Notes From DEA Law of Deadly Force Class

A public-spirited reader sent me his notes from the portion of DEA training dealing with the use of deadly force. He tells me that the students would be given certain fact patterns and told to stand up in class and respond with the exact phrases described in the notes to justify a shooting.

LAW OF DEADLY FORCE

XXXXXXXXX – INSTRUCTOR

PRE-CLASS ASSIGNMENT NOTES 

HOSTILE MOVES WITH GUNS

1.      Points what appears to be a gun in your direction

2.      Shoots at you

3.      Reaches for waist

4.      Raises what appears to be a gun in your direction

5.      Turns towards you with what appears to be a gun in his hand

6.      Comes at you with what appears to be a gun

7.      Reaches for a gun

8.      Runs for what appears to be a gun nearby

9.      Reaches for a pocket large enough to conceal a gun

10.  Grabs for your gun

11.  Reaches into a coat

12.  Reaches for his ankle

13.  Reaches under a seat

14.  Reaches into an area not yet cleared, that could conceal a gun

**To shoot at someone to stop an attack, the Officer MUST wait until the suspect makes  a “Hostile Move” (you should see or hear some objective sign)  that gives you P/C to believe an attack is about to occur.

**If you approach a suspect on foot, identify yourself as DEA with your gun visible in hand.  Give a command; if suspect violates the command, courts have upheld that it is justified to shoot to stop the attack.  The 14 items listed above give you (1) P/C he intends to attack (2) P/C he is armed with a gun (3) P/C that you are in “immediate danger”

            HOSTILE MOVES BY VEHCILE

1.      Accelerates at you, as if to hit you

2.      Hits you hard

3.      Drags you alongside

4.      Knocks you onto the hood and keeps going

**Must approach vehicle on foot and ID yourself with your gun visible and give a command.

            HOSTILE MOVES WITHIN VEHICLE

1.      Bends down towards the floor

a.       If you approach on foot with gun visible, ID yourself, and give a command, if the suspect ignores you and bends towards the floor, you have the right to shoot.  You need NOT wait to see what he may be reaching for.

2.      Dives low into the vehicle

·         If you approach on foot with gun visible, ID yourself, and tell the suspect to step out of the vehicle, he complies, but then in violation of your commands, turns back towards the open door and reaches or dives down towards the floor of the vehicle, you have the right to begin shooting IMMEDIATELY in self defense (due to the perception and reaction times).

3.      Turns toward you with a gun in hand

·         If you have probable cause to believe an occupant of a vehicle has a gun in hand AND, in violation of your commands, he begins to turn towards you, you may shoot.  You need not wait to confirm that he has a gun, nor do you need to wait until he is fully facing you.

PROHIBITIONS AGAINST SHOOTING – DOJ / DEA DEADLY FORCE POLICY

·        Deadly force may NOT be used SOLELY to prevent the escape of a fleeing suspect

·         Firearms may NOT be fired SOLELY to disable a moving vehicle

·         Warning shots are NOT permitted outside of the prison context

5 CONDITIONS THAT JUSTIFY SHOOTING TO STOP AN ATTACK

·         P/C that the subject intends to attack

·         P/C that the subject has the power to cause death or serious personal injury

·         P/C that there is imminent danger

·         You first give verbal warnings if safe and feasible to do so

·         You balance the risks of hitting others

OTHER IMPORTANT THINGS TO REMEMBER

1.      Perception time – Time it takes from what we see to the time our brains begin to process what we are seeing to our brain so that we are aware of it. The time we are effectively “blind” to what we are seeing (Use .25 sec. average)

2.      Reaction time – Once we recognize we are about to be shot, our muscles do NOT begin to move instantly.  They remain frozen for a  fraction of a second (Use .25 sec. average)

3.      Firing times – time it takes to actually draw your gun, bring it up to the target, bring your finger to the trigger and pull the trigger.  Could be 1-2 seconds in addition to perception and reaction times.

Immediate vs. Imminent Dangers

·         An immediate danger requires an immediate response – i.e. Being shot at

·         An imminent danger slightly broader than immediate – i.e. Shooter stops shooting at you and runs.  This is an imminent danger.

**All immediate dangers fall under imminent dangers, but not always vice versa**

Suspect will not show his hands

·         With gun visible, ID yourself.  Order suspect to show his hands.  If he does not, you may assume he has a gun.  This does not give you justification to shoot him, but it does give you P/C to believe he is armed.

