To shoot, or not to shoot? That is the ultimate question.

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Over the last few years, there have been an increasing number of news stories covering officer-involved shootings.  The most recent being the deaths of Alton Sterling in Baton Rouge, La. and Philando Castile in St. Anthony, Mn.  While it is not clear if there are more instances of these types of shootings or whether there is simply more news coverage of them, they always leave people asking questions.  Typically, the questions are, “Why did the officer(s) have to shoot that person?  What else could the officer have done?  What can we do to change this so that it doesn’t happen in the future?”  Surprisingly, the question that is hardly ever asked is, “When are officers allowed to use force – especially deadly force – and how is that authority governed?”

Several months ago, the Campbell Law Observer posted an article regarding the use of Tasers as a tool in the intermediate or “less-lethal” range of the use-of-force continuum.  This article will further expand on the force continuum to explain the use of deadly force in North Carolina.

Each and every time a police officer uses any level of force, that force must be reasonable under the circumstances and the officer must be able to clearly articulate why they used it.

In the State of North Carolina, an officer’s authority to use force in effecting the arrest of an individual is granted by North Carolina General Statute 15A-401(d).  Subsection (d)(1) allows an officer to use force on someone when and to the extent the officer feels is necessary to:

1. Prevent the escape from custody or to effect an arrest of a person who he reasonably believes has committed a criminal offense, unless he knows that the arrest is unauthorized; or
2. To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.

What does this mean?  Simply put, a police officer may use the level of force he or she believes is necessary to arrest a person whom that officer has reason to believe committed a criminal offense.    If that person resists arrest, either passively (such as refusing to stand up and submit to arrest) or actively (such as fighting with the officer), subsection (d)(1)(a) allows that officer to use force to arrest that person.

Subsection (d)(1)(b) goes one step further and allows  the officer to use force in anticipation of opposing physical force.  In other words, the officer does not have to wait until the person actually begins to use physical force before that officer can respond or preempt with force.  To be clear, N.C. Gen. Stat. § 15A-401(d) does not give an officer carte blanche to use force whenever and however they choose.  Each and every time a police officer uses any level of force, it must be reasonable under the circumstances and the officer must be able to clearly articulate why they used it.

A police officer’s use of force is governed by the “use-of-force continuum”.

How does an officer know what level of force to use?  A police officer’s use of force is governed by the “use-of-force continuum.”  This continuum is generally established by an individual agency’s policies; however, the National Institute of Justice provides an excellent example.  At the bottom or starting point of the continuum is mere officer presence.  Here, the officer’s attitude and demeanor is professional and non-threatening.  They are not holding any weapons nor are their hands on any weapons.  This is considered the best way for an officer to resolve a situation as no force is used.

The next level is verbalization.  This is more than a simple conversation or voluntary encounter as the officer is actually giving the individual commands.  For example, officers use verbalization during a traffic stop when an officer asks a driver for their license and registration or is commanding someone to stop or not move.  There is a level of force being used, but this force is not physical.

After verbalization is empty-hand control, which is the first level of physical force.  There are two sub-levels of force within empty-hand control: “soft hands” and “hard hands”.  Soft-hands include techniques such as grabs, holds, pressure points, and joint locks.  These pain-compliance techniques are not designed to cause any lasting injury and are generally used on passively resisting individuals.  Hard-hands include punches, kicks, and strikes.  These techniques generally target specific areas of the body with high concentrations of nerve endings and are designed to stun or temporarily incapacitate an individual who is actively resisting an officer with physical resistance or force.

If empty-hand control is ineffective or impractical, officers may move to “less-lethal methods” or “intermediate weapons”.  These include blunt impact weapons such as batons or bean-bag rounds, chemical weapons such as OC spray or CS gas, or conducted energy devices such as Tasers.  Less-lethal methods of force are used on combative subjects who are either armed or whose actions pose a threat of serious injury to the officer or the individual themselves if the officer were to attempt a lesser degree of force.

[The use of deadly force] requires a reasonable belief of the use or imminent use of a deadly weapon, not absolute certainty.

