You’re
in pursuit. And you’re irritated. It’s near the end of your shift, and
you were on the way in to the barn, when you spotted a white Jeep blow
through a stop sign. You’re pretty tired, but it went down right in
front of you, and that just won’t do. So you decided to pull one more
stop on this busy night. Of course, the genius behind the wheel of the
Jeep decided that he wasn’t going to cooperate, and the chase was on.
Up
ahead you can see that the unit from the next sector has deployed spike
strips, so you know that, although the pursuit might not necessarily be
ending, at least it’s going to slow down…and that’s good, since traffic
is a little heavy for this nonsense.
The
Jeep hits the spikes, and both front tires quickly go flat. The driver
keeps control, and swerves into a front yard, where he promptly gets
stuck. “Great,” you think, “now we gotta’ wait for a tow truck.”
You
and the officers from the other sector car approach the Jeep on foot,
weapons in the low ready position. When you order the driver out, he
gives you the finger and keeps rocking the Jeep in the mud. Just as
you’re about to reach for the door handle, the Jeep breaks free and
lurches forward, directly at the guys from the sector car. They try to
jump out of the way, but the grass is wet and one goes down. Not
knowing what else to do, you fire three quick rounds at the driver as he
passes. The Jeep swerves away from the downed officer, and hits a
tree. The driver slumps over, dead.
In the
quiet after you shut off the Jeep’s engine, you think, “What was that
new policy the shift commander was talking about yesterday? Something
about not shooting at moving vehicles?”
While
this scenario isn’t played out every day, similar incidents have
occurred in the recent past. Many of these situations have caught the
attention of the national media, and therefore the public. While most
incidents end appropriately, others seem to involve elements that give
rise to significant public, and therefore administrative, concern. In
response to these incidents, many agencies are tightening up their
deadly force policies in haste. Numerous departments are creating new
and restrictive procedures for the use of deadly force against occupants
of motor vehicles.
There
is no known national data regarding the frequency with which officers
shoot at moving vehicles. From what informal data[1]
that we have, and depending upon the jurisdiction, such shootings may
account for as many as 8% of police deadly force incidents.
It’s
also difficult to locate data regarding the number of officers struck by
vehicles. We do know that 143 officers died after being struck by
vehicles during the ten year period from 1995 to 2004. While this
figure represents only 8.7% of the overall officers killed figure, 18%
of law enforcement officers “accidentally” killed during the same period
died from injuries they suffered after being struck by a vehicle. And,
while most of these undoubtedly were accidental, at least some
are likely to have been intentional, or as the result of carelessness or
recklessness on the part of suspects.
In
fact, every year there are a number of high profile incidents involving
officers shooting at vehicles that they report were trying to run them
down, usually during a pursuit or an escape attempt. Incidentally, it’s
worth noting that the kinetic energy of an oncoming vehicle isn’t always
what kills police officers. Getting pinned between an oncoming car and a
fixed object, or simply being crushed, dragged or run over by a moving
vehicle can also prove fatal.
The
Two Second Rule
There
is a common assumption that officers can simply step out of the path of
an oncoming automobile. While that might sometimes be true, determining
the validity of that assumption requires a case-by-case examination of
all relevant facts. Some items to be considered would include the
distance between the officer and the oncoming vehicle, the officer’s
exact location in relation to the vehicle, the velocity of the oncoming
vehicle, the vehicle’s acceleration potential and closing rate, and
factor’s influencing the officer’s ability to exit the “fatal funnel”
projected by the vehicle, such as slippery footing. We should also ask
whether the officer was injured, fatigued or disoriented from preceding
events to the extent that his or her abilities to react effectively were
diminished.
Published 0-60 mph acceleration rates are largely irrelevant in many
shooting scenarios. However, vehicle acceleration rates over a 20 foot
distance – from a standing start – are relevant, as that is generally
the distance within which many officers are standing when attacked by
drivers of moving vehicles. In reviewing published data[2],
it appears that virtually any vehicle on the road is capable of
accelerating fast enough to cover 20 feet in two seconds. Setting the
speed/lethality issue aside for a moment, the implications relative to
officer reaction time are obvious.
Typically, what we see in many of these scenarios, by virtue of distance
and vehicle speed, is that there are about 2 seconds or less to react
once the vehicle has initiated movement toward the officer. This “two
second” rule of thumb impacts everything from the officer’s ability to
move out of harm’s way to whether his or her later shots are likely to
strike the suspect’s vehicle at a “questionable” angle.
