The Police Chief, the Professional Voice of Law Enforcement
Advanced Search
October 2014HomeSite MapContact UsFAQsSubscribe/Renew/UpdateIACP

Current Issue
Search Archives
Web-Only Articles
About Police Chief
Advertising
Editorial
Subscribe/Renew/Update
Law Enforcement Jobs
buyers Your Oppinion

 
IACP
Back to Archives | Back to October 2004 Contents 

From the Director

From the Administrator: Standing Together for the Officer’s Right to Self-Defense

By Karen P. Tandy



Karen P. Tandy
Karen P. Tandy, Administrator
US Drug Enforcement Administration
rom Dirty Harry to Lethal Weapon, Hollywood has fed us yarns of reckless lawmen racing off to high-speed chases and shoot-’em-up gun battles. If you believed these movies, you’d think that law enforcement officers fire their weapons as often as office workers file papers and answer phones.

We all know those movies are more about box office sales than reality. For an officer, to fire his weapon in any situation is perhaps the most serious act he is called upon to perform. It is born of necessity and undertaken only to protect life and limb. As sworn officers, we are members of the only profession in America that has the prescribed right to use force—even deadly force—in dealing with our fellow citizens. We exercise that awesome responsibility with the restraint our professional obligations, not to mention normal human decency, require of us.

Most of our citizens know this. Some who ought to don’t—and therein lies the potential for injustice. What follows is a true story of injustice defeated. It is a story about cooperation between federal and local law enforcement agencies, the courage and dedication of a DEA special agent, and the strong partnership between DEA and the International Association of Chiefs of Police. In the end, our victory was complete.

In 2002 DEA Special Agent Jude Tanella was forced to fire his gun in self-defense.1 What followed over the next two years was a legal battle to prove that, at the time he fired, he had good reason to believe his life was in imminent danger. It was a battle that DEA fought hand-in-hand with the IACP and law enforcement agencies across the country.

On May 1, 2002, shortly before 11:00 a.m., three DEA special agents and a New York City police detective attempted to arrest suspected cocaine trafficker Egbert Dewgard by surrounding his car and boxing it in at an intersection in Brooklyn. Dewgard reacted by ramming the detective’s vehicle, driving onto the sidewalk, and fleeing in his car through the congested streets of the neighborhood. Dewgard swerved into pedestrian pathways and drove into oncoming traffic. The officers pursued him as best they could, but eventually only Special Agent Tanella was able to keep up.

While maintaining radio contact with his fellow officers, Tanella continued the pursuit for approximately 15 blocks. At that point, Dewgard lost control of his car and drove up onto the sidewalk, wedging the car between a telephone pole and a fire hydrant. Dewgard bolted out of the car and ran down New York Avenue carrying a black plastic bag later found to contain three kilograms of cocaine. Agent Tanella stopped his car near Dewgard’s, alerted his fellow officers to the situation, and, with his service weapon in his left hand, ran after the suspect.

With his DEA agent’s badge clearly displayed around his neck, Tanella pursued Dewgard on foot for approximately 400 feet, while continually identifying himself by shouting “Police,” and ordering Dewgard to stop. Dewgard continued to run, cocaine in hand, until he tripped and fell in the street between two parked cars. At that point, Tanella, still carrying his handgun in his left hand, caught up to Dewgard and tried to arrest him. Dewgard, who was significantly taller and heavier than Tanella, violently resisted. He told Tanella in blunt language that he would not submit. At one point, while punching and shoving Tanella, Dewgard snarled that the agent would have to shoot him. Although a crowd had gathered nearby, and the agent repeatedly asked bystanders to summon help, no one in the crowd came to Tanella’s aid.

After punching Tanella numerous times, Dewgard shoved the agent and knocked him off balance, onto his hands and knees. At that point, Tanella saw Dewgard reach for Tanella’s gun. Fearing for his life, Tanella fired one shot, striking Dewgard in the lower right side of his back. Although injured and bleeding, Dewgard continued to struggle and resist the now-exhausted agent. Two other DEA agents arrived on the scene and managed to handcuff the still-resisting Dewgard. From beginning to end, the struggle between Agent Tanella and Dewgard, up to and including the firing of the single shot, occurred in the same small space between two cars. Dewgard was still in that space when he was struck by the bullet. After handcuffing Dewgard, the agents immediately called for an ambulance, which took Dewgard to Kings County Hospital. He was pronounced dead on arrival at 11:30 a.m.

