Law Enforcement, Corrections,
Private Security, and Civilian
What's Your Use-of-Deadly-Force Standard?
by Michael A. Brave, Esq., M.S., C.P.S., C.S.T.
"Dispatch - all units, armed robbery in progress - Ajax
Liquor, Fourth and Main."
These incident examples are tense, uncertain, and rapidly evolving. And, the responding officers when faced with deadly force may only have seconds to choose a deadly-force option that could impact the rest of their lives. If the officers make a poor decision they could face administrative discipline/termination, criminal prosecu- tion, civil litigation, community hatred, and media chastisement. Conversely, if the officers hesitate in their use of reasonable-deadly-force because their agency has failed to provide them with adequate guidance and training, or because of their fear of litigation, discipline, etc. the officers could lose their lives or could be the catalyst that results in others losing their lives.
Every time officers are forced to make deadly-force decisions they are putting their futures (life/death, financial, career, family, societal) on the line. The time of the incident is not the time when your officers should be forced to decide whether they can or cannot use deadly force. Long before the incident occurs the law enforcement agency executives must decide under what circumstances they will allow their officers to use deadly force. Executives need to identify potential problems and need to reasonably limit officer discretion through policy development and that is why every agency needs to develop a competent use-of-force policy.
An agency's first step in providing competent guidance, direction, and training to its officers in the use of deadly force is to provide a sound, unambiguous written deadly-force policy (of course an agency must also provide a non-deadly force policy as well). The policy must set out in clear and unambiguous terms when officers can use deadly force. The balance of this article is not going to examine all of the factors that should be considered in drafting a use-of-force policy. Rather, this article is specifically limited to discussing the major use-of-deadly-force standards which have been adopted by various agencies and jurisdictions.
Before examining the use-of-deadly-force standards, we must first look at a few definitions. While definitions vary from jurisdiction to jurisdiction we can find some common ground. One of the most misunderstood use-of-force terms is "deadly force." There are many different definitions and interpretations of "deadly force." However, a good working definition of "deadly force" for decision making might be: "[D]eadly force is force which the actor uses with the purpose of causing, or which he knows to create, a substantial risk of causing death or serious bodily harm."(1) "Serious bodily harm" is "[A] bodily injury that: (1) creates a substantial risk of death; (2) causes serious, (3) permanent disfigurement; or (4) results in long-term loss or impairment of the functioning of any bodily member or organ."(2) It is also worth noting that most deadly-force definitions find that the term "serious bodily harm" is synonymous with "great bodily harm."(3) Obviously, "deadly force" does not equate to "lethal" or "fatal" force. "Lethal" or "fatal" force is force which is likely to cause death and not merely serious bodily harm.
Objective Reasonableness Test:
Before we look at the different use-of-deadly-force standards we must look to the overriding standard of Graham v. Conner(4). In Graham, the United States Supreme Court stated that the proper measure to determine whether a law enforcement officer's use of force is excessive, is the "objective reasonableness" test under the Fourth Amendment. The Court stated that the Graham analysis applies to all alleged law enforcement excessive force claims - deadly or not - in the course of an arrest, investigatory stop, or other "seizure" of a free citizen. Therefore, regardless of which use-of-deadly-force standard an agency adopts, the use of force must meet the Graham Fourth Amendment "objective reasonableness" requirement of seizures.
Now let's look at six major use-of-deadly-force standards. The lowest, least restrictive, use-of-deadly-force standard is the standard enumerated by the United States Supreme Court in Tennessee v. Garner. The Garner standard, which is also referred to as the "fleeing felon standard," allows for the limited use of deadly force against fleeing felons under three restrictive criteria. Under the Garner "fleeing felon standard," a law enforcement officer can use deadly force against a fleeing felon if: (1) the use of deadly force is necessary to prevent the felon's escape, (2) the fleeing felon has threatened the officer with a weapon or the officer has probable cause to believe that the felon has committed a crime involving the infliction or threatened infliction of serious physical harm, AND (3) the officer gives the felon some warning of the imminent use of deadly force - if feasible.
