Fear & Deadly Force: Officer Involved Shootings

The rules governing the use of deadly force by law enforcement are as easy to understand as the rules for three-card monte but about as difficult to apply as brain surgery.

In fact, "brain surgery" is often a perfect metaphor for the job of those of us who review police shootings as court-qualified experts, because to determine whether or not the action was justified we've got to get into the head of the shooter.

National standards generally demand that two conditions exist before an officer can lawfully resort to the use of deadly force. First, that he fears for his life and/or the life of some other person and, second, that the use of less-than-deadly force or evasive action will not end the threat.

I was recently retained by the district attorney's office of a major city on the East Coast to review a police shooting that had some striking parallels to the Margaret Mitchell case in which a Los Angeles police officer killed a mentally ill homeless woman armed with a screwdriver.

According to the only living witness in the East Coast case - the shooter himself - it went down this way:

It really is a dark and rainy night. The officer stops a car moving erratically. The driver - in his late 20s, 5-foot-2, 115 pounds and "falling down drunk" - attempts to flee into the woods. An expert would later testify that his ability to run with a 0.388 blood-alcohol level was something that ought to interest the Guinness Book of Records; that he was close to comatose - too drunk to have been a deadly threat to anyone but himself. Like Margaret Mitchell, the "deadly threat" in this case was quite small and very, very impaired.

The officer - mid-40s, about 5-foot-6, 160 pounds - easily catches the perp and wrestles him to the ground. The officer then places his knee in the suspect's back and begins to cuff him. The drunk somehow - perhaps an "adrenaline dump," according to one expert - is able to strike the officer with his fist, grab his flashlight, which is about 14 inches in length and weighs over a pound, and then get to his feet. Officer and drunk now square off in the dark.

Other cops rushing to the scene are in radio contact and only moments away. The officer has pepper spray and an Asp baton - implements of nonlethal force - on his belt, which he chooses not to use. Instead, he warns the drunk, twice, that he will shoot him if doesn't put the flashlight down.

Drunk swings flashlight. Officer draws his gun and shoots a single bullet, killing the man instantly.

Before testifying, I reviewed more than 2,000 pages of statements, interviews, autopsy reports, photos and reports of investigation. I reviewed and timed the actual recordings of the police calls surrounding the incident. I visited the crime scene. I conducted tests with police officer associates, attempting to reenact the shooter's version of events.

I considered all the data through the lens of my 35 years of experience in the making, supervising and reviewing of more than 5,000 felony arrests. I processed it through my own mental file of hundreds of chases through dark nights, when I had the gun in my own trembling hand, my finger on the trigger; when I feared terribly for my own life; when things happened so quickly that my body would react two beats before my brain registered the threat and I could only pray that my actions would not put an end to my career or my life.

I also thought of my son, Keith Richard Levine, a New York City police officer who was killed Dec. 28, 1991, when he chased an armed robber through dark Manhattan streets, unwilling to shoot him in the back. Perhaps he was thinking of the rules when he should have been thinking of his life. But the thief had no hesitation in turning and killing my son.

A police officer's choice to shoot is critical and irrevocable, and he doesn't have much time to make it. But he can't pull that trigger every time he fears for his life or we'd have a body count that would rival the battle of Gettysburg.

In the East Coast case, I found numerous inconsistencies and indications of deception in the officer's statements, which I cited in a 200-page report. I read my findings to a grand jury of average citizens, carefully explaining why it was my opinion that the drunk little perp couldn't have possibly offered a deadly threat, and why I believed the shooting unjustified.

When I finished, a woman raised her hand and asked: "Do you believe the officer might have genuinely feared for his life?" "I cannot answer that," I said. "That's what you are here for."

I could tell from the rest of their questions that they were deeply concerned about secondguessing a cop in danger; that they could not accept the notion that a cop would kill drunk or mentally impaired people armed with flashlights or screwdrivers unless it was absolutely necessary.

Maybe there are people whose tolerance of fear is set too low to ever be hired as cops in the first place, but that was not the question before the jurors. Nor was it the question before those judging the shooting of Margaret Mitchell. But perhaps it should have been.

I was told after I left that East Coast hearing there was a heated debate. But, in the end, they ruled that killing justified.

Michael Levine is one of the most decorated supervisory agents in the history of the Drug Enforcement Administration. A US Law Enforcement Procedure Expert, Mr. Levine has over 45 years of courtroom experience (civil & criminal) as a Trial consultant and Expert Witness, including 25 years of service with DEA, Customs, BATF, and the IRS Criminal Investigations Division.

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