The Criminal Charge against Agent Tanella

The shooting during the attempt to arrest Egbert Dewgard resulted in significant television and newspaper coverage in the New York City area. Several people claimed to have witnessed the incident, and their accounts varied greatly. Some were consistent with the known facts. Other stories were clearly inaccurate or intentionally false. For example, more than one witness claimed that Dewgard was already handcuffed when he was shot, and another claimed that Dewgard was shot in the stomach by a uniformed policeman. The Brooklyn District Attorney’s Office commenced a special grand jury investigation of the incident, during which it presented the testimony of several civilian witnesses and law enforcement officers, including Agent Tanella. One of the civilian witnesses told the grand jury that Dewgard was handcuffed before he was shot. Although the district attorney’s office later conceded that this testimony was false, it is unknown whether that error was ever brought to the grand jury’s attention.

On October 29, 2002, the grand jury returned a one-count indictment, signed by District Attorney Charles J. Hynes, charging Agent Tanella with manslaughter in the first degree for causing Dewgard’s death “with intent to cause serious physical injury.” On November 1, 2002, in Kings County Supreme Court, Agent Tanella entered a plea of not guilty. Tanella was initially represented by an attorney retained by the Federal Law Enforcement Officers Association, but soon thereafter the Department of Justice authorized legal representation for him. He was able to hire a private attorney, Adam S. Hoffinger of Washington, D.C., to represent him at the expense of the United States.

Removal of Agent Tanella’s Case to Federal Court

To protect federal officials’ performance of their duties from unwarranted and sometimes crippling interference from the states, federal law contains a provision commonly known as the “removal statute.”2 This law allows a federal employee to remove a state proceeding to federal court if the action being litigated was undertaken as part of his or her official duties, and the employee has a reasonable or plausible federal defense to the state charges. After the case is removed to federal court, the employee is entitled to have the charges dismissed based upon the Supremacy Clause of the U.S. Constitution if the federal district court finds that, in carrying out his or her official duty, the employee did no more than what was “necessary and proper,” under federal law, state law notwithstanding.3 Agent Tanella’s attorneys succeeded in removing the manslaughter charge to the U.S. District Court for the Eastern District of New York and subsequently filed a motion to dismiss the indictment based upon federal immunity.

Agent Tanella consistently maintained that he fired the shot in self-defense. The Brooklyn prosecutor’s position was that Agent Tanella fired merely to keep Dewgard from getting away. It is generally unlawful for an officer to use deadly force simply to stop a felon from escaping. 4 However, as the court found, the facts and circumstances of the shooting supported Agent Tanella’s assertion that he fired only because he reasonably believed his life was in imminent danger. As the court observed, if Tanella had wanted to shoot Dewgard to keep him from escaping, he had many opportunities to do so before he actually discharged his gun. Instead, the agent pursued Dewgard for some distance both in his vehicle and on foot without attempting to fire his weapon. He made every effort to convince the larger man to submit to arrest by trying to physically restrain him and by repeatedly ordering him to stop resisting. After becoming exhausted during the intense struggle, Agent Tanella fired one shot because he believed Dewgard was trying to grab for his gun. Finally, the fact that, after the shooting, Dewgard and the blood from his wound were in the same spot where the struggle began demonstrated to the court that Dewgard was not fleeing when he was shot. He was fighting.

The Role of the IACP in the Tanella case

The IACP National Law Enforcement Policy Center’s model policy on the use of force and the Justice Department’s deadly force policy each recognize the right of a law enforcement officer to use deadly force in self-defense. The IACP policy notes that one of the justifications for the use of deadly force is to “[p]rotect the officer or others from what is reasonably believed to be a threat of death or serious bodily harm.”5 The Justice Department’s policy states, similarly, that deadly force may be used by an officer “only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.”6 Because the situation faced by Agent Tanella is one that could happen to any police officer or federal agent attempting to make an arrest, it is important for all law enforcement officers that the right to self-defense be recognized and unambiguously vindicated. The danger faced by Agent Tanella is all too grimly illustrated by the fact that between 1993 and 2002, 45 law enforcement officers were killed in the line of duty by assailants who used the officer’s own handgun.7