The last and most serious level in the use-of-force continuum is the use of deadly force.  North Carolina General Statute 15A-401(d)(2) provides that a police officer may use deadly force against another person only when it appears reasonably necessary:

1. To defend [themselves] or a third person from what [they] reasonably believe to be the use or imminent use of deadly physical force;
2. To effect an arrest or to prevent the escape from custody of a person who he reasonably believes is attempting to escape by means of a deadly weapon, or who by his conduct or any other means indicates that he presents an imminent threat of death or serious physical injury to others unless apprehended without delay; or
3. To prevent the escape of a person from custody imposed upon him as a result of conviction for a felony.

The first provision of § 401(d)(2)(a) allows  officers to use deadly force against a person that they  reasonably believe is using or is about to use deadly force against them or another person.  Typical scenarios include: a person about to shoot an officer or another person, an attempt to stab them, hit them in the head with a club or heavy object, or use a vehicle as a weapon.  The scenarios are limitless.

It is important to understand that this statute requires a reasonable belief of the use or imminent use of a deadly weapon, not absolute certainty.  This provision is what protects officers who have a reasonable belief that a suspect was reaching for a gun or a weapon.  Further, this statute does not require an officer to wait until a suspect actually uses a weapon before the officer can respond with deadly force.

The best illustration of § 401(d)(2)(b) is an active-shooter scenario.  This provision allows police to engage and eliminate the threat of an active shooter without having to observe the suspect in order to establish and justify a reasonable belief that the suspect posed a threat to the officer or a third party.  If officers are authorized to use deadly force under § (d)(2)(b), then the requirements of § (d)(2)(a) must have already been met.

Lastly, § 401(d)(2)(c) allows prison guards to use deadly force to stop prisoners from fleeing.  This provision allows armed guards to sit in the towers of prisons as well as carry shotguns when supervising inmate work crews.  Should a convicted felon attempt to flee, a corrections officer is allowed to shoot them.

[W]hen a police officer uses force, the force used must be “objectively reasonable.”

So what exactly is reasonable?  The Supreme Court of the United States has provided some guidance through its “objectively reasonable” test established in Tennessee v. Garner and Graham v. Connor.

In Tennessee v. Garner, two Memphis police officers responded to a burglary call.  Upon arrival, they saw Edward Garner, a teenager, running from the scene.  When Garner stopped at the base of a 6-foot-high chain link fence, Officer Elton Hymon ordered Garner to stop.  Garner failed to obey, and began to scale the fence.  Hymon testified that he did not see a weapon in Garner’s hands.  Yet as Garner began to climb the fence, Hymon testified that he fired a warning shot.  Unfortunately, the shot hit Garner in the back of the head and he died shortly thereafter.  Ten dollars and a purse stolen from the house were found near his body.

Prior to Garner, police in Tennessee were allowed to use deadly force against a fleeing suspect under the “fleeing felon doctrine”.  Under this doctrine, police were required to weigh the danger of shooting a fleeing suspect, the severity of their crime, and the likelihood of immediate or future harm caused by the suspect if not immediately stopped.  However, in the 1984 Garner decision, the Court held that Garner’s death under these circumstances was unreasonable and was a violation of his Fourth Amendment rights.  It struck down the fleeing felon doctrine and ruled that police officers may not use deadly force to prevent the escape of a felon unless that person poses a significant threat of death or serious physical injury to the officer or a third party.  In making this ruling, the Court tried to balance the government’s interests in providing effective policing against the infringement on a suspect’s rights.

The Court did not address how Garner would apply to any other uses of force until the 1989 decision of Graham v. Connor.  In Connor, Petitioner Graham felt an insulin attack coming on and asked a friend to drive him to the store to get something with sugar.  When they got to the store, there was a long line.  Graham ran back out of the store and jumped into his friend’s car to go somewhere else.  At that time, a Charlotte police officer observed Graham’s actions and thought they were suspicious.  He followed the car, stopping it a short distance away.  Graham’s friend tried to explain to Officer Connor what was happening and that his friend needed help.  Connor told them to wait until he could check the convenience store to be sure everything was okay.

