It is with the spirit of bringing value to my chosen profession that I make the following points and observations.
The current affairs of policing, as it applies to officer involved shootings tells us two things. One as we discussed in a previous article is that civilian leadership needs to teach respect to their offspring and two that law enforcement personnel needs to take a more proactive approach to training.
While the precursor to most of the police shootings was lack of compliance of the subject, the decision that each law enforcement officer made to deploy and use their weapon urges us that care about the profession to assess the situation.
One of the main potential reasons that law enforcement personnel go to their service weapon in the face of non-compliance is training. Lack of training with all the other tools on the belt is also part of the problem. If the drivers refusing to exit the vehicle were sprayed with OC versus being shot, how would the scenario have been different? Or would the end result be the same?
Any defensive tactics instructor will tell you that you fight how you train.
Most departments engage in what is “called shoot don’t shoot training.” That places the emphasis on the service weapon. More scenario based training is needed in the other areas.
Common definition is a critical starting point. We will define non-compliance and defiance in context.
Non-compliance is the simple act of passive resistance to the lawful commands of the law enforcement officer. Defiance is defined for our purposes as an active resistance that can be danger defiant or deviant defiant.
Danger defiant is that active resistance to the law enforcement officer’s lawful commands which threaten or cause serious harm to the officer or to the public.
Devious defiance is the active resistance to the lawful commands of a law enforcement officer, which in appearance don’t pose a physical threat of harm or potential harm to the officer or the public.
An example of danger defiant can be seen in the most recent case where a law enforcement officer pulls over the vehicle for a tale light out. The officer engages the driver that says that he has a gun in his car and is not going to jail (paraphrase).
The law enforcement officer lawfully commands the driver to get out of his vehicle and the driver reaches under what appears to be clothing in the passenger seat and produces a weapon aiming it at the law enforcement officer’s head.
Another example of danger defiant is the fleeing criminal that beat up a store clerk and when questioned by law enforcement personnel jumped in the driver’s side of the patrol vehicle to attempt to injure the law enforcement officer.
An example of deviant defiance is the most recent traffic stop where the driver of the vehicle was shot after refusing to get out of his car and attempted to flee. This example will only stand as such if the investigation shows that the driver was merely uncooperative and drove off.
Another example of deviant defiance is the subject that fled the vehicle allegedly due to child support issues and was shot in the back by law enforcement.
Whether non-compliant, danger defiant or deviant defiant, no resistance to a lawful command is excusable. However law enforcement personnel must train to better recognize which of the three categories they are facing and what tool is the most recommendable to use.
In addition something that must be considered is that in the United States citizens and residents have the right to resist unlawful arrests.
“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.
“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.
“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).
“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).
Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903 potentially applies to the example of deviant defiance because although the law enforcement officer might have had the right to lawfully command the driver out of their vehicle, with the information that the law enforcement officer had at hand, was doing so at gun point abuse of power?
I am not judging my brothers or trying to Monday morning quarter back them, I am urging the law enforcement community to stand together and reflect.
More scenario based training should be offered as mandatory by departments. I will be the first to sign up as everybody benefits from training.
Everybody makes mistakes and I trust that even those shoots deemed as bad were done by the law enforcement officers in good faith and possible misjudgment of threat assessment.
A lot of emphasis is put on qualifying with the pistol. While that is critical, equal emphasis must be placed on the implementation of the other tools on the belt (ie OC spray). It is no surprise that law enforcement personnel resort to their service weapon before anything else in many cases, because we fight as we train.
All can agree that training costs a lot less than paying out lawsuit settlements. And training will save lives, ours and theirs.
I feel a sense of responsibility to all my family in blue. That all of us can go home the way we went to work.
I am not judging any law enforcement officer involved in a shooting. I am hoping that we as a community can learn from those scenarios and thus minimize our margin of error.
Officer Eric Aguiar, LLB has a passion for fairness and seeks to assist personal, professional, and spiritual growth for LEOs. Eric believes that leaders must foster and motivate law enforcement subordinates and co-workers. Everyone in the profession deserves the opportunity to grow into the role they wish to fulfill. Eric taught legal courses at a North-Atlanta technical college for 7 years before starting his law enforcement career. He currently serves as a police officer in the state of Georgia, seeking to positively influence his professional peers as well as the community. Eric is credentialed in negation by Notre Dame University. He believes that negotiation as a skill is an important leadership asset. His ultimate career goal is to serve as a police chief who focuses on professional growth and team development by cultivating a department culture supporting good morale and uniformity of leadership at all command levels.