Although the federal district court dismissed the criminal charge against Tanella, the Brooklyn District Attorney’s Office appealed that ruling to the U.S. Court of Appeals for the Second Circuit. In order to demonstrate the unity of all law enforcement officers on this issue, and to benefit from the expertise of the IACP, Agent Tanella’s defense, with the full support of the DEA, asked that the IACP lend its official support to Agent Tanella by filing an amicus, or friend of the court, brief in the second circuit. IACP President Chief Joseph M. Polisar and the entire IACP Board of Officers enthusiastically agreed. The amicus brief, in which the Americans for Effective Law Enforcement joined, was filed in the second circuit on January 26, 2004. To counter the prosecution’s argument that the shooting was not justified because Dewgard was shot in the side of the back, and may have been turning to run away when he was shot, the IACP brief cited a study by Professor William Lewinski, Ph.D., of Minnesota State University, that found that “the time it takes for an officer to process visual stimuli and then to react to a person’s threat, is a longer period than the suspect’s turning actions.” 8

The End of the Manslaughter Case

The unified support of the IACP, the DEA, and the Department of Justice for the right of Agent Tanella and all law enforcement officers to defend themselves with force when left no other choice, was vindicated by the second circuit. On June 30, 2004, the court unanimously affirmed the dismissal of the manslaughter charge against Agent Tanella.9 The court ruled that the district judge was correct in holding that Tanella, at the time he fired his gun, reasonably feared imminent death or serious bodily harm. Because federal law permits an officer to use deadly force in those circumstances, the Supremacy Clause shielded Agent Tanella from state criminal prosecution.

The court said: “We hold, as a matter of law, both that Tanella honestly believed his life to be in danger and that his belief was objectively reasonable.” The court recounted in detail the testimony of the various witnesses who testified before the state grand jury. It observed that the testimony of those witnesses did not suggest that Agent Tanella acted wantonly or with criminal intent, or that he had any motive other than to do his job under circumstances as they appeared to him. The court concluded that “under these tense and perilous circumstances, Tanella’s perception that Dewgard was reaching for his (Tanella’s) gun was objectively reasonable as a matter of law.”

With that final decision, the two-year battle to vindicate Agent Tanella ended in victory. We owe that victory, as we owe so many of our victories, to the outstanding cooperation among federal, state, and local police and those who stand with them. Agent Jude Tanella, the DEA, and I are extremely grateful to the IACP and all its members. In the end, our strong partnerships and our faith in our mission prevailed. In this case and in every future case, no matter where, and no matter when, we will do whatever it takes to defend the lawful and courageous actions of our officers.


1Agent Jude Tanella joined DEA in 1998. Before joining DEA, he served for four and a half years with the Township of Old Bridge, New Jersey, Police Department, where he was a member of the special weapons and tactics (SWAT) team for four years. He is a veteran of the U.S. Navy and served with the U.S. Army National Guard.
228 U.S.C. 1442 (a)(1).
3See In re Neagle, 135 U.S. 1, 75 (1890).
4See Tennessee v. Garner, 471 U.S. 1 (1985).
5Effective date August 2001.
6Adopted by Resolution 14 of the DOJ Office of Investigative Agency Policies in October 1995. The quoted portion was unchanged in the amended deadly force policy approved by Attorney General John Ashcroft on July 1, 2004.
7Federal Bureau of Investigation, table 14, Law Enforcement Officers Killed and Assaulted, 2002, 18.
8William Lewinski, “Why Is the Suspect Shot in the Back?,” The Police Marksman 25 (6) (Nov.-Dec. 2000): 28; www.ultimateperformancetraining.com/articles/shotinback.pdf .
9New York v. Tanella, No. 03-1589, 2004 U.S. App. Lexis 13490 (2nd Cir. June 30, 2004).




 

From The Police Chief, vol. 71, no. 10, October 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








The official publication of the International Association of Chiefs of Police.
The online version of the Police Chief Magazine is possible through a grant from the IACP Foundation. To learn more about the IACP Foundation, click here.

All contents Copyright © 2003 - International Association of Chiefs of Police. All Rights Reserved.
Copyright and Trademark Notice | Member and Non-Member Supplied Information | Links Policy

44 Canal Center Plaza, Suite 200, Alexandria, VA USA 22314 phone: 703.836.6767 or 1.800.THE IACP fax: 703.836.4543

Created by Matrix Group International, Inc.®