Some jurisdictions which do allow the use of deadly force under the Garner standard do not include all three Garner requirements in their use-of-deadly-force statute. Remember, since a law enforcement officer's use of force is subject to the requirements of the United States Constitution, and because of the Constitution's Supremacy Clause, a state, or lower government subdivision, cannot create a use-of-force standard that is less restrictive than the standard defined by U.S. Supreme Court and federal case law as it pertains to individual jurisdictions. A law enforcement agency which adopts the "fleeing felon" standard (assuming the agency is in a jurisdiction that allows the use of deadly force under the "fleeing felon standard") must be sure to include Garner's three requirements - even if these requirements are not enumerated in the state statutes. Therefore, if an agency is in a jurisdiction which allows the use of deadly force under the "fleeing felon standard", the lowest standard that could be adopted must meet the Garner and Graham requirements. It is important to note that some jurisdictions (such as Alaska) do not allow the use of deadly force against a "fleeing felon" as defined by Garner.
An interesting question that arises is whether today, or in the foreseeable future, the United States Supreme Court would uphold the "fleeing felon" standard as an "objectively reasonable" seizure under Graham? If Graham is the test for ALL law enforcement use of force (deadly or non- deadly), then today would the U.S. Supreme Court uphold the use of deadly force (against a fleeing felon) under Garner "objectively reasonable" under Graham?
If the Commission on Accreditation for Law Enforcement Agencies (CALEA), many law enforcement agencies, and many law enforcement experts are stating that deadly force can only be "reasonably" used in deadly force confrontations, in defense of life or under the deadly-force-defense standard, then the use of deadly force (against a fleeing felon)) under Garner may be held to be unreasonable by future appellate courts. Additionally, with some law enforcement agencies and certain individual experts promulgating the "preservation of life" standard as the only reasonable standard, then the use of deadly force against a fleeing felon under Garner is definitely not a "reasonable" use of force.
A slightly higher standard (than the Garner "fleeing felon standard") is the Model Penal Code Standard(6). The Model Penal Code Standard provides, in relevant part, that a law enforcement officer may use deadly force against an individual, in the course of an arrest, if the officer believes that: (1) the arrest is for a felony; (2) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized as a peace officer; (3) the officer believes that the force employed creates no substantial risk of injury to innocent persons; AND (4) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force, or there is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.
The next, gradually becoming more restrictive, standard is the "Deadly-Force- Defense Standard." Under the "Deadly-Force-Defense Standard" a law enforcement officer may intentionally use deadly force against an individual only if the officer objectively reasonably believes that such force is necessary to prevent the individual from inflicting imminent death or great bodily harm on the officer or others. The "deadly-force-defense standard" is the standard that most closely approximates most self-defense statutes.
Moving up the restrictiveness ladder, the next standard is the "defense of life standard." Often called the "CALEA(7) defense of life standard," the standard requires that, "an officer may use deadly force only when the officer reasonably believes that the action is in defense of human life, including the officer's own life, or in defense of any person in immediate danger of serious physical injury."(8) CALEA expressly prohibits the use of deadly force under the Garner "fleeing felon standard" and the Model Penal Code Standard.(9)
The CALEA "defense of life standard" contains a glaring ambiguity. The standard states that, "an officer may use deadly force only when the officer reasonably believes that the action is in defense of human life, including the officer's own life," and then the standard goes on to say that an officer can also use deadly force "in defense of any person in immediate danger of serious physical injury." The ambiguity arises in that the standard could be construed to mean that an officer can only use deadly force if the officer's life is in jeopardy and not if the officer is in immediate danger of serious physical harm. However, the officer can use deadly force in defense of "any person" in immediate danger of serious physical harm. So the question becomes, is the officer included in the term "any person" under the language of the standard? If the officer is included under "any person" then why is the officer delineated earlier in the standard, where the standard says "including the officer's own life?" If the officer is included in the term "any person" then this standard is identical to the "deadly force defense standard."
