To Use or not Use a Use of Force Expert... That is the Question.
By Jennifer Sexton, Attorney - Tuesday, March 24, 2020
Today’s climate is finding more and more officers being disciplined, terminated and even prosecuted for excessive use of force allegations. While the burden still squarely sits on the employer or prosecutor to prove that excessive force has been used, should the officer be more proactive in fighting the claims?
Recently, an Amtrak police officer was charged with first degree murder. The case involved a suspect who was acting suspiciously and was approached to be searched for weapons. The suspect began arguing with the officers and then fled on foot. As the suspect fled, he turned and reached into his left pocket. The officer, believing the suspect to be reaching for a gun, fired his weapon and hit the suspect, killing him. At trial, a use of force expert testified to the trajectory of the bullet and to the escalating threat that the officer reasonably believed he and his partner were experiencing. The judge heavily relied on the testimony given by the use of force expert and actually stated that the expert’s testimony alone was enough to raise reasonable doubt. The officer was found not guilty on all charges.
In another example, a male subject with a history of mental health issues went and purchased a pellet gun from a pawn shop. The pellet gun closely matched a .22 rifle in resemblance. Three deputies responded to calls about a man with a gun and drew their firearms at the rifle toting suspect, who was carrying the rifle across his back in a crucifix fashion. Their verbal commands were ignored, while the suspect continued to walk away from deputies and towards a pool full of kids. The suspect ultimately turned towards the deputies, brought the rifle towards the front of himself and was shot in the chest twice by one of the deputies. The three deputies all provided different testimony as to how the suspect brought the rifle to the front of him.
One deputy said the rifle was kept in a horizontal fashion, another said with the barrel up (port arms style) and the third, the deputy who shot, stated the suspect had shouldered the rifle and raised it towards him. The discrepancy in statements, and the fact that the suspect was shown to be wearing earbuds at the time, caused controversy. A Force Science Analyst testified before the grand jury that the different testimonies of the deputies could be compared to that of an NFL game, in which a play can look completely different based on the angle of the camera (or line of sight in this incident). The analyst showed clearly from the gunshot wounds themselves that the suspect had been squarely facing the deputy who fired.
Additionally, the analyst showed how a deputy normally will focus on the threat and may only see the barrel of the rifle. Therefore, with his complete focus on the barrel, he could have reasonably viewed the rifle as being shouldered. Action/reaction times were also demonstrated to show the necessity of firing when the deputy did. Further, the analyst addressed why only one deputy fired, which could be based on varying stress levels of the deputies and the mental processing times involved which can be unique to each individual deputy. Finally, the analyst spoke to the earbuds by testifying that it is not a requirement that deputies assess hearing capabilities prior to firing and that it is reasonable to expect the deputies to focus on the rifle and not on the earbuds during the incident (indeed all of the witnesses also failed to say, or observe, that the suspect was wearing earbuds since they were also presumably focused on the rifle). The criminal case against the deputy was dropped. (This account was provided during a Force Science training attended by Dan Bailey, a Field Representative out of our Springfield Office.)
There can be a downside to using a use of force expert. Once an officer hires an expert to review his case, the results may be used against the officer. In a situation where whether a use of force was justified is a close call, it may be better to rely on the cross examination of the employer’s or the State’s expert.