The
“Revenge Shot” Misconception
Another commonly held, erroneous perception of incidents in which
officers fire at moving vehicles is the so-called “revenge shot.” This
phenomenon generally is an outgrowth of a rapidly evolving deadly
encounter in which officers tend to fire multiple rounds in rapid
succession. Occasionally, one or more of the final rounds impacts the
side or rear of the moving vehicle. And, they are sometimes the rounds
that inflict death or serious injury to the driver of the vehicle.
District Attorneys, the media and the public tend to view such events
with skepticism. Since there hasn’t been much research into this
phenomenon, the presumption of innocence tends to deteriorate into the
belief that the officer’s final shots were punitive in nature. This
perception seems to have metastasized to the point where many police
administrators have also been influenced by it.
While
much has been written about officer reaction times in deadly force
encounters, not as much has been done regarding the issue of deadly
force against moving vehicles. Bill Lewinski’s Tempe Study[3]
offers insights that literally scream for attention in this regard.
Previous literature has suggested that stop-reaction time – the time it
takes for someone actively engaged in an action to react to a new
stimulus – is approximately one second. Bringing sophisticated
technology to bear, Dr. Lewinski’s research suggests that a
multi-tasking officer might require as much as 7/10 of a second to
process a “stop stimulus” when firing during a simple multi-task
sequence. Is running away from the path of an oncoming car an example of
multi-tasking? Most would agree that it would be a strenuous, chaotic
and stressful one at that. How will reaction times influence the final
shots fired? Let’s combine some facts already established and a few
speculative and/or hypothetical concepts with the firing potential of
most semi-automatic pistols.
The
Tempe Study determined that a Glock (G17) with a 10 lb. trigger
facilitated shots being fired at intervals of about 0.25 seconds. That
has confirmed our own anecdotal observations with a shooting timer, that
an officer can fairly typically fire 4 shots per second from a 9mm Glock
17. Combine what we know with a few observed characteristics of
incidents involving officers shooting at moving vehicles. If an officer
finds himself 20 feet in front of an oncoming vehicle that is merely
closing at a rate of 10 mph (14.6 fps) that vehicle will reach the point
where he was standing in about 1.37 seconds. If the vehicle is closing
at 20mph, it’s moving at 29.2 fps and will reach the officer’s original
position in 0.68 seconds.
If the
officer is faced with the prospect of reacting to the impending threat
with his/her handgun holstered, it will typically take 1.78 to 2.00
seconds[4]
to draw and fire one round. If the officer has been trained to fire
strings of shots in rapid succession as long as a threat is perceived as
being persistent, it’s easy to envision how and why everything after the
first shot fired might result in non-frontal strikes to the oncoming
vehicle. Even if the officer initiated firing with his/her gun drawn,
the reaction time[5]
to the first sighted shot fired (.54 seconds) would likely lead to the
third or fourth shot fired resulting in non-frontal hits to the vehicle,
depending upon its closing speed.
Use of
Force Constitutional Standards
There
are two United States Supreme Court cases that set forth the basic
standards for use of force while making a seizure of a free person:
Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490
U.S. 386 (1989). The first of these establishes the standard for
the use of deadly force, while the second provides direction for
assessing the reasonableness of all uses of force by an officer, up to
and including deadly force. Both Garner and Graham are
Fourth Amendment cases, in that they set standards for the use of force
in making a detention, arrest, or other seizure of a free person which
the U.S. Supreme Court has stated is properly analyzed under the Fourth
Amendment. The standard is one of “objective reasonableness.” Put
plainly, objective reasonableness means that which another officer is
likely to have done under similar circumstances, without regard to
underlying prejudice, bias or motivation.
In
Garner, the Supreme Court said, in essence, that deadly force is
only reasonable (1) when a person is an imminent threat of death or
serious bodily harm, or (2) against a fleeing felon when the officer has
probable cause to believe that the person has committed a life
threatening felony, and other safe and available means of stopping the
individual’s flight have been exhausted, provided that a warning has
been given (if safe and feasible to do so). To directly quote the Court
in Garner:
“Where
the officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to others, it
is not constitutionally unreasonable to prevent escape by using deadly
force. Thus, if the suspect threatens the officer with a weapon or there
is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly
force may be used if necessary to prevent escape, and if, where
feasible, some warning has been given.”[6]
It
goes without saying that deadly force is also appropriate to prevent the
“infliction or threatened infliction of serious physical harm” mentioned
by the Court. That’s called self defense, and as long as an officer
reasonably believes that his or her safety or the safety of another
person is at serious risk, deadly force is probably justified.
