Chief Koval's Blog

A Discussion about MPD's Deadly Force Policy

April 28, 2015 12:53 PM

Recently, I was at a meeting where a citizen made an inquiry about MPD's deadly force policy.  Specifically, the question posed was something on the order of "When does your policy of shoot-to-kill take effect?"  It caught me off guard as I have been here since 1983 and the use of this phrase with MPD is foreign to me.  We have no such language in our policy.  (We have thresholds where deadly force may be employed only when certain criteria are present but the language used is "shoot to stop" the threat).  Yet the very asking of the question---certainly not intended to be provocative or inflammatory---pointed to a greater issue.  This individual's context for our deadly force protocol was apparently framed through sources other than our policy.

My take-away from the question is that there is much more to be done in order to better explain our policies, procedures, and some fundamental tenets describing constitutional powers and limitations of the police.  It is my hope that MPD can do more in this regard through our web site and educational initiatives at all age levels.  With greater knowledge and familiarity about what the police can or cannot do, some of the trust issues that surface owing to urban myths or misunderstandings can be resolved through better communication and understanding.

From a policy and procedures perspective, our Code of Conduct and Standard Operating Procedures (SOP's) are currently housed on our web site.  The Code of Conduct contains those items that should not appreciably change over time as they reflect our core values and behavioral expectations.  The SOP's provide direction on how to perform various job functions.  Our SOP's are continually evaluated for potential changes based on legislative action(s), new case law, or as emerging best practice(s) are considered.

In the midst of the much-chronicled discussions about racial disparities and their harmful effects in economic, housing, education, and criminal justice settings, some groups have called for a thorough examination into MPD's policies and procedures.  There is a school of thought that a critical review will yield evidence of unintended racial bias which contributes to the problems of disproportionate impact.

While I do not believe that this call for third party analysis will yield substantive findings of adverse implications, we certainly invite those who want to look first-hand at the materials to do so.  And should there be items that give pause or concern, I will be more than happy to consider those recommendations or suggestions.  MPD is committed to transparency in our operations and the posting of these materials reflects our intent to be open and honest with our constituents.

As there has been much debate about what constitutes MPD's use of deadly force, I have framed the excerpt which gets to the heart of the issue:

DEADLY FORCE AUTHORIZED

The use of deadly force is only authorized when, under any of the following circumstances, an officer reasonably believes a lesser degree of force would be insufficient:

1. In the defense of another person who the officer has reasonable cause to believe is in imminent danger of death or great bodily harm.

2. In defense of oneself, when there is reasonable cause to believe one is in imminent danger of death or great bodily harm.

3. To effect the arrest or prevent the escape of a suspect who the officer has reasonable cause to believe has committed, or attempted to commit, a felony involving the use or threatened use of deadly force, when a high probability exists that the suspect, if not immediately apprehended, may cause death or great bodily harm.

4. To protect one's self or another from an animal which an officer reasonably believes may cause great bodily harm if not immediately controlled, or to end the suffering of an animal gravely injured or diseased after considering public view, safety, and other reasonable dispositions.

VERBAL WARNING

Before using deadly force, officers shall, if reasonably possible, identify themselves and order the suspect to desist from unlawful activity.

DEADLY FORCE IS NEVER AUTHORIZED

Deadly force is never authorized:

1. As a warning shot.

2. From a moving vehicle, unless an officer has reasonable cause to believe that one's self or another is in imminent danger of death or great bodily harm.

3. At a moving vehicle unless an officer has reasonable cause to believe that one's self or another is in imminent danger of death or great bodily harm or Deadly Force Authorized, paragraph 3, regarding certain felons applies.

4. When its use unreasonably risks the lives of innocent bystanders.

While the phrasing may be somewhat different from one agency to another, this is the essence of what is taught throughout the State of Wisconsin.  So whether certification training is offered at an in-house, employer-based, pre-service academy (our Department is in this category), or is a part of the curriculum at any one of several technical colleges throughout Wisconsin, those being instructed in the deployment of deadly force are held to the same basic standards that have been vetted through the Department of Justice/Law Enforcement Standards Board (LESB).  Furthermore, each full-time officer employed in our State must take additional training on an annual basis to remain duly certified and in good standing; MPD has always made a point of incorporating a review of these essential elements as part of our yearly updates and qualifications.  Additionally, this policy is always reviewed and incorporated into SWAT operations prior to commencement of the mission.

(It should be noted that the District Attorney will determine whether there is criminal culpability when an officer has used force which results in the death of someone.  The Department will make a separate, independent determination as to whether there have been any policies or procedures violated as a result of deadly force.)

Whenever there is a police action that results in the loss of life, it is understood and entirely appropriate that everything should be scrutinized, including the use of deadly force policy.  That said, the policy that is on the books should certainly not be more restrictive than Wisconsin's self-defense statutes (State Statue 939.48) nor should it undermine a law enforcement officer's protections under the "privilege" section.  Additionally, as the nature of our work often involves a multi-jurisdictional flavor, (i.e., responding officers from different agencies assisting on the same call), the value of having one, consistent training paradigm for lethal force is essential.

