On April 23, 2011 at about 10:15 p.m., a Portsmouth Virginia 911 operator took a report of a person banging loudly on a glass door of a residence. The caller did not know the suspect and was concerned he would break through the glass. One can clearly hear him banging on the glass door on the 911 recording. The 911 operator instructed the woman to stay on the line as she dispatched law enforcement officers to the scene. A few minutes later, the suspect was dead, the first responding police officer was under investigation and a long series of administrative, criminal and civil investigations began.
In February 2012, Officer Stephen Rankin was cleared by a grand jury that declined to indict him. He was also cleared by the Virginia State Police in 2011. On March 2, 2012, a federal jury in ruled in his favor in a civil suit filed against him by the suspect’s estate. Officer Rankin was cleared, in both the criminal and civil contexts, in approximately 11 months. This is light speed in terms of the law. However, the estate may file an appeal and begin the process of waiting for this process to end; a process that started with a call for help and a split second judgment and decision to shoot in low light conditions.
Over the past year, Officer Rankin, who is still employed with the Portsmouth Police Department, has been subjected to investigations, international criticism based upon the suspect’s status as a foreign-born national, and abusive treatment in the press. His motivations have been scrutinized based upon his social media posts and his actions have been critiqued by masses of untrained people who are ignorant regarding the use of deadly force. In my experience, his life over the past year is unfortunately typical of any law enforcement officer involved in a shooting.
This officer involved shooting (OIS) involved a few facts that required a higher level of analysis. The suspect was unarmed and heavily intoxicated, there were no witnesses to the use of deadly force, there was no video available for review, and the officer fired multiple shots. As if this was not enough, there was a fair amount of emotion to energize the debate of Officer Rankin’s use of deadly force. However, the Fourth Amendment to the United States Constitution and precedent from the United States Supreme Court provide the litmus test to evaluate whether or not the use of force was reasonable, lawful, and justified.
This case presents an excellent opportunity to review the standard for the review of a police officer’s use of deadly force as well as an explanation of how the “inconsistent” facts are misinterpreted and argued in an attempt to paint the officer as a liar.
The use of force to arrest a suspect is analyzed in terms of a Fourth Amendment test of objective reasonableness. Graham v. Connor, 490 U.S. 386 (1989). The personal beliefs of the officer, his social media postings or any other facts are irrelevant. However, the condition and actions of the suspect are factors that bear analysis.
In this case, the suspect was reportedly left in the area by his “friends” because he was intoxicated. His blood alcohol level on autopsy was .28. The officer was called to the scene because the suspect was not only causing a disturbance; he was banging violently on a glass door, and caused the occupant of the house to call 911 for help. When the suspect was first contacted by the officer, he refused commands to show his hands, get on the ground, and otherwise comply. Finally, he rapidly closed the gap between his position and the officer’s while the officer was pointing a firearm at him. These facts were never in dispute!
Two issues were in dispute and these disputes led to the civil trial. Officer Rankin stated the suspect not only refused to stop and show his hands, he also thrust his right hand into the front of his pants as he stared at and charged Officer Rankin. The suspect’s estate alleged that the suspect was shot in the underside or palm side of his right wrist therefore his hand could not have been palm down in his pants. Second, when the backup unit arrived, the suspect’s pants were around his knees and one round struck his boxer shorts but did not penetrate his pants. These facts were the inconsistencies that formed the basis of the estate’s case against Officer Rankin.
It is hard to believe that these facts seemed implausible or incapable of explanation. The medical examiner was unable to determine which shot struck the palm side of the suspect’s right wrist or boxer shorts. Perhaps these were the last shots that followed the suspect’s reaction to being fired upon. Is it inconceivable to believe that he turned his hand after being shot or his pants fell when he stumbled? In fact, the estate’s lawyer argued the suspect may have been holding up his pants with his right hand. That’s correct; they admitted that his hand may have been at his waistband when Officer Rankin fired! In spite of these simple explanations, every critic took pains to twist these facts to one conclusion: the officer was lying.
Finally, the number of shots fired by Officer Rankin also should be subjected to an objective review, but not by counting shell casings. The number of shots fired should be analyzed in terms of whether or not any shots were fired before or after the subject presented an objective threat based upon the reasonable beliefs of the officer. This is a critical point that often leads to erroneous allegations of excessive force. Shots are fired extremely quickly during an OIS.
Even an untrained person can fire quickly. Consider John Hinckley, Jr.’s assassination attempt on President Reagan. He fired six shots in 1.7 seconds and had virtually no firearms training. It is reasonable for a LEO to fire rapid multiple shots when facing a threat. Therefore, the number of shots fired can never form the sole basis of an excessive force allegation.
Consider this quote from Graham v. Connor, 490 U.S. 386 (1989):
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. 490 U.S. at 396 & 397 (emphasis added).
The Justices recognize that LEOs make decisions every day that require them to rely upon their training and employ their best judgment. Further, the United States Supreme Court recently analyzed Graham in the context of the use of force used to apprehend a driver who was putting third parties and LEOs in danger through his actions. The Court again held that Garner was simply an application of the Fourth Amendment’s “reasonableness” test . . . Scott v. Harris, 550 U.S. 372, 382(2007).
There is no magic formula to judge the use of deadly force by a LEO. In my opinion, there never will be. The courts want LEOs to be well trained, knowledgeable about the law and to uphold their oaths of office. When LEOs meet those standards, the law and the citizenry they serve will support them.
Implicit in Graham is a recognition that the suspect is always, to some degree, in control of every interaction with LEOs. He drives the existence of the activity that brings LEOs to the scene, the reactions of the LEOs who arrive on the scene and the level of force deemed objectively reasonable by those LEOs. Also underlying Graham is a realization that no amount of training or written guidelines can prepare LEOs for every situation they face. The final underpinning of this important decision is the fact that the justices of the United States Supreme Court, like those who will review and criticize LEOs like Officer Rankin, will never answer the call for help from strangers and run toward threats while others run away.
If the standard of objective reasonableness has not been met in this case after Officer Rankin was cleared by an independent law enforcement agency, a grand jury, and now a civil jury, our society has no resolution for his critics. I have represented LEOs in six shootings involving unarmed suspects. In each case, the shooting was justified, lawful, and reasonable. That is not just one man’s opinion. Each was cleared by an independent body, be it a judge or grand jury.
LEOs must take comfort in their knowledge that they acted appropriately and returned home at the end of their shift. For those called to serve wearing a badge, there is little else. You knew that yesterday yet you still put on that badge and will do so again tomorrow. That is why you are not alone in the dark on traffic stops and in back alleys at midnight. The public, the law and lawyers like me stand with you. Stay safe.
Lance LoRusso is an attorney, former law enforcement officer, and founder of LoRusso Law Firm, PC in Marietta, Georgia. He is the General Counsel for the Georgia Fraternal Order of Police and author of a blog, www.bluelinelawyer.com. He speaks at many conferences for law enforcement on use of force, responses to critical incident, and other topics of interest to law enforcement. He will soon release a book for law enforcement officers on critical incidents.