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District Attorney

                      
Orange County Protocol for Law Enforcement Response to Officer-Citizen Deadly-Force Encounters

In an effort to provide more predictable, uniform, and transparent responses to officer-involved deadly-force incidents, the District Attorney’s Office, in conjunction with every local police agency in the County, the Orange County Sheriff, and the New York State Police, has developed a uniform procedure for handling those incidents. For purposes of the protocol an “involved agency” means a police agency whose member has used deadly physical force resulting in the death or serious injury to a suspect or bystander. That procedure, in general, requires:

1. Notification: The involved agency must notify the District Attorney’s Office, the State Police, and, if appropriate, the Orange County Medical Examiner, immediately after the incident occurs. The involved agency will also be responsible for maintaining the integrity of the scene and of the investigation until relieved by the State Police.

2. Investigation: The District Attorney’s Office will be the lead investigative agency, with investigative support and on-the-scene forensics to be provided by the State Police. The District Attorney’s Office will consult with the Chief of the involved agency, including the Sheriff, if the case involves Sheriff’s personnel. Only at the request of the District Attorney’s Office will the involved agency provide investigative support. The involved agency will be responsible for conducting any separate administrative investigation into whether the personnel involved violated departmental policy during the incident. The District Attorney-State Police investigation will take precedence over any such administrative investigation.

3. Public Information: The District Attorney, the State Police, and the head of the involved agency will coordinate the release of information to the press and to the public. Efforts will be made to release the most accurate and up-to-date information available within ethical limits, that will not compromise the integrity of the investigation.

Law Enforcement Officers’ Use of Deadly Force, In General

Armed encounters between police and citizens are always tense, uncertain, rapidly-evolving situations, and every decision an officer makes in such an encounter involves a balancing of potential risks and potential benefits.

Law enforcement officers have a duty to protect human life and safety. In addition, they have other duties, including, for example, the duty to arrest people for whom there are valid arrest warrants, and the duty to prevent the escape of violent felons who threaten the community. In some circumstances involving felonies, police officers are legally entitled to use deadly force to make arrests.

Most often a police officer’s use of deadly force occurs in self-defense, in the defense of other officers, or in the defense of citizens. Under the law, a police officer may use deadly force if the officer reasonably believes that the use of deadly physical force is necessary to defend the officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force. That reasonable belief has both a subjective and an objective component. The subjective component requires that the officer actually believe that the use of deadly force is necessary. The objective component requires that a “reasonable” person, under the same of similar circumstances, and having the same or similar training and experience as the officer, would also believe that the use of deadly force is necessary.

In deciding whether to use deadly force, an officer must consider several things in a split second:

  • Whether the aggressor poses an imminent threat of violence to the public, officer, or other police officers.
  • The nature of the threat, the environment, the size and age of the aggressor, the type and number of any weapons, and the potential risk to bystanders.            
  • How many shots to fire, since police officers are trained to shoot until the threat is dissipated.
  • What part of the aggressor’s body to aim for, since officers are trained to aim for the “center mass” of an attacker, the most-likely place where a hit will stop the threat.
  • “Action versus reaction,” which recognizes an officer’s ability to react to a threat will always take longer than an aggressor’s ability to produce the threat.
  • “Sympathetic firing impulse,” which induces an officer to fire along with fellow officers reacting to the same threat.            

The Dynamics of Fatal Police-Citizen Encounters

The purpose of the new protocol, in addition to proving for an impartial, professional, and dispassionate investigation, is to enhance public confidence in the investigative process. It is in everyone’s best interest that public opinion on these incidents be shaped by verified facts, and not influenced by myths, dramatic television, or movies.

We’ve all seen television and movie portrayals of heroic gunplay and knife battles. From the Lone Ranger, to Marshall Matt Dillon, to more modern counterparts, the good guys seldom miss, no matter how overwhelming the odds or how impossible a shot might look. And the hero always disarms the knife-wielding attacker without suffering a scratch.

Unfortunately, fictional portrayals like that don’t accurately reflect real life. We all know that, of course, but Hollywood images are the only experience most of us have with violence involving firearms or other weapons. Hollywood has created expectations that are so interwoven into our culture that we’re hardly aware of them. Yet those expectations color our perception of real-world police encounters.

