Teaching police when to use DEADLY FORCE

Posted Nov. 05, 2010, at 9:51 p.m.
Last modified Jan. 29, 2011, at 11:28 a.m.

In more than 25 years of teaching police how to use deadly force properly, Urey W. Patrick has heard all kinds of questions. Most, he said, come from people who don’t know what the law and training require of those charged with keeping the peace.

One question that often arises when police kill someone is: Why didn’t they shoot to wound?

“Most people seem to have an understanding of the issue based largely on movies and TV. They see people fast-draw, snap-shoot and think that you can always react fast enough to stop the other guy,” said Patrick, a retired FBI supervisory special agent.

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“None of that is real. That is sort of the special-effects version of a police shooting,” said Patrick, whose book “In Defense of Self and Others … Issues, Facts & Fallacies — The Realities of Law Enforcement’s Use of Deadly Force” is available through Carolina Academic Press.

Popkowski investigation

The reality of police shootings might become more apparent when the Maine Attorney General’s Office releases its findings on the death of retired U.S. Marine Corps Lt. James Popkowski near the Togus VA Medical Center campus on July 8.

A veteran forced to retire by a rare form of cancer, Popkowski, 37, of Grindstone was hit in the throat by one round as he turned, rifle in hand, slightly toward two officers during a confrontation that followed by as many as 45 minutes reports of a shot or shots striking the hospital, officials have said.

Witnesses reported that several shots, as many as a dozen, were fired at Popkowski, who suffered from depression caused by his illness or medications. In the hours before he went to the VA, where he had been a patient, Popkowski put a sign in his yard indicating he believed doctors were killing him by denying him stem-cell medicine, neighbors have said.

Paul Stevens of Belgrade, who claimed to have witnessed the shooting of Popkowski and recorded it with his cell phone camera, said “there was nothing in his demeanor that showed aggression whatsoever.”

Attorney General’s Office spokeswoman Nicole Sacre said this week that the investigation is continuing and she declined to speculate when the report will be released. But officials said last week that the officers who shot at Popkowski, Veterans Affairs police Officer Thomas Park and Maine Warden Service Sgt. Ron Dunham, are back at work. Park is on desk duty and Dunham on full duty. Game Warden Joey Lefebvre, who was at the scene but did not fire his weapon, is also back on the job, officials said.

The wardens and Park had been on paid administrative leave, per standard procedure.

The Popkowski shooting was the second this year in which Maine officers used deadly force. On July 28, Attorney General Janet T. Mills ruled that Maine State Police Trooper Robert Flynn and U.S. Border Patrol Agent Robert Kipler were legally justified in killing 54-year-old Cyr Plantation resident Neil Begin inside his home on April 23.

The officers had repeatedly ordered Begin to drop his rifle and shot him when they saw him moving his left hand to the rifle and leveling it toward the officers, Mills said.

Begin’s sister, Nancy Martin of Van Buren, said in late July that many members of her family felt that the officers involved in the incident resorted to lethal force too quickly.

“This definitely could have been handled a lot differently,” said Martin. “Usually if the police find that someone is armed, they wait outside if there’s no one else in harm’s way. Instead, they ran in there and shot. It was unbelievable.”

According to statistics provided by the attorney general’s office, Maine police have used deadly force 82 times in the last 20 years, including the Popkowski case. In 44 situations, the use of force resulted in death. In no case was the use ruled not justified.

No national statistics on the number of police deadly force cases in which officers were judged to have responded incorrectly appear to be available.

Each case is different

Patrick declined to comment on the Popkowski case, but the 63-year-old Winterport man — now a firearms and deadly force training consultant, including for Maine police — said he wasn’t surprised that so many Maine police officers had been cleared over the years.

“You have to take police shootings individually, one at a time, because any use of deadly force is a discretionary, personal decision made subject to a person’s training, education, experience and the totality of the situation they find themselves in,” Patrick said.

“If you get to the end of the line and you have that many shootings over 10 or 20 years in which an officer is cleared, that doesn’t mean that something’s fishy. I think it’s a testament to the training and proficiency in Maine law enforcement. As a general perception, I would say Maine law enforcement is really, really good,” he added.

Under U.S. Supreme Court rulings that act as a universal guide to American law enforcers, police can use deadly force to prevent the escape of dangerous people, stop an attempt at serious injury, or to avert the threat of it, Patrick said.