By the
way, the U.S. Supreme Court and the federal circuits generally rely upon
the definition of deadly force set forth in the Model Penal Code, being,
“…force that the actor uses with the purpose of causing or that he knows
to create a substantial risk of causing death or serious bodily injury.”[7]
In
Graham, the Court stated that an officer’s seizure must be examined
within the totality of the circumstances as reasonably perceived by the
officer. The Graham Court listed four factors against which an
officer’s actions must be measured to determine whether or not he or she
acted reasonably in using force. Those four factors are:
·
The
imminent threat of serious physical harm to the officer or others;
·
The
degree to which the situation is tense, uncertain and rapidly evolving;
·
The
nature of the crime at issue;
·
Whether the subject is resisting arrest or attempting to evade arrest by
flight.
While
the Graham Court did not prioritize these factors, subsequent
federal case law has strongly indicated that the most important factor
is whether or not the officer or others are faced with the imminent
threat of harm, then whether the suspect is actively resisting arrest,
followed closely by the degree to which the situation is tense,
uncertain and rapidly evolving.
It’s
worth noting that “imminent” does not necessarily mean “immediate”. A
threat can be imminent, as in “about to happen”, while not being
immediate, as in “about to happen in the next instant”. An officer’s
analysis of whether or not a threat is “sufficiently imminent” should be
based on his or her reasonable perception of the totality of the
circumstances surrounding the need for the use of force. An example
might be a suicide bomber that an officer can see is wired with
explosives. Depending on the bomber’s reaction when challenged, an
officer might reasonably use deadly force if he or she reasonably
believes that the bomber’s actions constitute threatened infliction of
serious physical harm.
In
Graham, the Court also took pains to stipulate that an officer’s
actions must be evaluated from the perspective of a reasonable officer
on the scene. To quote the Court:
“The
"reasonableness" of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.…..The calculus of reasonableness must embody
allowance for the fact that police officers 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.[8]
So
what are we left with? Use of force in making a seizure, including
deadly force, must be objectively reasonable under the Fourth
Amendment. Whether or not an officer acted reasonably in using force
will be measured against the degree of imminence of the threat he or she
faced, and how tense, uncertain and rapidly evolving the circumstances
were. Based upon the totality of the circumstances as perceived by the
officer while making a split-second judgment regarding how much force to
use (or, indeed, whether to use any force at all), he or she is
justified in using whatever force is reasonable, up to and including
deadly force, to prevent the infliction of serious physical harm or
death upon themselves or other persons. When feasible to do so, a
warning must be given prior to the use of deadly force.
Note
that nothing previously stated limits the physical circumstances in
which an officer can use force, or the level of force that can be used.
That limitation is contingent upon the officer’s reasonable perception
of danger based on the totality of the circumstances in which they find
themselves. Whether officers are dealing with an individual on foot, on
a bicycle, riding a motorcycle, or riding in a vehicle, the standard
remains the same.
Finally, there is a growing body of case law regarding the issues
surrounding the use of force against persons in a motor vehicle. While
many of these cases view specific issues narrowly, taken together they
indicate a clear trend of judicial concern with current law enforcement
use of force practices. Trainers, administrators and officers would do
well to consult with departmental legal advisors and risk managers
regarding policy development and training programs in this area.
Tactical and Training Implications
Naturally, the training implications outlined in this article are almost
all tactical in nature. Many are obvious and some are not.
Officers routinely attempt to gauge subject behavioral cues to project
probable risk levels in a given scenario. However, when dealing with a
person or persons within an automobile, some threat cues are masked by
the metal and tinted glass of the car. Common assumptions made can have
lethal ramifications. Someone might seem compliant, through overt
gestures, but are they?
In
felony stops, the keys that you commanded to be taken out of the
ignition and tossed from the car – how could you know for sure that
another set of keys weren’t used, or that a spare ignition key isn’t
immediately available?
If
dealing with someone who is visibly agitated and/or exhibiting
irrational behavior, one should obviously expect the unexpected.
However, there may be issues not readily identified that may elicit a
dangerous response from someone who seems calm and rational. Is the
subject on probation or parole? Are there outstanding warrants for
his/her arrest? Are there illegal weapons or narcotics in the vehicle?
