President’s Message: Use of Force Issues: Warning Shots and Shots Discharged at Moving Vehicles

Chief De Lucca
Donald W. De Lucca, Chief of Police, Doral, Florida, Police Department

As noted in the March 2017 issue of Police Chief, the IACP, in conjunction with the Fraternal Order of Police, assembled leading law enforcement leadership and labor organizations to examine the issue of use of force by law enforcement. The extensive work of the participating organizations began in April 2016 and resulted in a National Consensus Policy on Use of Force that was released in January 2017.

This Consensus Policy considers and reflects the broad views and experience of law enforcement professionals from line officers to executives. The developed and adopted Consensus Policy reflects the best thinking of the 11 diverse participating organizations and is not intended to become a national standard. Rather, the document is solely intended to serve as a template for law enforcement agencies, both in the United States and around the world, as they work to enhance their existing policies. It is also essential to remember that the topic of use of force is much broader and more complex than only the actions that constitute police use of force, which seem to be the focal point for the media reports. There are several other important and interconnected elements, including use of force against police, which can influence how officers respond to situations; data collection; and research- and evidence-based methodologies.

The upcoming discussion paper will provide a more in-depth review of the issues outlined in the Consensus Policy such as defining deadly force, legal considerations that govern the use of force, use-of-force models, de-escalation, use of less-lethal force, and deadly force restrictions.

However, since its release, there have been two areas of the Consensus Policy that have been frequently discussed and debated among IACP members and within the law enforcement profession: warning shots and shots fired at a moving vehicle. The upcoming discussion paper provides a detailed review of the rationale behind the inclusion of these topics. A brief summary of this review follows.

Warning Shots. The inclusion of an allowance for warning shots in the Consensus Policy should not negate the establishment of a more restrictive policy on the topic by individual agencies.

Defined as “discharge of a firearm for the purpose of compelling compliance from an individual, but not intended to cause physical injury,” warning shots are inherently dangerous. The Consensus Policy outlines very strict guidelines for the use of warning shots, while still providing latitude for officers to use this technique as a viable alternative to direct deadly force in extreme and exigent circumstances. The Consensus Policy makes clear that warning shots must have a defined target and can be considered only when deadly force is justified and when the officer reasonably believes that the warning shot will reduce the possibility that deadly force will have to be used.

Finally, the warning shot must not “pose a substantial risk of injury or death to the officer or others.” Essentially, the intent of the Consensus Policy is to provide officers with an alternative to deadly force in the very limited situations where these conditions are met. However, they are not meant to be a requirement prior to the use of deadly force.

Shots Discharged at Moving Vehicles. The Consensus Policy makes clear that the discharge of a firearm at a moving vehicle is deadly force. As a result, such action is permitted only under extreme circumstances, and, because it generally involves increased potential risk, it carries a higher burden of justification for use.

It must be understood that the use of firearms under such conditions may present an unacceptable risk to innocent bystanders. Should the driver be wounded or killed by shots fired, the vehicle will almost certainly proceed out of control and could become a serious threat to officers and others in the area.

Officers should consider this use of deadly force only when “a person in the vehicle is immediately threatening the officer or another person with deadly force by means other than the vehicle,” or when the vehicle is intentionally being used as a deadly weapon and “all other reasonable means of defense have been exhausted (or are not present or practical).” Examples of circumstances in which officers are justified in shooting at a moving vehicle include when an occupant of the vehicle is shooting at the officer or others in the vicinity or, as in what has become an increasingly frequent event, the vehicle itself is being used as a deliberate means to kill others, such as a truck being driven through a crowd of innocent bystanders.

Even under these circumstances, officers should discharge their firearms at moving vehicles only when doing so will not create unreasonable risk to the safety of officers or others in the vicinity, when reasonable alternatives have been exhausted, and when failure to take such action would likely result in death or serious bodily injury. However, in cases where officers believe that the driver is intentionally attempting to run him or her down, consideration should be given to moving out of the path of the vehicle, if practical, as a possible alternative to using deadly force. The Consensus Policy recognizes that there are times when getting out of the way of the vehicle is not possible and the use of a firearm by the officer is warranted.

It is my hope that this summary will provide greater context regarding the inclusion of these topics in the Consensus Policy. While, obviously, it is impossible to craft a policy to address every potential use-of-force encounter, I believe it is also critical to ensure that our policies don’t place our officers in a situation where they need to violate a policy in order to protect themselves or others. The Consensus Policy addressed the questions of warning shots and shooting at moving vehicles in order to provide officers with some guidance and context on how to act in these situations while still allowing them to exercise their best judgement. However, I realize that not every department may agree with this approach, which is why it is essential to remember that the Consensus Policy is intended to be a tool for law enforcement agencies who can adopt, amend, or adapt the policy to meet their needs and reflect the specific needs of their agencies.

 

Please cite as

Donald W. De Lucca, “Use of Force Issues: Warning Shots and Shots Discharged at Moving Vehicles,” President’s Message, The Police Chief (August 2017): 6.