The most restrictive (intentionally used) deadly-force standard is the "preservation of life standard" as adopted by the Dallas (Texas) Police Department (among others). The "preservation of life standard" states that, "[r]egardless of the nature of the crime or the justification for firing at a suspect, officers must remember that their basic responsibility is to protect life. Officers shall not fire under conditions that would unnecessarily subject bystanders or hostages to death or possible injury, except to preserve life or to prevent serious bodily injury. Deadly force is an act of last resort and will be used only when other reasonable alternatives are impracticable or fail.(10)" [Emphasis added.] Further, the "preservation of life standard" requires that, "[o]fficers will plan ahead and consider alternatives which will reduce the possibility of needing to use deadly force(11)." [Emphasis added.]
While the "preservation of life standard" is the most restrictive policy that is (usually) intentionally promulgated, there are many policies that place even more restrictive use-of-deadly-force standards on officers. Some agencies, such as the Los Angeles Police Department, state that officers should use only the "minimum force that is necessary."(12) Other policies state that officers will exhaust all alternatives before resorting to deadly force. Many officers might think that these more restrictive use-of-deadly-force standards may not come back to haunt them after a use-of-force incident. However, if you watched the trial of the Los Angeles Police Officers who were accused of using excessive force on Rodney King, you may have noticed that the prosecutor accused Officer Powell of violating departmental policy because even if Officer Powell's use of force was "reasonable", it was still in violation of departmental policy because it was not the "minimum force that [was] necessary."
So the question becomes, what use-of-deadly-force policy should you adopt? That decision is yours and should only be made after very careful consideration. The most important point is to adopt ONLY ONE standard. Many policies improperly adopt more than one standard, and then expect the officers to be able to decipher which standard they will be held accountable to for a given incident. Remember: THERE IS NO SUCH THING AS A PERFECT POLICY. Having said this, lets look at some potentially problematic and confusing areas which we found in the use-of-deadly-force sections of the 1991 Los Angeles Police Department Policy. The following is for discussion purposes only and should not be interpreted as a criticism of the LAPD.
LAPD: Several Standards:
The LAPD Policy Manual Contains the Following Use-of-Deadly Force- Standards:
Using these use-of-deadly-force "standards", answer the following hypothetical. You are dispatched to an armed robbery in progress of a liquor store. Upon your arrival you see the suspect (a young looking minority male) shoot into the store in the direction of some people, you hear screams from inside the liquor store, the suspect then turns and runs in the general direction of a couple of on-lookers. You are faced with a tense, uncertain, and rapidly evolving deadly-force confrontation. Governed by the LAPD Policy, make a quick, competent decision within policy? Remember, you may be able to use "reasonable force" in shooting the "fleeing felon", if the fleeing felon's "escape presents a substantial risk of death or serious bodily injury to others," as long as you "exhaust all reasonable alternatives", while you use "the minimum amount of force necessary", as long as you "utilize extreme caution" in dealing with the possible juvenile. As you can see your decision will be difficult to say the least.
Now let's add one more quotation from the LAPD Policy Manual: "This policy is not intended to create doubt in the mind of an officer at a moment when action is critical and there is little time for meditation or reflection. It provides basic guidelines governing the use of firearms so that officers can be confident in exercising judgment as to the use of deadly force."(23) While only using the LAPD policy for an example as you can see what management appears to be saying in policy seems to be inconsistent with practice.
When drafting and adopting a deadly-force policy make sure only one standard is used, and that it is consistent in its application. Policies must guide officers, reasonably limit their discretion in the field, and provide a basis for fair and consistent discipline. But don't stop with the mere writing of a policy and then issuing it to officers.
Be sure to give your officers the guidance, training, and supervision they need to allow them to make that decision under the harsh realities of the deadly-force confrontation. After all, making deadly-force decisions is a core task of the officer's duties.(24)