21 Foot Rule

·         When an attacker with a weapon (i.e. Knife) is 21′ away from you, you may argue suspect poses an imminent danger assuming they may attack you.  It may also apply at greater distances, but you must articulate the suspect poses a danger to you at the greater distances.

Everyday Incidents

Not all cops lie. But if perjury is committed at the criminal courthouse, it’s likely committed by someone with a badge and a gun — that is, a law enforcement officer. There’s even a term of art for it among the law enforcement community: “testilying”.

I see three reasons for this.

First, statistically, cops testify a lot more than anyone else. Five times as much? Twenty times? So they get more opportunities to perjure themselves.

Second cops often feel that the end justifies the means. A little lie to the court or the jury is worthwhile if it serves to put some punk in prison where he belongs. (After all, the system is broken, right?)

Third, as PJ points out in his comment here, cops “know who gets prosecuted for criminal acts and who does not”. That is, cops don’t get prosecuted for perjury because their perjury is in the interest of those who have the power to prosecute.

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

Also unfortunately, cops don’t correct or report each other’s misdeeds. (Don’t take my word for it; see Joel Rosenberg’s Thought Experiment [h/t Simple Justice].) So when a cop tells a little white lie, the only way he’s going to get caught is if he gets on the stand and tells the truth, and the DA’s office is, I daresay, never going to prosecute an officer in such straits.

I’m thinking about offering a cash prize for any Houston or Harris County law enforcement officer who has been on the job for more than a year, and can pass a polygraph (administered by ex-DEA agent John Swartz) while saying that he has never failed to report the misconduct of another officer.

What do you guys think? Have I got it wrong? Will my money be at risk?

Uncle Ken?

Tell Me Again Who the Victim of this Particular Crime Is?

Beaumont, Texas police officer fired after an assistant chief finds out that, in the course of investigating of prostitution ring, the officer received oral sex a half-dozen or so times (and maybe “one ‘active coitus’”, according to his lawyer) with the approval of his supervisor and his wife.

In Texas, “I’m a police officer” is not actually a legal defense to most criminal charges. By statute, a cop may possess controlled substances in the course of his work, but he can’t legally solicit sex for money. So Officer Watts shouldn’t be too surprised if he finds himself dumped further into the grease by his former employer.

Bad Cop! No Donut!

Johnson County, Tennessee Sheriff’s Deputy Starling McCloud (on the left, in the khaki uniform and the gay-leather-bar moustache) thinks that it’s a crime for a citizen to take a photograph of a police officer. (This photograph was taken by the arrestee’s 12-year-old daughter after he tossed the offending iPhone to her.)

(H/T Missouri Criminal Defense Lawyer Randy England.)

I foresee a lawsuit in the county’s future; the county will claim that this was an isolated incident and settle for an undisclosed amount.

Officers, You’re Doing a Heck of a Job.

The [edit: Minneapolis,] Minnesota Police Department has given medals to eight officers who participated in the botched raid last December of a family home. They were at the wrong house; the homeowner, there with his wife and six kids and thinking he was being robbed, shot at them, and the police shot back.

Minneapolis police spokesman Sgt. William Palmer said Tuesday the department has acknowledged the raid was a mistake and has apologized to the family. But he said the officers “performed very bravely under gunfire and made smart decisions.”
Minneapolis Police Chief Tim Dolan said that he knew giving the award might get negative attention but that “we’ve never not recognized an officer shot in the line of duty.”
Three officers received shrapnel damage to body armor and their ballistic helmets, Palmer said.

The police said it wasn’t their fault (WCCO) that they went into the wrong house; they blamed the informant. Asked if they would make changes to prevent future mistakes, a police spokesman replied:

“I don’t think it was a mistake on our part, you know, we did
everything correctly. We did everything in good faith, we followed the
search warrant, we did everything correctly. It turns out some of the
information that was given on the front end from the informant, just
wasn’t right.”

Cops routinely take credit for decisions they make based on anonymous information. In fact, in many kilo-plus drug cases the police are concealing the very existence of an anonymous informant by describing the seizure as the result of police work and luck. Even where the police admit that there was an anonymous informant he is, well, anonymous.

How about this: the buck stops with the cops. If the cops trust the wrong informant and make the wrong call, they didn’t do everything right. In fact, they screwed up. And if there ever was a time to “not recognize an officer shot in the line of duty”, it’s when the cops screwed up and put eight innocent people’s lives at risk. Thankfully, nobody was killed. But medals? Sheesh.

(h/t Windy Pundit).
(Also from the Star Tribune: shooting Winnie-the-Pooh.)