The first and perhaps most elusive aspect of deadly force usage, Patrick said, is that police must prevent, not react to, imminent risk of serious injury to themselves or others as they perceive it in the moment it occurs.

Another is that police are trained to treat armed and noncompliant individuals in their proximity, usually within 30 feet, as automatic, imminent risks of serious injury, he said.

“Police can’t read minds. They can only react to what a person does,” Patrick said. “If there is somebody standing there with a gun in his hand and he does something consistent with bringing that gun into use, [the officer] doesn’t have to wait to see what’s next.”

Nor does it matter under the law if events prove an officer wrong — for example, that what was thought to be a gun was actually a toy — or reveal other options for eliminating the threat, Patrick said.

Police must also recognize and plan for the universal limits of physiology. It takes a second for a person to process and react to stimuli, Patrick noted. Tunnel vision, loss of fine motor control, extreme adrenaline flow and the “fight or flight” response are among the reactions they must endure.

“If that person standing there has a gun down at his side, there is already imminent risk of serious injury, simply because of the reaction time,” Patrick said. “Even if you have your weapon drawn, you cannot react fast enough to stop somebody from quickly firing a shot at you. It’s just impossible.”

Yet for all that, most police avoid deadly force. In 2009, 57,268 officers were assaulted on duty in the U.S. Of them, 26.2 percent, or about 15,000, received injuries requiring hospitalization — incidents involving at least a risk of serious injury, Patrick said.

But U.S. Justice Department statistics show that about 360 people are killed annually in justified police shootings — which tells Patrick that police take on risk beyond what the law and proper training advise.

“An awful lot of people don’t get shot that could,” he said.

No statistics are available on the number of people police wound or miss.

Breadth of experience

Patrick has studied tens of thousands of use-of-force incidents throughout his FBI career and as a private consultant. John B. Rogers, director of the Maine Criminal Justice Academy in Vassalboro, said Patrick teaches all of the academy’s firearms instructor development courses, serves as chairman of the academy’s tactical team advisory board and is a good all-around adviser to instructors and cadets because of his great breadth of experience as an instructor and agent.

“He is the content expert,” Rogers said Thursday. Even in retirement, he still goes “all over the country … to talk firearm shoots and use-of-force-type training.”

Academy instructors “are going to see mistakes by cadets and get all kinds of what-ifs from them, and we want instructors to be able to answer those questions in terms of their legal authority and justification,” Rogers said. “There has got to be a single opinion that everything flows from, and Urey is [the] guy who can bring that to people.

“He has the ability to get through to people and make them understand what their legal authority is and how to use [different] force options,” Rogers said. He has the ability to “make people understand, and that’s what I like about Urey.”

The goal of deadly force is not to kill, Patrick said, but to immediately incapacitate a person threatening serious injury. Bullets don’t always do that. One lethal force failure allowed bank robbers William Russell Matix and Michael Lee Platt to kill two FBI agents and wound five others in Miami in 1986. Matix suffered six wounds and Platt 12 during the five-minute incident.

Miami’s coroner said Platt took a terminal hit, a shot through an armpit and lung, in the first 30 seconds but kept shooting, according to Patrick.

“Most people give up because a gun is pointed at them, a shot fired, or because they realize they have been wounded. For whatever reason, they stop, but it’s nothing you can count on,” Patrick said.

Deadly force incidents are often wrenching for officers due not to any regrets they might have, Patrick said, but because a community’s reaction is often negative, even when force is justified. Besides the negativity, the ambivalence of their superiors, the chill of the investigative process and the likelihood of civil lawsuits leave “a bitter taste in an officer’s mouth.”

“He did something very hard, made a difficult decision, and that is pretty much overlooked given the treatment he gets,” Patrick said, referring to an officer who has to use deadly force.

Patrick, who said he has never been involved in a deadly force shooting himself, recalled visiting a U.S. Border Patrol office long after an officer there had killed someone in the line of duty.

“I told this agent, ‘I want you to know that you didn’t do anything wrong. You did what you had to do,’” Patrick said. “He started crying and said, ‘You know, you are [only] the second person in five years to tell me that.’”

The lack of support, Patrick said, “is the circumstance that ruins a police officer.”

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