There are some in the community that are calling upon the MPD to adopt a use of deadly force policy that would place MPD officers on a standard that would be unparalleled anywhere in the United States.  Suggestions like mandating non-deadly force in each and every instance prior to being able to access deadly force may appear appropriate at first blush, but such a stance fails to recognize and accommodate the "tense, uncertain, and rapidly-evolving situations in which officers must use force."  (Graham v. Connor, 1989).  Fortunately, the United States Supreme Court has interpreted the U.S. Constitution to provide the profession with a national standard for police use of force, "objective reasonableness."  This means that the reasonableness of an officer's use of force must be judged from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."

In our line of work, officers are not granted any "mulligans" or "do over's" when confronted with a deadly force encounter.  If an officer is faced with a suspect pointing a gun at them from close range, the cop should not be forced to "guess" as to whether the subject is bluffing when he has a gun pointed and it is accompanied with the words, "I am going to kill you," whether the gun is real or a facsimile, or whether the gun is even loaded!  "Suicide by cop" is but one variety of cases that are contended with all too frequently.  A police officer has to make a critical threat assessment in seconds . . .should she be compelled to use a "lesser" degree of force in order to comply with a policy, that places the officer at great peril.  I will never put our officers in that sort of untenable position and those who suggest adopting a standard that places police at even greater risk(s) than what we are already facing should attend a police funeral and explain their rationale to the grieving family and friends.

Thus, rather than debate the merits of a standard that has been the law of the land since l989, the more constructive dialogue(s) center around the possibilities of improved training methods (i.e., "tactical disengagement" and de-escalation techniques), new technologies that may be emerging in the form of less-lethal options, and an expanded review and understanding of people in crisis owing to episodic mental illness breakdowns or individuals under the influence of drugs.  To this end, MPD's Personnel and Training Team is continually addressing topical issues and needs, conducting research and development studies of equipment, and ensuring that officers are given the skills necessary to resolve conflicts without resorting to force. (It is a given, of course, that no amount of training will resonate unless you start with the proposition of hiring a well-educated, well-rounded and diverse workforce that reflects the needs of our community.)

Tragically, the events that we are witnessing on what seems like an almost daily basis, suggests that police encounters are precarious and fraught with peril when it comes to use of force issues with citizens.  Reports tracked by the Department of Justice/Bureau of Justice Statistics reveals a striking disconnect.  The overwhelming majority of police/citizen contacts and interactions are resolved through police presence and professional communication.  The most frequently invoked use of "force" by MPD is the application of handcuffs (which we consider a use of force that should be documented).  One of the myths that has been promulgated by the incessant exposure(s) to officers behaving badly and abusing their use of force authority is that this has become the new "normal."  Use of force is still infrequent, particularly when juxtaposed with the millions of police contacts that occur each year.  Use of deadly force is extremely rare and that is one of the challenges our profession must continually emphasize in order to better reconcile public perceptions with reality.

Next week, our nation pauses to recognize the selfless service that is provided by law enforcement, particularly taking the time to pay tribute to those who have made the ultimate sacrifice in laying down their lives for others.  With this in mind, I close this blog with some facts that I pulled off of the National Law Enforcement Officers Memorial Fund (whose motto is: "Respect." "Honor." "Remember."):

  • There are more than 900,000 sworn law enforcement officers now serving in the United States, which is the highest figure ever. About 12% of those are female. (MPD is among the nation's best with 30% women.)
  • Crime fighting has taken its toll. Since the first recorded police death in 1791, there have been over 20,000 law enforcement officers killed in the line of duty. Currently, there are 20,538 names engraved on the walls of the National Law Enforcement Officers Memorial.
  • A total of 1,466 law enforcement officers died in the line of duty during the past 10 years, an average of one death every 60 hours or 146 per year. There were 117 law enforcement officers killed in the line of duty in 2014.
  • On average, over the last decade, there have been 58,930 assaults against law enforcement each year, resulting in 15,404 injuries.
  • The 1920s were the deadliest decade in law enforcement history, when a total of 2,417 officers died, or an average of almost 241 each year. The deadliest year in law enforcement history was 1930, when 301 officers were killed. That figure dropped dramatically in the 1990s, to an average of 162 per year.
  • The deadliest day in law enforcement history was September 11, 2001, when 72 officers were killed while responding to the terrorist attacks on America.
  • New York City has lost more officers in the line of duty than any other department, with 701 deaths. Texas has lost 1,695 officers, more than any other state. The state with the fewest deaths is Vermont, with 22. (Wisconsin has lost 273 officers in the line of duty.)
  • There are 1,092 federal officers listed on the Memorial, as well as 633 correctional officers and 34 military law enforcement officers.
  • There are 280 female officers listed on the Memorial; four female officers were killed in 2014.
  • During the past ten years, more incidents that resulted in felonious fatalities occurred on Thursday than any other day of the week. The fewest number of felonious incidents occurred on Tuesday.

 

Posted by: Chief Koval

 Email to a friend

Subscribe to Email List

Subscribe to the Chief Koval's Blog email list:

By participating on this list the Wisconsin Public Records Laws may subject your email address to disclosure to third parties. By selecting "Yes" you are requesting that we treat your email address that you have provided to this list as confidential and you are also stating that you would not participate in this service if the City is obligated to release your email address to such third party requesters.

Posts By Month

Posts By Category