There could be any number of sight-unseen reasons why a person might
resort to using his/her vehicle in a threatening manner, which is why
vigilance and precautionary measures are warranted.
Officers can’t always position themselves where they might achieve
maximum tactical advantage. There may be environmental constraints that
dictate, to some degree, what they can and cannot do. As much as
possible, officers should avoid placing themselves in proximity to the
front or rear of a vehicle with an engine that is running. When in close
proximity (ten feet or less) to a vehicle, even a ten degree offset from
that vehicle makes it significantly less likely that the vehicle could
be accelerated and turned abruptly enough to strike an officer directly.
Such an angle of offset might even tend to discourage a vehicular
attack. If an officer is parallel with or behind a vehicle that begins
moving away unexpectedly, shooting the driver/vehicle shouldn’t be
necessary unless the officer believes someone else is in the immediate
path of that vehicle.
Whenever possible, an officer should attempt to place substantial
physical barriers between him/her self and a vehicle of suspected risk.
Trees of substantive size, utility poles, concrete structures and other
vehicles are often readily available to serve this purpose. They might
also serve double-duty as cover from felonious assault with a firearm
that could emanate from the suspect vehicle.
Under
no circumstances should officers intentionally place themselves directly
in front of or behind a vehicle with a noncompliant or irrational – or
condition unknown – person at the helm. Unfortunately, this does happen,
sometimes resulting in the officer using the elevated risk that he/she
created as justification for the use of deadly force when the vehicle
lurches toward them.
In
cases where an officer reasonably believes there is no recourse but to
shoot at a moving vehicle, debate often centers on whether an officer
should fire with intent to disable the vehicle or the driver. There
shouldn’t be any debate on this matter, since it is far more realistic
to neutralize the driver than it is to neutralize the car. Yes, the car
might be an “unguided missile,” as many contend, if the driver is
killed. However, if the vehicle is just beginning to accelerate, it
shouldn’t proceed too far after the driver is disabled. Vehicles are
often driven for miles after they’ve had their tires or radiators
damaged. If there was justification enough to pull the trigger, there is
justification enough to shoot the driver.
Policy Considerations
Because of the potential for harm to come to the driver of a motor
vehicle, any use of force directed at the vehicle is subject to the same
standard as force directed at a person. However, there are some special
issues to be considered when setting policy for the use of deadly force
against a person or persons riding in a motor vehicle.
First,
it’s important to remember that we are talking about deadly force, not
just use of firearms. As previously discussed, the objective
reasonableness standard applies to the use of force in making an arrest,
regardless of the instrumentality. In choosing to utilize deadly force
to stop a threat being presented by the occupants of a vehicle, officers
might very well consider the use of firearms. However, they might also
consider intentional contact with another motor vehicle – not always
presumed to rise to the level of deadly force, based upon case law in
the federal circuits – or perhaps some other unforeseen means by which
to deliver the level of force they deem appropriate and reasonable under
the totality of the circumstances.
Use of
firearms to stop a moving vehicle is generally not recommended, for a
host of reasons. Not the least of these is that it’s difficult to hit a
moving target under the circumstances we are considering, those being an
emergency situation where officers have little time to react, and are
likely to be moving fast themselves in an effort to avoid being hit by
the vehicle.
Additionally, most hits to the vehicle itself are unlikely to stop the
vehicle’s motion, especially hits with handgun rounds. Even a hit to a
tire would only cause the vehicle to be more difficult to control, and
to possibly slow down as the tire goes flat.
It is
possible, however, to imagine scenarios wherein a driver engaged in a
vehicular attack upon an officer sees an officer either preparing to
fire, or actually firing at his vehicle, and because of his fear of
being shot, steers his vehicle away from the officer. In these
situations the act of shooting at the vehicle didn’t stop its progress,
but caused the driver to veer away on a different path, thus reducing
the danger to the officer. Of course, whether or not deadly force in
these circumstances is justified is based on the totality of the
circumstances facing the officer.
On the
other hand, a hit to the driver of the vehicle may, in fact,
incapacitate or kill him or her, but that offers no assurance that the
vehicle will stop or even deviate from its path, especially in the short
term. And, of course, if the driver is incapacitated, the vehicle
becomes a “pilotless” craft. If the vehicle is traveling at a high rate
of speed, this presents a significant hazard to the public. However, in
the situations that we are considering, where typically a driver begins
from a stopped position, and attempts to drive toward an officer that is
within one or two car lengths, the vehicle’s speed is likely to be slow
enough to mitigate this risk.