During this time, Graham got out of the car, ran around it twice, and sat down, briefly passing out.  Connor, believing Graham to be under the influence of something, placed him in handcuffs.  Graham and his friend’s repeated requests for medical assistance were ignored, and during this time Graham received a broken foot, cuts on his wrist, a bruise on his forehead, and an injured shoulder.  When another friend brought Graham some orange juice, the officers refused to let him have it.

The Court held the actions of the Charlotte Police Department were unreasonable.  The Court ruled that when a police officer uses force, the force used must be “objectively reasonable.”  In other words, their actions must have been reasonable in light of the facts and circumstances in front of them, regardless of their underlying intent or motivation.

There are several factors which must be considered when deciding to use force, including whether the suspect poses an immediate threat to the officer or to the public, the severity of the suspect’s crime, whether they are actively resisting arrest, and whether they are a flight risk or trying to escape custody.  The Court noted “reasonableness . . . is not capable of precise definition or mechanical application”.  Thus, when reviewing the reasonableness of an officer’s use of force, courts will look at what an officer with similar training and experience could have done in the same situation, not what they would or should have done.

[T]here are things that can be done to ensure all parties in a police encounter remain safe.

The most common question after a police shooting is, “What can be done to prevent this from happening again?”  Simply put, there is nothing that can be done to prevent any police officer from ever having to use deadly force again.  As long as violent people exist, police officers will be needed to stop them.  Sometimes, it will include taking the lives of those individuals.  Nonetheless, there are things that can be done to ensure all parties in a police encounter remain safe.

The first is to remain calm.  Nobody likes to be questioned by the police, and it can be a very embarrassing and uncomfortable experience.  However, becoming aggressive or agitated is not going to help.  It will make you more likely to say something you should not (and that can be used against you in court) and it will put the officer on guard.  The best approach is to be as polite and courteous as possible, regardless of how the officer is acting or treating you.  Many officers wear body cameras now, and the actions of all involved will be scrutinized later.

Keep your hands in plain sight.  When a police officer interacts with an unknown individual, that officer does not know who the person is, what their intentions are, what their criminal history is, whether or not they are wanted, whether or not they are carrying weapons (legally or illegally), etc.  Keeping hands in plain sight shows the officer you are not holding any weapons nor are you reaching for any weapons.  If you are carrying a weapon (including knives), let the officer know as soon as possible, and let them remove it to a safe location until the encounter is over.

Carry identification with you and present it when requested.  As previously mentioned, police officers will be on heightened alert until they know who you are and what your intentions are.  While keeping your hands visible, let the officer know you are carrying identification and let them instruct you to retrieve it.  This way, there is no mistaking whether you are suddenly reaching for your wallet or for a weapon.

Do not argue with the officer.  Right or wrong, legal or illegal, you will not win an argument about the validity of the officer’s actions on the side of the road.  This is a fight better fought in court.  Further, should you continue arguing, you may be charged with resisting arrest and/or disorderly conduct.

Obey the officer’s instructions, whether or not you agree with or understand the reasons for them.  Officers have valid reasons for giving the commands and instructions they give.  While these reasons may not be clear to the person receiving the orders, this is not the time to demand an explanation.  Police work is very dynamic in nature, and officers do not always have the time to explain themselves.  If a person has genuine concerns about the officer’s instructions, such as a concern for their safety if they obey, these may be respectfully voiced.  Otherwise, it is best to wait until after the situation is concluded before asking the officer for an explanation.  Officers are generally not required to explain themselves, but most officers will at the appropriate time.  Once again, a respectful demeanor is key.

Finally, do not, under any circumstances, resist the officer.  Regardless of whether you feel you are being wrongfully searched, detained, or arrested, if you resist, the officer is legally authorized to use force (assuming the search, detention, or arrest is lawful, which will not be determined until after the situation is over).  Submitting to arrest and then arguing its validity in court is the safest way to handle the encounter.