do not use it at all. For example, if officers shot and killed 10 percent of those who assaulted them, they would be shooting and killing 6,000 individuals a year. If they shot 50 percent of those who assaulted them with weapons, they would shoot 5,000 people annually. The reality is that police shoot and kill about 350 individuals each year, a number that can illustrate the frequency with which officers refrain from using deadly force. (8)
These statistics--how often the police shoot someone, compared with the number of assaults on officers and how often they are shot--indicate that officers usually are reluctant to shoot, which sometimes costs them their lives. As an example, after a trooper stopped a vehicle for a traffic violation, the driver exited the car and pointed a rifle in his direction. The trooper repeatedly commanded the individual to put down the gun. While the trooper refrained from using deadly force, the driver shot and killed him. This case is one of several published in recent editions of LEOKA where officers, after repeatedly ordering individuals to put down their firearms, were shot and killed by subjects who ignored these commands. Particularly disturbing, some of these incidents were recorded on the victim officers' in-vehicle video/audio systems.
A review of LEOKA data for the past 10 years (1996-2005) reveals that only 126 of the 575 officers feloniously killed in the line of duty fired their weapons. (9) The law enforcement profession spends a significant amount of resources training officers to deal with critical incidents, yet, statistically, most of the officers killed in the line of duty did not fire their weapons or even attempt to use them. A problem in examining this is that no one can go back and ask these officers why.
The significance of officers being killed and never using or attempting to use their firearms became evident in an FBI study of selected felonious, line-of-duty officer deaths. The researchers found that only 15 percent of the officers fired their weapons. In two subsequent studies on officers assaulted wherein all survived, 42 and 58 percent of officers, respectively, fired their weapons. (10)
Because each police encounter is unique and each use of force, including deadly force, is a decision made by the officers involved in the confrontation, trying to explain why an officer does or does not shoot can prove problematic. From a variety of secondary research, interviews with officers and the individuals who assaulted them, and general police literature, the authors discovered several reasons that seemed to emerge as to why officers do not shoot. These fall into four basic categories that, while not intended as an all-inclusive list, appear to cover the larger segments of why officers often do not fire their weapons.
Unwillingness to Shoot People
Law enforcement officers believe that they are there to help people and to keep the peace or, put more simply, "to protect and serve," a message displayed on most police vehicles. It is not in their nature to shoot people. To further explore this dynamic, the instructor of an FBI National Academy course on the use of force asked his students (police executives from across the country) about cases where they could have legally shot someone but did not. Over a 3-year period, 90 percent of these students responded that they had refrained from using deadly force when they had the legal right to shoot. That is not to say that these officers would not have used deadly force. The discussions that always followed this question generally ended with the officers agreeing that they would wait until the last possible moment before using deadly force. (11)
A newspaper study in Portland, Oregon, reported similar findings. For a 2-year period, 28 percent of the officers said that they refrained from using deadly force, even though they had the legal right to employ it, once; another 28 percent did so twice; and 8 percent acted in this manner on three occasions. (12) In another study, 36 of the 50 officers assaulted reported that they had previous encounters where they could have legally used deadly force but did not because they felt that they did not have to. The average number of times the officers could have used deadly force and chose not to do so was four. (13)
Can a policy on the use of deadly force influence an officer's decision to employ it? In one study on officer safety, most of the officers interviewed readily recalled when their departmental policy said they could not shoot but did not remember when they could. (14) What can agencies do to ensure that their policies give officers the utmost help in making the difficult decision to use deadly force?
The first step in developing a policy concerning the use of deadly force is to ensure that it complies with the state and federal laws that the department and its members are sworn to uphold. After establishing this, some agencies have included additional restraints for their officers to consider before using their firearms in a deadly force situation. While policies should contain directives for the security of the members of the community, as well as for the safety of the officers who serve to protect that community, the more details that agencies add may increase the time it takes officers to recall the contents and convince themselves to fire their weapons.
No policy reviewed for this article compelled any officer to use deadly force; officers must decide when to shoot. Departments should test their officers to ensure that they clearly understand the policy, especially those references to the proper time to use deadly force. In addition, agencies should review their policies to ensure that they do not overemphasize negative aspects, such as when not to shoot. (15) After all, in the middle of a critical incident, if officers focus on when they cannot shoot, they may not have time to react and fire their weapons to safeguard innocent citizens, fellow officers, or themselves.
Officers are not always prepared for what threats actually look like. (16) After all, they train with targets that have no characteristics or with ones that resemble stereotypical "outlaws," at least the way they think such criminals should look. In reality, individuals who have attempted to kill or who have killed officers have ranged from grandfathers in their 80s to preadolescent girls. (17) If officers trained with pictorial targets that depicted such threats as these, would they hesitate to shoot? (18)
A convicted police killer stated that he knew the officer covering him would not shoot. (19) Making that judgment, the subject took the officer's firearm and killed him. Only a few months before, the deceased officer had to shoot a juvenile who died from these wounds. Many of his fellow officers felt that this caused him to not want to shoot anyone else.
Detriment to Career
This concept may sound strange, but a segment of sworn personnel believe it. In some departments, the organizational culture, either intentional or not, seems to promote the idea that if officers have to shoot someone, they are doing something wrong. If an agency, after a justifiable shooting, charges the officer for violations of department regulations, none of which relate to the decision to shoot, it sends a strong signal to street officers--do not shoot anyone. Compounding this concern is the issue of the race of those involved in a police shooting. The extent of how this influences an officer's decision to use force is unknown, but many in the law enforcement community believe it exists to some degree. (20) Both of these factors, however, highlight the need for law enforcement organizations and the communities they serve to work together to ensure that officers who must use deadly force receive fair and balanced treatment.