Finally there is the question of responsibility for the officer’s
shots. When an officer reacts to a threat coming from a moving vehicle
by shooting at the vehicle or driver, his or her attention is likely to
be focused upon the vehicle itself. It’s possible that an officer might
not be as aware of the background of their target as they normally would
be. This scenario might give rise to an officer missing the vehicle and
striking whatever is behind it, including other officers or civilians
that may be in the area.
These
things having been said, it’s clear that the hazards presented by
shooting at a moving vehicle may be significant, while the likelihood of
success is questionable. However, if an officer is relatively close to
the vehicle, and has enough time to react, then the risks are reduced.
And, if the officer or another person is under immediate threat of
serious injury due to the actions of the driver, then shooting at the
vehicle may be warranted.
In a
situation where an officer is suddenly and unexpectedly attacked by a
subject operating a motor vehicle, an officer who decides to use force
must adhere to the same objective reasonableness standard that would be
applied were the individual outside of his or her vehicle, and
commencing a non-motorized attack. If, in the officer’s judgment, the
criteria set forth in Tennessee v. Garner and Graham v. Connor
are met, then the officer should use whatever level of force he or she
deems to be reasonable to protect themselves or other persons in the
area.
When
outlining a policy/procedural guideline for officers regarding this
issue, administrators should address the following:
·
Officers should not be absolutely forbidden to use deadly force –
including firearms – against the occupants of a moving vehicle;
·
The
same objective reasonableness use of force standard applies when using
force against a person in a motor vehicle;
·
Shooting at a moving vehicle is essentially the same as shooting at the
occupants; if firearms are to be used, then deadly force must be
justified;
·
Officers should weigh the possibility of failure against the likelihood
of success in the given situation in which they find themselves;
·
Officers should carefully evaluate the environment within which they are
to use force, to determine if the likelihood of unintentional injuries
or damage is unacceptable. Special attention should be paid to the
potential for officers and civilians to be injured in a crossfire;
·
Officer’s should make every reasonable effort to avoid placing
themselves in harm’s way, or in a position in which they could be
attacked by a person in a motor vehicle;
·
Officers should be mindful that, while use of force – and even deadly
force – may be reasonable to prevent the escape of a violent fleeing
felon, the heightened risk associated with using firearms against a
moving vehicle, coupled with the lower probability of success, indicates
that they should limit their use of firearms in these cases to those
times when someone is in imminent peril;
·
While
a moving motor vehicle is one option with which a suspect may attack an
officer, it’s also possible that the officer will be attacked with other
weapons. When shots are fired from a moving vehicle, the risk of
serious injury to officers and civilians rises dramatically, and greater
consideration may be given to the use of firearms in response.
Conclusion
The
practice of shooting at moving vehicle has long been controversial in
law enforcement, but due to some recent high profile cases, increased
scrutiny by the public and the media are driving a re-examination of
operational procedures by many agencies. Much consideration is being
given to outlawing the practice altogether, regardless of the
necessity. This, in effect, creates a higher standard than the law
requires. Deadly force is deadly force, and while secondary
considerations such as outlined here may be important, the true issue is
whether or not an officer’s use of deadly force against a person in a
moving motor vehicle is objectively reasonable, as required by law.
As
with any use of force, officers may be well advised to attempt to find
less drastic alternatives, if only for the fact that society generally
prefers a peaceful resolution to conflict. However, when officers
determine that force is necessary, after reasonable consideration of the
totality of the circumstances, they should be allowed to utilize
whatever means they believe are necessary to protect themselves and
others from the actions of an aggressive individual, whether the
attacker is in a vehicle or not.
[1] Khanna, H. and Olsen, L., “1 In 3 Police
Shootings Involve Unarmed People”, Houston Chronicle, July 25,
2004
[2] http://www.mfes.com/accel.html
[3] Lewinski, B., Hudson, B. “Time to Start
Shooting? Time to Stop Shooting? The Tempe Study,” The Police
Marksman, Sept/Oct 2003
[4] Lewinski, Bill, “Biomechanics of Lethal
Force Encounters – Officer Movements,” The Police Marksman,
Nov/Dec 2002
[6] Tennessee v. Garner, 471 U.S. 1, 1985
[7] Model Penal Code, §3.11(2) (1962)
[8] Graham v. Connor, 490 U.S. 386, 1989
©2004 The Police Policy Studies Council. All rights reserved.
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