The material below is intended to provide accurate information about police-involved deadly-force encounters, so that Orange County residents will have a clearer understanding of the law and the psychology bearing on those incidents. Those events have life-changing, and potentially community-changing, impact, so it’s important that all concerned have the benefit of the most accurate information available. Understanding the dynamics of police-involved shootings will help community members understand future shootings and the decisions that law enforcement makes in response to them.

Frequently Asked Questions: Some Issues in Police-Citizen Deadly-Force Encounters

Below are some common issues associated with deadly force encounters involving police.

Time is on the side of the police, right? They are trained for these types of encounters, aren’t they?

In old western movies, people predictably squared up against each other at “high noon” for a “fair gunfight.” And it was always the good guy who was the faster draw. Events like that didn’t happen in real life even in the Old West, and they don’t happen in real life now.
           
In real life, police officers are at a disadvantage in on-the-street encounters with citizens. Officers must confront the behavior of aggressors that they don’t know, and an aggressor’s intent must be inferred from what he’s already done. The aggressor has the advantage of knowing the outcome he intends and the ability to set the pace at which the encounter unfolds. The responding officer usually has the advantage of superior training and resources, but a number of other factors in those encounters contribute to a very challenging dynamic. Those factors include concern for the protection of innocent people, an inability to control the pace of the encounter, the stress associated with balancing potentially lethal choices, and changes in the ability to accurately perceive under stress.

To make the situation for police officers still more challenging, officers in armed encounters are always forced to react to the actions of an aggressor. As a result, the aggressor always has a time advantage, since it always takes longer for an officer to react than it does for the aggressor to act. Therefore, to protect themselves and the people around them, officers must anticipate potential threats and must be prepared to neutralize those threats before the aggressor acts. A responding officer must continuously assess the threat he is facing. If a threat is identified, the officer must decide how to reduce the threat in a way that doesn’t put others at unnecessary risk. That assessment process takes time, during which the aggressor may be moving toward his objective. Officers may have only fractions of a second to decide how to stop an aggressor.

Why didn’t the police just talk the distressed aggressor into submission?

As a society we feel sympathy or concern for those who are mentally impaired or in crisis. We may even wish to intervene to assist them, or to “give them the benefit of the doubt” when they behave erratically. Conditions like that, however, don’t render an aggressor harmless. In fact, influences that make people more volatile and less predictable arguably make them more dangerous. Intoxication or mental impairment may make a person extraordinarily strong or reluctant to communicate or to follow instructions. In some cases, intoxicated aggressors have been insulated from pain to the extent that non-lethal weapons can be ineffective in stopping their aggression. In every case, the law enforcement response must be based upon the actions of the aggressor and the context in which it occurs. Once police are called to respond to a threat, their job is to ensure the public’s safety, their own safety and, if possible, the aggressor’s safety. Crisis intervention will often be attempted and many officers have been trained to slow crisis situations down whenever possible. Of course, those techniques have their limits, and the pace of the encounter and its outcome are ultimately within the control of the aggressor.

The subject only had a knife. Why didn’t the officer just disarm the subject, rather than shooting him?

In movies, it appears easy to take a knife away from an assailant. In reality, disarming such a person is an extraordinarily dangerous tactic that creates an unjustifiably high risk of injury to the involved officer and others around.

An officer’s appropriate response to deadly force is to use force that can immediately stop the aggressor’s ability to inflict injury on other people. A knife or an edged weapon is readily capable of causing death or serious injury. In addition, it takes less time for a person armed with a knife to assault an officer within thirty feet or more, than it takes for the officer to recognize the threat, draw his weapon, and defend himself. Pepper spray and batons are generally not a safe alternative to use against an edged weapon. Depending upon the situation, position and actions of the aggressor, and the presence of other officers providing lethal cover, a TASER might not be a safe option either. In most cases, unless there are mitigating factors, using those would be inappropriate and place citizens and officers in greater jeopardy.

Why not just shoot the gun or knife out of the aggressor’s hand? Why not just shoot to wound the subject?

Hollywood has created another myth, that of the Old West law man or police officer shooting a weapon out of an aggressor’s hand or shooting the aggressor in the arm or leg, and thereby stopping or disarming him. Like all of the Hollywood myths associated with police-citizen encounters, that one doesn’t stand up to scrutiny either.