Law enforcement officers need realistic training that incorporates the choices they may have to make on the street. Training instructors must give officers the facts they will need to take appropriate action. The decision to shoot or not to shoot rests with the officers, not the instructors.
Use-of-force policies should be simple, easy to understand, and reinforced through practical exercises. When officers are embroiled in a violent encounter, they should not have to hesitate in making their decisions because they are unsure of their agencies' use-of-force policies.
Law enforcement organizations should develop fair and balanced policies and procedures for investigating officer-involved shooting incidents. They should critique, review, and update these policies on a regular and timely basis.
Departments should encourage contact and educational opportunities with members of the public, the press, citizen groups, and other organizations about law enforcement's use of force. (21) Dialogue and discourse about conflicts, perspectives, and potential divisive incidents before they occur can help improve the critical examination of the issues surrounding the use of force. Officers need to understand that although they have the authority under certain circumstances to use deadly force, they must expect society to examine such incidents in exhaustive detail and, also, in a fair and balanced manner.
When citizens hear gunfire, they can seek cover, but they expect the police to rush toward the sound. After all, only sworn law enforcement personnel have the legal authority to use deadly force under certain circumstances.
As the public's guardians, officers often place themselves between the criminal element and the citizens they protect and serve. In doing so, they sometimes find themselves in harm's way and must use deadly force to safeguard innocent people and their fellow officers, as well as to survive the encounter themselves and continue their authorized duty of upholding this nation's laws.
(1) William A. Geller and Michael S. Scott, Deadly Force: What We Know (Washington, DC: Police Executive Research Forum, 1992), 155.
(2) For details concerning encounters between officers and suspects, see Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller III, "The Deadly Mix: Officers, Offenders, and the Circumstances That Bring Them Together," FBI Law Enforcement Bulletin, January 2007, 1-10.
(3) 490 U.S. 386 (1989).
(4) For additional information on legal concerns, see Thomas D. Petrowski, "Use-of-Force Policies and Training (Parts One and Two)," FBI Law Enforcement Bulletin, October and November 2002; and "When Is Force Excessive? Insightful Guidance from the U.S. Supreme Court," FBI Law Enforcement Bulletin, September 2005, 27-32.
(5) 856 F. 2d 802 (7th Cir. 1988).
(6) Author interviews with students attending the FBI National Academy from 1995 through 1999; and Shannon Bohrer, "After the Shots, What Happens?" FBI Law Enforcement Bulletin, September 2005, 8-13.
(7) U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted; access at http://www.fbi.gov.
(8) U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, available at http://www.fbi.gov.
(10) These three FBI studies comprise research on officer safety conducted over nearly a 20-year span. The researchers, Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller III, interviewed surviving officers and the offenders who assaulted them, as well as those felons who killed officers. They presented their findings in Killed in the Line of Duty: A Study of Selected Felonious Killings of Law Enforcement Officers (1992); In the Line of Fire: Violence Against Law Enforcement (1997); and Violent Encounters: A Study of Felonious Assaults on Our Nation's Law Enforcement Officers (2006). These studies are available from the UCR Program Office at 888-827-6427.
(11) FBI National Academy course, 1996 through 1999, informal survey of about 500 participants. For an overview of the FBI National Academy, see Troy Lane, "Personal and Departmental Benefits of Continuing Education: The FBI National Academy Experience," FBI Law Enforcement Bulletin, May 2005, 1-6.
(12) Supra note 1, 72.
(13) Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller III, U.S. Department of Justice, Federal Bureau of Investigation, Violent Encounters: A Study of Felonious Assaults on Our Nation's Law Enforcement Officers (Washington, DC, 2006).
(14) Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller III, U.S. Department of Justice, Federal Bureau of Investigation, In the Line of Fire: Violence Against Law Enforcement (Washington, DC, 1997).
(15) Ibid., 43.
(16) For additional information, see Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller III, "Officers' Perceptual Shorthand: What Messages Are Offenders Sending to Law Enforcement Officers?" FBI Law Enforcement Bulletin, July 2000, 1-6.
(17) Supra note 7.
(18) U.S. Department of Justice, Federal Bureau of Investigation, Killed in the Line of Duty: A Study of Selected Felonious Killings of Law Enforcement Officers (Washington, DC, 1992); During an interview, a subject, who was 18 years old, 5'7," and 130 pounds at the time he killed a police officer, inferred that his youthful appearance may have misled the officer into believing that he was not a threat.
(19) Anthony J. Pinizzotto and Edward F. Davis, Presentation given to the Maryland Police and Correctional Training Commissions class on deadly force management issues, 2005.
(20) Supra note 1, 147-161.
(21) For additional information, see James D. Sewell, "Working with the Media in Times of Crisis: Key Principles for Law Enforcement," FBI Law Enforcement Bulletin, March 2007, 1-6.
Mr. Bohrer is the range master for the Maryland Police and Correctional Training Commissions in Sykesville and a member of the International Law Enforcement Educators and Trainers Association, the International Association of Law Enforcement Firearms Instructors, the Maryland Troopers Association, and the American Association of State Troopers.
Special Agent Kern heads the Behavioral Science Unit at the FBI Academy.
Mr. Davis, a retired police lieutenant and retired instructor in the Behavioral Science Unit at the FBI Academy, currently owns a private consulting company in Virginia.
By Shannon Bohrer, M.B.A., Harry A. Kern, M.Ed., and Edward F. Davis, M.S.
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|Author:||Bohrer, Shannon; Kern, Harry A.; Davis, Edward F.|
|Publication:||The FBI Law Enforcement Bulletin|
|Date:||Mar 1, 2008|
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