Police Use Of Deadly Force Debate

When a police officer uses deadly force in the course of their duties, emotions can run very high. In many cases, police officers sometimes step over the line, whether they mean to or not. They even sometimes breaking the law. In cases where a police officer uses deadly force, victims and their families are left very upset. They often choose to pursue a civil, or wrongful death case against an individual officer. Our supreme court, over a series of court cases, has chosen to protect officers from this liability in certain situations. Today on the Puyallup Tribal Podcast, Brandon and I debate different sides of this very hot topic: when a police offer does kill someone incorrectly, are the laws protecting them from prosecution good or bad? Download and listen to this week’s podcast by clicking here.

Washington State in their law RCW 9A.16.040 chooses to expand this immunity beyond civil lawsuits to include protection from criminal prosecution as well. This law outlines the acceptable use of deadly force by police officers. Both the supreme court decisions as well as the Washington state law is built upon the foundation of something called “qualified immunity”. In this article, the scope of what constitutes qualified immunity is explored.

The way it works is this: Often in the course of duty it is possible for a police officer to use deadly force, believe he is acting appropriately, and be wrong. In his error, he may unknowingly violate a suspect’s civil rights. For example, if a police officer reasonably expects a suspect to fight back (let’s say he is holding some type of weapon and refuses to drop it) he is generally protected from liability, even if it later turns out the suspect had no intention of fighting back. Obviously, this assumes the officer uses a level of force consistent with the level of threat the officer reasonably believes the suspect poses. This is what is known as making a reasonable mistake of fact.

However, it is possible that an officer might correctly understand all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances.  If the officer’s mistake as to what the law allows is reasonable, however, the officer is entitled to the immunity defense. In other words, an officer can understand a situation perfectly but end up going a step too far and still have immunity from a lawsuit being brought against him. This is known as making a reasonable mistake of law. The key to these defenses is that word: “reasonable“.

If your first thought is that this is a very vague descriptor, you are correct. For this reason, every immunity decision is made on a case by case basis, and defines “reasonable” by holding the facts of the case against clearly established law. In other words, as a police officer you cannot simply claim to believe or interpret a situation in a certain way, kill a civilian, and expect your overstep of the law to be brushed aside on your word alone. There are a myriad of different criteria which must be met, and an officer’s beliefs are but just one piece to the puzzle.

For example, in the case of a felon who leads Puyallup police on a 30 minute foot chase culminating in the suspect in a locked SUV – The officer breaks the window and attempts to get the keys. When this is unsuccessful and the suspect begins to escape, the officer believes that the suspect poses an immediate threat to the safety of the general public and shoots him in the back: Brosseau v. Haugen (2004). The officer stated that she believed the fleeing suspect to be a danger and the court agreed with her. In a different case a police officer tried to claim qualified immunity, on the grounds that an unarmed teenage boy suspected of robbery was dangerous and she believed the use of deadly force was justified. However, the court did not find this belief to be reasonable and immunity was denied: Tennessee V Garner. The officer’s state of mind is of great importance, but is far from the only deciding factor.

Another layer is that all of these protections (if applicable) cover only the individual officer. An officer can act outside of the law, and even if they get immunity the police force, city, or state can still be held liable even if the officer is not.

Now on to a particular case involving a member of the Puyallup Tribe. Due to the local nature, we will not use any names here or in the podcast. The news story links do contain that information however. On January 28th of 2016, a Puyallup tribal member was shot and killed by an officer. In may of 2016, that officer’s use of deadly force was ruled justified. This is the first step, which determines whether or not the officer could be held criminally liable. For many tribal members this is an extremely emotional issue, and my co-host Brandon is no exception to that. In this week’s audio, you will hear him question some of what I say, and he expresses his belief that officers should be held both financially and criminally liable in all cases, and does not approve of immunity for any officers regardless of the situation. He, like the family, also question the truthfulness of events that led to our tribal member’s death. Now that an investigation into the officer’s actions is complete, many question whether or not the investigation was truthful. I do not know whether or not they faked the toxicology reports that state she had a potentially lethal amount of meth and morphine in her system.

Neither do I know the details behind her previous arrests of evading the police, leading them on a high speed chase, or slipping out of handcuffs when arrested.  I don’t know if the police are targeting minorities, or lying about the movement of the vehicle. I do know that none of these issues seem to come up when the public questions the officer’s actions, or the report that she began to drive toward them. As far as I can tell, the conflicting reports come from eyewitness accounts, who question the direction of the officer’s approach and the treatment of the body afterwords. I don’t know how accurate these reports are either. I personally prefer to investigate the evidence at the scene and allow that to tell the story. It is my belief that the bullet trajectories would tell the story of what direction the shots originated from more accurately than any human trying to rely on memory alone. For that reason, I would love to get a copy of the ballistics report and other scene investigators and try to discover what really happened based on that. Everything else seems to be conjecture and speculation to me.

I truly hope that justice is done, and done correctly. If the officers acted out of line or in any way as described by the witnesses, and then engaged in a cover up effort, they are beyond evil. But if the events are closer to the police version, unfortunately the officers would have been within their rights. Without the investigation report, it is impossible to know.

I am not sure what our discussion will accomplish here today, but I do hope it aids in your understanding. If you have any comments, please write them in to podcast@nativetalk.net

Cliff and Brandon are enrolled members of the Puyallup Tribe of Indians and host a Tribal Podcast with his brother Brandon with a variety of episodes available online. They talk about native issues in the news and anything of interest to Native Americans! Join us for a new episode each week.

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