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How the law allows for the use of deadly force on unarmed suspects

Cops have to make split-second decisions in situations that are tense, uncertain and rapidly evolving

In recent years, we’ve heard a lot about law enforcement officers shooting unarmed suspects. The inference and resulting public perception is that this is both unethical and illegal. But is it really? What does the law say about using deadly force on unarmed suspects?

Restatement of the law
While the actual wording may vary from state-to-state, the law provides that deadly force may be used to defend yourself or a third party from a threat that involves a substantial risk of death, or serious bodily injury or bodily harm. While there is likely some disparity in the definition of serious bodily injury, in Colorado it is defined as a substantial risk of serious permanent disfigurement or protracted loss or impairment of the function of any part or organ of the body, breaks, fractures or burns of the second or third degree.

There is nothing in the law that specifically mandates a person be armed before deadly force can be used. It depends on a totality of the circumstances, and there are a multitude of situations where the use of deadly force on unarmed suspects may be legally permitted.

One common misconception I see is officers believing they have to be in fear for their life to use deadly force. The law, however, provides for using deadly force even to protect one from a substantial risk of serious bodily injury, not just from a fear or risk of death. This section of the law is often overlooked when analyzing an incident where deadly force is used.

We must defend ourselves
I’ve watched too many dash cam videos over the years of officers in serious physical confrontations with unarmed suspects in which officers were being viciously attacked. In many of these videos, the officers either failed to recognize the seriousness of the situation, or they were so paralyzed by fear of backlash from the media or even their own agency that they didn’t appropriately respond.

I have previously written about the hesitation factor in which officers hesitate to use force, even when it is desperately needed and legally justified, due to concerns over having a complaint or lawsuit filed for excessive force. This is skewed logic because in order to have a complaint filed against an officer, the officer has to survive and be alive. While admittedly an old cliché, the adage better to be tried by twelve than carried by six still applies today.

In one particular video, an officer was being attacked and was taking numerous punches to the head and face. Rather than using appropriate self-defense measures, the officer covered his head with his arms and tried to grapple with the suspect. This is not the time for a timid response. I would suggest that taking repeated heavy blows to the head is a substantial risk of receiving serious bodily injury. It doesn’t take a lot to break facial or orbital bones (which would constitute serious bodily injury) and we are not serving to be human punching bags!.

I am not necessarily advocating an immediate use of deadly force in this situation, although that may have been a proper response, depending on the circumstances. There needs to be some counter measure response from an officer faced with these circumstances, especially if alone, as this officer was at the time. Elbow and palm heel strikes, punches, kicks or use of intermediate weapons would certainly be appropriate, and if ineffective or not feasible, deadly force could be legally justified.

The list of examples is probably endless, but some things to consider are listed below:

• A disparity in the size of the officer to the suspect (suspect being larger or stronger).
• Evidence of martial arts training of the suspect(s).
• Being kicked while on the ground, head butts, attempts to choke you, attempts to disarm you or being out-numbered.
• Exhaustion or fatigue by the officer during protracted physical battles can also come into play.

Graham v. Connor
All use of force by law enforcement must comply with the legal standard set forth in the landmark U.S. Supreme Court decision Graham v. Connor. This requires that the force be objectively reasonable under a totality of the circumstances known to the officer at the time. It must be viewed from the perspective of a reasonable officer on the scene and should not be analyzed with the perspective of perfect vision 20/20 hindsight.

Allowances must be made that officers are required to make split-second decisions in situations that are tense, uncertain and rapidly evolving. This means our decisions need not be textbook perfect, but objectively reasonable under the circumstances. This aspect is also overlooked at times, especially by some police “experts” who try to fault the officer if some arbitrary best practice or model policy wasn’t followed.

Some of the recent controversial incidents did not truly involve unarmed suspects. The Ferguson incident is a prime example. We can never forget that every call we handle or contact we make involves a gun - our own. In the case of Michael Brown, the investigation corroborated the officer’s account, in that Mr. Brown was attacking him and trying to disarm him of his handgun. At the point a suspect grabs for your gun, they are no longer unarmed.

Trying to disarm a peace officer is not only a felony offense in most jurisdictions, but it is a serious threat of being killed or seriously injured. You don’t have to wait until you are disarmed to take appropriate action to defend yourself. It is reasonable to assume that if they are bold enough to try and disarm you, they are likely intending to use that firearm against you. Using deadly force at that point would be a reasonable response.

Media and public perception
Some media and other organizations will rarely be supportive when an officer uses deadly force on an unarmed suspect, even if the circumstances are such that it was legally justified. This should not be a consideration when you are in the midst of a deadly force encounter.There are segments of our society that are anti-cop and no circumstances will satisfy them, even if the suspect was armed. As defenders of our communities, it is imperative that we win in any confrontation. We cannot protect anyone if we are dead or incapacitated from injury. The law certainly recognizes this concept and provides for using reasonable force, to include deadly force when appropriate.

Justifying your use of force
Obviously with any use of force (or more accurately, a response to resistance) we need to be able to articulate why we took the actions that we did. Knowing the law is a large component of this, so make sure you know the law in your jurisdiction. Every officer needs to be intimately familiar with the concepts of Graham v. Connor, as outlined above, and be able to correlate their actions to that case law. Knowledge truly is power, so ensuring you have a clear understanding of your state statutes pertaining to use of force is crucial.

The law enforcement profession has come under unprecedented attack on many fronts and even from within our own ranks in some cases. The suggestion that police brutality is rampant is lacking in factual information, but we do have a serious image problem to tackle, thanks to both the mainstream media and social media. However, promoting guidelines that advocate a legal standard more restrictive than what the law provides is going down a slippery slope. I am opposed to these type of proposals. Policies that require using the minimum amount of force necessary are foolish and contrary to the law.

The bottom line is, as officers, we need to be knowledgeable about the law and our department polices, especially on use of force, as we are under the microscope of public scrutiny like no other time in my career. We also have to understand that irrespective of media and public perception, we have an obligation to ourselves, our families, our agencies and the communities we serve to survive deadly force encounters criminally, civilly, administratively and psychologically

Sergeant Kevin Sailor is a 36-year veteran of the Westminster (Colorado) Police Department and has served assignments in Patrol, Traffic and Investigations. He also served four years in the U.S. Air Force as a Law Enforcement Specialist. Sergeant Sailor is a Senior Master Instructor for TASER International. He has traveled about the country teaching TASER Instructor classes and performing other duties for TASER International. He also is used as a court expert witness for law firms defending police use of the TASER and other use of force.

Contact Kevin Sailor