Officers are not trained to shoot to kill. Instead, they are trained to shoot to stop the aggressor. As a result, their training tells them to aim for the “center mass” – the middle of the largest exposed area on the aggressor – because aiming at that point increases the likelihood of hitting and stopping the aggressor. That’s critical, because the officer is reacting to the stress of a deadly force encounter and both the officer and the aggressor may be moving. The likelihood of hitting a small, rapidly moving target, such as a foot or hand, is very low, because hands and arms can move quickly. An average aggressor can move his hand into a shooting position faster than the average officer can react to pull the trigger. As a result, it would be impossible for an officer to reliably hit a threatening suspect’s forearm or a weapon in a suspect’s hand, even if both the officer and the subject were stationary, which they rarely will be in the heat of such an encounter.

Why didn’t the officer use non-lethal tools, such as bean bag or sponge rounds from a shotgun?

Non-lethal tools, including Extended Range Impact Munitions (bean-bag) or TASERs are available and may be used if the use of less-than-lethal force is appropriate. Non-lethal rounds, however, often don’t incapacitate a subject who is posing a threat. In some cases, the non-lethal rounds only startle, distract, or create minor pain to the subject, and only momentarily stop him. Also, because it is sometimes ineffective at stopping a threat, non-lethal force requires that a second officer still provide lethal cover with a firearm. If non-lethal force is not effective, the officer providing cover will still need to use deadly force.

The suspect was shot in the back. He must have been retreating, right?

The fact that an assailant was shot in the back does not necessarily mean he was running away from the police officer and wasn’t a threat when the officer shot. Although an aggressor might start out presenting a face-to-face threat, in the few seconds it takes for the officer to perceive the threat, decide to shoot, draw his weapon, and pull the trigger, the assailant can partially turn away exposing his back. Furthermore, suspects frequently fire weapons behind them toward others as they run away. Even though a police officer will shoot such a suspect in the back, that doesn’t mean the fleeing suspect wasn’t a threat to the safety of the officer or others. In addition, sometimes an early shot from the officer will incapacitate the assailant, but before the officer can perceive that, he might fire several additional shots. One of those shots might hit the assailant in the back as he falls through the path of bullets the officer fires before perceiving that the assailant’s threat has been neutralized.

Why was the assailant shot so many times? Doesn’t that mean the officer overreacted?

An attacker can be shot many times and continue to attack before his wounds cause him to stop. An aggressor can sustain multiple fatal wounds to the head, torso, and other body parts, but continue to be mobile and lethal for a substantial period of time. The influence of drugs or an altered mental state can make an aggressor less responsive to the immediate effects of being shot, and officers are trained to shoot until the threat is stopped. If they see no reaction, and the threat persists, officers will continue to shoot. With as many as four rounds being fired per second, an aggressor may be struck multiple times before he stops attacking. If more than one officer decides to use lethal force, even more rounds may be fired before the threat is stopped.

Why won’t video from a police camera or a bystander’s camera tell the whole story?

Although videos of police use of force can be helpful, they can’t tell the whole story, because they are a two-dimensional record of a three-dimensional event. They only record from one perspective, and it’s typically not that of the officer. Think of a football game, for example, where officials often play back video from many angles to make a final call. Those calls often remain controversial, even though the officials have the benefit of multiple viewing angles, consultation, and time to guide their decisions. Officers in the midst of an on-the-street encounter have the benefit of none of those things.

Also, video cameras often only record a portion of the event and are limited by technological specifications. Some cameras are triggered to record by motion. Others can distort the action by recording at rates as slow as ten frames per second. So even when they are present, cameras can never tell the whole story from the officer’s perspective.

Video can help determine whether an officer was justified in the use of deadly force. A police officer’s use of force must be judged from the perspective of the officer at the moment deadly force was used, taking into consideration all the information the officer had at the time. To do that properly, all facts known to the officer at the time must be considered, not just what is displayed on a video.

Video Link

The following link is to excerpts of a video prepared by law enforcement authorities in Lane County (Eugene), Oregon, concerning the dynamics of police-involved deadly-force encounters. The excerpts have been used with the permission of the Lane County District Attorney’s Office.